This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that being attracted by the advertisement of OPs, i.e. Vibgyor he wanted to purchase a flat being flat No.C/2/2/A, on the second floor, super built up area 287.5 sq. ft. containing one bedroom with one dining space, kitchen, one toilet and a balcony from the OPs (Developer) for a total consideration money of Rs.4,60,000/- against purchase of the flat, the complainant entered into an agreement on 13-07-2013 and out of Rs.4,60,000/- the complainant already made a payment of Rs.51,000/- vide cheque No.180910 dated 19-02-2013 drawn from SBI and on 19-03-2013 of Rs.41,000/- being cheque no.180914 from SBI thus amounting to Rs.92,000/- as booking money.
Due to sudden financial crunch the complainant decided to surrender the said booked flat and agreed on the terms of deduction of 10 percent as per agreement and get refund of the rest of money on 21st October, 2013 and to that effect the complainant wrote a letter to the OPs for handing over the original agreement for sale.
As per terms of the agreement, in case of termination of agreement by the purchaser, the amount will be refunded within 60 days of the notice of termination after a deduction of 10 percent.
Even after surrender of original agreement and cancelling of the booked flat, the OPs were reluctant to refund the amount to the complainant.
The complainant, again on 15-01-2014 wrote a reminder letter to the OPs about the refund of the money as he was in a sudden financial crisis but the OPs gave no reply.
That only on 27-06-2014, the complainant received Rs.29,800/-, he is yet to receive Rs.53,000/- deducting 10 percent of the deposit amount in spite of sending advocate’s letter on 31-07-2014.
No doubt as per agreement the complainant is a consumer who has suffered both physical and mental harassment and also suffered financial loss. In this circumstance, it is prayed that a direction may be given to the OPs to refund the amount the amount of Rs.53,000/- along with the interest at the rate18 percent p.a. on and from 28-10-2013 till the date of actual payment and also be pleased to direct the OPs to pay the compensation of Rs.80,000/- for causing physical and mental harassment of the complainant and a litigation cost of Rs.20,000/- payable to the complainant.
In this case, notices were served upon the OPs. On 16-10-2014 Ld. Advocate for the OPs appeared and undertook to file w/v by the next date, i.e. on 29-01-2014, but OPs failed to file w/v on the stipulated date and even on 12-11-2014 OPs did not care to file w/v. A penal cost of Rs.5,000/- was imposed to them, but they did not deposit the cost. OPs were very much reluctant to file w/v and/or E/Chief or whatsoever. OPs were found absent on repeated calls. So, the case was fixed for final hearing on 15-12-2014 and on that date OPs were found absent, so, the case was heard finally and accordingly, we proceed for reasonable decision.
Decision with Reasons
No doubt, in this case, every chance was given to the OP from 16-10-2014 to 15-12-2014 to file written version or E/Chief and to contest the case, but the OPs were found absent, but the copies of the complaint and other documents were sent to Vibgyor by registered post. The OPs received the documents but did not turn up. So, we must rely upon the documents and materials produced by the complainant. Fact remains that complainant has alleged that the complainant entered into an agreement for purchasing one-room flat as described in the complaint/petition and the agreement was executed on 13-07-2013. The complainant already paid Rs.92,000/-. The consideration amount of the flat was Rs.4,60,000/-. The complainant paid Rs.51,000/- as application money and further Rs.41,000/- on 20-03-2013 via SBI cheque No.180914. Due to some financial stringency, the complainant was compelled to cancel the booking. On 28-11-2013, he surrendered the original agreement though it was mentioned in the clause No.6.9.2 of the agreement that the amount will be paid back to the purchaser within 60 days of the notice of termination after deducting 10 percent of the money already paid by the purchaser till termination. The complainant received Rs.29,800/- on 27-06-2014, which is much beyond 60 days. The complainant is yet to get Rs.53,000/-, but no correspondence is made on the part of the vendor and they are very much reluctant to pay balance amount. So, it is the moral duty of the seller to refund the money to the purchaser. But the vendors are not in a mood to refund the balance amount after deducting 10 percent. The purchaser only received Rs.29,800/-. The vendor has not show any interest to refund the remaining Rs.53,000/- to the purchaser. They did not respond against the letter dated 15-02-2024 sent by the complainant. Again on 21-10-2013 the complainant sent another letter, but the OPs did not feel it has legal obligation to refund the money which should have been paid earlier. The complainant hopes that he would get the balance amount within few days. But till 31-07-2014 no payment was made so the complainant sent an Advocate’s letter on 31-07-2014, but till date no payment was made. So, it is clear that the vendors are here to deprive the complainant of his money and they have no desire to follow the terms and conditions of the agreement. Though OPs have no right to deceive the purchasers and thus complainant’s case is proved.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed ex parte against the OPs with a cost of Rs.5,000/-.
OPs are directed to pay Rs.53,000/- to the complainant out of the total advance amount and for causing mental agony, OP is further directed to pay a sum of Rs.10,000/- as compensation to the complainant within one month from the date of this order.
OP is hereby directed to comply the order very strictly within the stipulated period failing which for non-compliance of the Forum’s order penal interest at the rateRs.100/- per day shall be paid by the OPs till full satisfaction of the decree and even if it is found that OPs are reluctant to comply this order in that case, a penal action shall be started against them and further penalty shall be imposed as per Section 27 of the C.P. Act for repeated non-compliance of the Forum’s order. All penal interest shall be paid by the OPs to the Forums account
