Date of filing: 1/6/2018
Date of Judgment: 22.11.2021
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed under Section 12 of the C.P Act , 1986 by the complainant namely Smt. Sharmila De against the opposite parties ( referred to as O.Ps hereinafter) namely 1) A.G Construction, represented by it sole Proprietor namely Sri Soumen Chakraborty and 2) Mantulal Chakraborty , alleging deficiency in service on their part.
The case of the complainant ,in short, is that O.P no.2 being the owner of the land entered into a Development Agreement dated 19.7.2013 with the O.P-1. Subsequently, O.P-1 entered into 2 separate Agreements dated 24.9.2014 with the complainant to sell 2 flats in the proposed project at a consideration of Rs.16,00,000/- ( 8,00,000/- each ) . Complainant paid a total sum of Rs.3,20,000/- . But, in the month of August, 2016, O.P-1 the developer intimated to the complainant that it was not possible for him to start and complete the proposed project and as such he intended to refund the entire earnest money or the part payment of Rs.3,20,000/- to the complainant together with the interest thereon @12% p.a. Consequently, O.P/developer issued an account payee cheque dated 31.8.2016 amounting to Rs.3,73,600/- to the complainant . But the said cheque when presented was dishonoured. Thereafter, O.P/developer gave a written undertaking dated 24.1.2017 to the effect that he will pay all the amounts within 31.3.2017 along with interest @12% p.a and in pursuance of the said written undertaking the O.P/developer paid Rs.1,60,000/- on 29.3.2017 and Rs.60,000/- on 19.7.2017 and thus he only paid Rs.2,20,000/- out of total principal amount of Rs.3,20,000/- paid by the complainant and no interest was paid. Inspite of repeated requests as the money has not been refunded along with interest, the present complaint has been filed by the complainant ,praying to direct the O.P-1/developer to pay a sum of Rs.1,00,000/- towards the principal amount, to pay a sum of Rs.91,400/- as the amount accrued towards interest @12% p.a calculated up to the month of April 2018 on the principal amount of reducing balance, to pay interest @12% p.a on Rs.1,00,000/- from May, 2018 and to pay litigation cost of Rs.30,000/-.
The complainant has annexed with the complaint copy of 2 Agreements for sale entered into between the parties, money receipts, cheque which was dishonoured along with bank memo slip, pass book, undertaking given by the O.,P-1 on 24.1.2017 and a letter dated 9.6.2017 sent by the complainant to the O.P/developer.
It appears from the record that O.P-2 ,the owner, did not take any step inspite of service of notice and thus, the case proceeded exparte against him vide order dated 14.8.2018.
O.P-1 has contested the case by filing written version, denying and disputing the allegations made against him. It is the specific case of the O.P-1/developer that the complainant did not perform her part of contract in terms of the agreement entered into between the parties and did not make payment in terms of the schedule of payment as stated in the agreement for sale dated 24.9.2014. Therefore, the said agreement for sale on expiry of 15 months does not exist and thus, there is no privity of contract between the parties. Complainant is not a consumer as specified under the provisions of C.P Act. It is also contended by the O.P that the complainant, in fact, had invested the money in the proposed project and thus, the relation between the complainant and the O.P-1 is only of a creditor and debtor. So, the O.P-1 has prayed for dismissal of the case .
Following points required determination:-
- Whether the complainant is a consumer under the provisions of C.P. Act ?
- Whether there has been any deficiency in service or unfair trade practice on the part of the OPs?
Decision with reasons
Point no.1:
It is contended by the O.P/developer that the complainant s not a consumer under the provision of Consumer Protection Act since complainant failed to make payment within 15 months from the date of agreement dated 24.9.2014. On or after 24.11.2015, there does not exist any agreement between the parties and thus there is no privity of contract between them . Cancellation of agreement dated 24.9.2014 was done at the behest of the complainant herself.
On a careful scrutiny of the case of the complainant, it appears that she has claimed that it is the O.P/developer who intimated her in the month of August, 2016 that it was not possible for him to start and complete the proposed project and thus, intended to refund the entire earnest money. She has also filed the cheque dated 31.8.2016 paid by the O.P/developer towards refund of earnest money alongwith interest. However, according to her said cheque was dishonoured. This aspect regarding refund shall be discussed while discussing the case on merits in point no.2. But it is evident that two separate agreements were admittedly executed between the parties, whereby complainant agreed to purchase two flats at a total consideration of Rs.16,00,000/- and made payment of earnest money of Rs.3,20,000/- in total. So, complainant hired the housing construction service of the O.P/developer . But she was not handed over the flat within time as per the terms of the agreement . If that be so, complainant being a consumer is entitled to seek relief of refund of earnest money paid by her along with interest as per terms and conditions of the agreements and thus, contention of the O.P-1/developer that the complainant is not a ‘consumer’ cannot be accepted and thus rejected.
Point no.2:
As discussed above, execution of two agreements dated 24.09.2014 between the parties is an admitted fact. It is also an admitted fact that complainant paid total sum of Rs.3,20,000/- out of total consideration of Rs.16,00,000/-. O.P-1 has however contended that complainant had her own house and ,therefore, she was interested in investment in the project and thus, she entered into two agreement for sale . But complainant in her reply to the questionnaire of the O.P-1 has categorically stated that she resides in a tenanted residential accommodation and thus, entered into agreements to purchase the flats and not for the purpose of the investment. This statement of the complainant that she resides in a tenanted accommodation is not denied or disputed by the O.P/developer anywhere. The claim of the complainant that the O.P/developer himself intimated her along with two other purchasers in that project that he was unable to complete the project and thus would refund the money paid by them along with interest is substantiated from the cheque dated 31.8.2016 of Rs.3,73,600/- . According to the complainant, O.P-1 issued the said cheque towards refund of principal sum of Rs.3,20,000/- paid by her along with interest. The payment of this cheque has not been denied or disputed b y the O.P/developer. However, complainant has also filed the bank’s cheque return memo which shows that the cheque was dishonoured on the ground “Payment stopped by the drawer”.
It further appears that subsequently O.P/developer has also given an undertaking on 24.1.2017 to the complainant along with two other purchasers of other flats in that project that he shall refund the principal amount within 25.2.2017 and interest @12% p.a within 31.3.2017. O.P/developer has not disputed or denied the execution of this undertaking. In this undertaking dated 24.01.2017, O.P has nowhere stated that the complainant failed to make the payment as per the terms and conditions of the agreement. Had there been any default or act of cancellation of the agreement at the behest of complainant as alleged by the O.P-1, then he would have mentioned in the undertaking that they were not entitled to any interest as per terms of the agreement. But O.P not only has not stated anything in this regard in the undertaking dated 24.01.2017 , but he also issued the cheque dated 31.8.2016 which included the interest , though it was dishonoured. So, the contention of the O.P/developer that payment was not made by the complainant as per schedule of payment in the agreement or that cancellation of agreements was done at the behest of the complainant is nothing but an afterthought and subsequent development for the purpose of this case. So, in view of the discussions as highlighted above, as admittedly complainant has been paid Rs. 2,20,000/- towards refund out of principal sum of Rs.3,20,000/-, complainant is entitled to refund of balance of principal sum of Rs.1,00,000/-. She is also entitled to the interest on the sum @12% p.a in view of the terms stated in clause 13 of the agreements.
Clause 13 of the agreement provides “ Ïn the event of any default on the part of the owner/developer , if the said new building and the said flat/unit/apartment are not completed within the stipulated period, the purchaser shall be entitled to and are hereby authorised to claim interest at the rate of 12% p.a on the amount paid to the vendor”.
As it appears from the document filed by the complainant that the last payment was made on November, 2015 and also as 15 months as per agreement expired on 24th November, 2015, O.P/developer is liable to pay interest @12% on the total sum of Rs.3,20,000/- from 25.11.2015 to till 19.07.2017 ( the date of payment of Rs.2,20,000/- by the O.P/developer) and since thereafter he is liable to pay interest @12% p.a on the balance amount of Rs.1,00,000/-. As interest is allowed, we find no justification to ass any order as to compensation as prayed by the complainant.
Case is liable to be dismissed against O.P-2 , the owner as admittedly payment was received by the O.P-1.
Hence,
ORDERED
CC/325/2018 is allowed on contest against O.P-1 and dismissed exparte against O.P-2. O.P-1 is directed to refund sum of Rs.1,00,000/- along with interest on the said sum @12% from 20.7.2017 to till this date within two months from the date of this order.
O.P-1/developer is further directed to pay interest @12% p.a on the principal sum of Rs.3,20,000/- from 25.11.2015 to till 19.07.2017 within the aforesaid period of two months. He is also directed to pay litigation cost of Rs.10,000/- within the aforesaid period of two months .
In default of payments, entire sum shall carry further interest @ 12% p.a till realisation.
