DATE OF FILING: 02.12.2013
DATE OF DISPOSAL: 20.12.2017
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Party ( in short the O.P) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he was earlier staying at Mumbai and after leaving Mumbai wanted to settle at Berhampur by purchasing of a plot of land for construction of his residential house. The O.P. persuaded the complainant for an agreement in respect of registration of a plot in Khata No.304/19, Plot No.165 of 1638 with 34 Decimals situated at Srikhetra Bihar of Sankarpur Mouza under Berhampur Sadar Thana for consideration of Rs.25,50,000/-. For purchase of aforesaid plot of land, the O.P. claimed an advance of Rs.4,50,000/- only and accordingly an agreement was signed between both parties on 03.02.2012. In terms of the said agreement, the O.P. received sum of Rs.4,50,000/- and promised to register the plot in the name of the complainant. As per the term and conditions of the agreement dated 03.02.2012, the O.P. should have registered the plot in question within three months i.e. by 03.05.2012. The complainant ran to the door of the O.P. time and again for registration of the plot but the O.P. did not respond in any manner. The complainant issued one Legal Notice on 04.10.2012 asking the O.P. for refund of money of Rs.4,50,000/- only along with interest @15% within 15 days but the O.P. even after receipt of the said notice kept silence without responding the same. When the O.P. did not give any heed to the grievances of the complainant, he has filed this consumer dispute alleging deficiency in service on the part of the O.P. and prayed to direct the O.P. to refund Rs.4,50,000/- only with interest @15% from the date of agreement i.e. 03.02.2012 along with to pay compensation of Rs.50,000/- towards harassment and causing mental agony and to pay Rs.5,000/- towards cost of the litigation in the best interest of justice.
3. Notice was issued against the Opposite Party but he neither chooses to appear nor filed any written version. Hence, the O.P was declared exparte on 05.05.201 and proceeded accordingly.
4. On the date of exparte hearing of the consumer dispute, we have heard the learned counsel for the complainant and have gone through the complaint, written argument and other materials placed on the case record. During the course of hearing of the matter, the learned counsel for the complainant contended that the complainant for the purpose of construction of a residential building purchased a plot of land from the O.P. by executing an agreement for registration of plot in Khata No.304/19, Plot No.165 of 1638 with 34 decimals located at Srikhetra Vihar in Sankarpur Mouza, Berhampur under Sadar Thana for a consideration amount of Rs.25,00,000/- only and for the same the O.P. claimed an advance amount of Rs.4,50,000/- only. Accordingly an agreement was signed on 03.02.2012 and the complainant paid an amount of Rs.4,50,000/- to the O.P. on different dates i.e. on 11.10.2011 vide cheque No.49304 for Rs.1,00,000/-, on 25.10.2011 vide cheque No.49307 for Rs.1,00,000/-, on 07.02.2012 vide cheque No.49319 for Rs.2,00,000/- and a sum of Rs.50,000/- was paid as cash payment. It is also submitted that as per the agreement the O.P. should have registered the plot in question by 03.05.2012 in favour of the complainant. But the O.P. did not care to register the plot for which the complainant also issued a registered legal notice on 04.10.2012. However, the said legal notice also did not reap any fruitful result. The complainant finding no other way filed this complaint before this Forum for redressal of his grievance and claimed the relief as prayed above.
5. We have heard and perused the pleadings of learned counsel for the complainant and thoughtfully considered the same. We have also verified the documentary evidence placed on the case record and corroborated same. On careful verification of copy of agreement signed and executed by both parties, it reveals that the O.P executed an agreement with the complainant on 03.02.2012 for sale of aforesaid landed property to the complainant for an amount of Rs.25,50,000/- on payment of Rs.4,50,000/- as advance towards sale consideration and as per the contract the O.P will register the plot in the name of complainant within 3 months of execution of the agreement. However, the O.P. failed to register the aforesaid plot in the name of the complainant for which the complainant time and again requested the O.P. but the O.P. did not care for that and even the legal notice could not reap any fruitful result. The complainant finding no way out, has filed this consumer dispute. The most unfortunate thing in this case is that even after duly notice was served on the O.P., the notice was returned and the O.P. did not appear and not filed his version of this case as a result the Forum issued notice through paper publication on 26.02.2014. However, that also did not serve any purpose and the O.P. remained silent and did not prefer to appear and not contested the case. In the foregoing peculiar fact and circumstances, in our considered view we would like to say that where no written version had been filed by O.P. to controvert the allegations of the complainant, the same is to be held correct. In the instant case, as per the complaint, the O.P. has received Rs.4,50,000/- as mentioned herein above on different dates on the promise of registering a plot as stated above through a valid agreement but failed to honour the terms and conditions of agreement which amounts to breach of agreement and unfair trade practice on part of the O.P. Where the O.P is failed to get registered the plot in the name of the complainant on receipt of advance amount, the O.Ps is liable to refund the amount to the complainant with interest. Hence, the O.P. is liable to refund the advance amount of Rs.4,50,000/- to the complainant with interest @ 8% per annum from the date of agreement i.e. from 03.02.2012 till the amount actually paid to the complainant.
6. Similarly, in this dispute, the complainant has prayed for Rs.50,000/- towards compensation for causing harassment and mental agony to the complainant by the O.P. due to non-registration of the plot and non-refund of advance money. However, the complainant has not submitted any cogent and convincing documentary evidence of his loss and suffering hence we are not inclined to award such huge amount as compensation for harassment and suffering from mental agony. Besides, we have also directed the O.P to pay interest at the rate of 8% per annum from the date of agreement to till actual payment is made to the complainant. In our opinion, where interest is directed to be paid on the amount received by the O.P, no orders can be passed for payment of compensation. However, we are convinced to consider the prayer of the complainant and agreed to award cost of litigation. As far as the cost of litigation is concerned, we feel that a sum of Rs.3,000/- will be just and proper as per the fact and circumstances of the case to be awarded as cost of litigation to be paid by the O.P. for compelling the complainant to file this consumer complaint with the help of a professional Advocate to assert his rights. It is also a fact that the complainant has paid court fees and incurred expenditures for filing this consumer dispute and also paid professional charges of an Advocate. So, the O.P. is liable to compensate the legal expenses of complainant on payment of Rs.3,000/- as cost of litigation as quantified above. In the light of the foregoing discussion, deliberation and considering the fact and circumstances of the case, we allowed the case of the complainant against the O.P. who is liable to refund Rs.4,50,000/- to the complainant with interest @ 8% per annum and to pay Rs.3,000/- towards cost of litigation.
7. Resultantly, the complaint of the complainant is allowed against the O.P. who is liable to refund Rs.4,50,000/- with interest @8% per annum to the complainant from the date of agreement i.e. from 03.05.2012 till actual refund is made. As discussed, the O.P. is also directed to pay Rs.3,000/- towards cost of litigation to the complainant to meet his legal expenses. The above order shall be complied by the O.P. within 45 days of receipt of this order failing which the complainant is at liberty to recover the whole amounts under Section 25/27 of the Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly. There is no order as to compensation.
8. The order is pronounced on this day of 20th December 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
