DATE OF FILING : 23-07-2010.
DATE OF FINAL ORDER : 10-12-2010.
Smt. Ila Das,
w/o. Late Kanailal Das,
residing at 112, Gurudwara Road, Kanchrapara,
24 Parganas ( N ). COMPLAINANT.
Versus -
Smt. Lily Dey,
w/o. Late Gopal Chandra Dey,
30A, Narasingha Dutta road,
Howrah 711 101. OPPOSITE PARTY.
P R E S E N T
1. Honble President : Shri J. N. Ray.
2. Honble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
Representatives for the complainant : Shri Narayan Ch. Pal,
Shri S. Maji,
Ld. Advocate.
Representative for the opposite party
: Sk. Jafor Ikbal,
Ld. Advocate.
F I N A L O R D E R
This is to consider an application U/S 12 of the C.P. Act, 1986 praying for refund of consideration money along with interest for booking of a flat in default delivery and registration of flat and compensation towards deficiency in service and harassment, mental agony etc.
Fact of the case, in brief, is that the complainant had booked one residential flat at 1st floor at L.D. Apartment situated at 30A, Narasingha Dutta Road, Howrah, and paid total sum of Rs. 2,72,000/- on different dates out of the total agreed sum of Rs. 4,75,000/- against which complainant got receipts from husband of the o.p. during his life and thereafter from the o.p. after demise of her husband. Inspite of receiving the said advance payment from the complainant neither o.p. nor her husband allotted the flat at the L.D. Apartment in favour of the complainant either in the first floor or at any portion thereon and the same was allotted to different person after obtaining huge amount of money. The complainant personally intimated the o.p. several times regarding allotment of said flat but in vain. On 23-05-2007 the o.p. sent an advocates letter (the subject of the letter was the complainants letter dt. 20.04.2007) with an intimation that the o.p. is agreed to refund the sum of Rs. 2,58,400/- after deducting 5percent of total sum of Rs. 2,72,000/- which she has received earlier from the complainant and also assured to pay the said amount by 25 equal installments completed within two years. After that o.p. paid Rs. 10,000/- by a cheque of S.BI on 12-08-2007 and Rs. 5,000/- by cheque on 12-01-2009 but no other amount was refunded by the o.p. in favour of the complainant inspite of the written assurance by the o.p. Complainant sent a letter on 07-10-2009 and favourably considered a proposal and also requested to make payment immediately within 15 days otherwise complainant had to take legal shelter for breach of contract as well as to refund the said amount with cost and interest from the date of payment by the complainant in favour of o.p. Again complainant sent a letter through her advocate on 25-01-2010 stating that the aforesaid fact specifically with request to refund the balance amount Rs. 2,57,000/- ( Rs. 2,72,000 – Rs. 15,000 ) with interest at 10 percent per annum immediately within three weeks from the said date of letter failing which the complainant had to take legal shelter claiming all costs and interest. The said letter was duly acknowledged by the o.p. on 27-01-2010 as per postal remark.
The complainant states that the o.p. has no legal right to retain the said amount paid by the complainant for a long period. The o.p. has already made unfair trade practice by acknowledging the advance amount. The flat has not been allotted intentionally in favour of the complainant in spite of repeated demand and request. The complainant is suffering too much mental agony for that. So, there is deficiency in service on the part of the o.p. as she has no legal right to deprive the complainant by making breach of contract. Moreover, she has not refunded the admitted settled dues in spite of written undertaking through her legal representative and intentionally consumed the said sum and did not refund for long period. Again, the o.p. is not showing any interest regarding the return of the aforesaid amount. So, the complainant has no other alternative except to take legal shelter before this Forum for redressal of her genuine grievances. Therefore, there is deficiency in service and unfair trade practice on the part of the o.p. as well as violation of written undertaking as given by her in favour of the complainant. Therefore, the complainant prays for refund of principal sum of Rs.2,57,000/- as per schedule and approximately Rs.2,50,000/- towards interest and compensation for mental agony and sufferings of the complainant. Hence, the application.
O.p. appeared in this case and filed her written version. In her written version o.p. has stated that complainant has no cause of action against the o.p. The case is not maintainable in law and this case is hit by doctrine of estoppel, waiver, acquiescence. The o.p. denied all statements made by the complainant except specifically admitted by o.p. in the written objection and put the complainant to be strict proof thereof. But the o.p. has admitted that the complainant booked one residential flat at 1st floor at L. D. Apartment situated at 30-A, Narasingha Dutta Road, Howrah but the o.p. denied that the complainant paid the said amount of Rs.2,72,000/- on different dates out of the total consideration money of Rs.4,75,000/-. Again, o.p. has conceded in her written version that she was waiting for some time to deliver the flat in question, after that she has sold the flat to other. After lapse of ten years the complainant has approached for the flat. It is admitted by the o.p. that in the year 2007 the complainant has sent a notice and after receiving the notice o.p. duly replied stating the present state of affairs and paid Rs.10,000/- by cheque dated 29/12/2007 and also sent two cheques for Rs.10,000/- dated 12/08/2007 and 13/10/2007 but the complainant refused to receive the cheques. In her written version, o.p. has opined that she is still ready and wiling to repay the legal dues to the complainant after deducting 5percent damage and the amount already paid to the complainant in 25 installments within two years.
Counsel for O.P. argued that the petition is not maintainable as because there is no relation of customer and seller between the parties. He also argued that the case is barred by limitation as this petition was filed after ten years from the cause of action. Moreover, there is no agreement for sale of flat between the parties to this case and so there is no contract as to the effect of the case. So, the case is not maintainable in the eye of law.
In view of the pleading of the parties following points arose for determination :
Is there any deficiency in service on the part of the o.p. for neither refunding the advance amount nor delivering and registration of the flat in question
Is the complainant entitled to get an order in terms of Section 14 of the C.P. Act, 1986
DECISION WITH REASONS :
POINTS NO. 1 and 2 :
Both the points are taken up together for the sake of convenience of discussion and for brevity.
It is admitted fact that the complainant has booked one residential flat on 1st floor at N. D. Apartment situated at 30-A, Narasingha Dutta Road, Howrah. It is also admitted that the complainant has paid Rs.2,72,000/- as advance amount on different dates against receipt which are filed alongwith the petition. It is also admitted fact that the o.p. has neither delivered any flat in favour of the complainant nor refund the amount of advance payment. Only o.p. has refunded Rs.15,000/- to the complainant by two cheques.
The complainant sent an advocates notice on 20/04/2007 with a request to refund the money or to allot the flat. The o.p. also sent an advocates notice on 23.05.2007 in which o.p. agreed to refund Rs.2,58,400/- (deducting 5 percent from Rs.2,72000/-which was paid by the complainant). On the day of final hearing, o.p. was personally present alongwith her Counsel. It was admitted by her that the complainant has paid the advance amount on four different dates i.e. Rs.10,000/- on 05/02/2000, Rs.2,20,000/- on 28/02/2000, Rs.22,000/- on 10/10/2000 and Rs.20,00/- on 01/11/2000. These documents i.e. the receipts are not denied by the o.p. herself. Moreover, the receipt of Rs.22,000/- on 10/10/2000 was duly signed by the complainant not by her husband. And all other receipts are admitted by the o.p. that she and her husband taken this amount towards booking of the flat in question.
It is also admitted that o.p. issued a cheque of S.B.I. amounting to Rs.10,000/- on 12/08/2007 in favour of the complainant and again a cheque of Rs.5,000/- on 12/01/2009. And thereafter no money was paid by the O.P. to the complainant.
The cheque dated 12/01/2009 amounting to Rs.5,000/- was given by the O.P. and O.P. has admitted the complainants claim. Moreover, O.P. has admitted that she received the letters of the complainant through her advocate dated 20/04/2007, 07/10/2009, 25/01/2010 and 05/04/2010. So, in this case, the cause of action is continuing. So, the case is not barred by limitation.
Upon hearing of both sides and on scrutiny of the papers and documents filed on the record the Forum has observed that the complainant has paid Rs.2,72,000/- to the o.p. for booking of the flat in question. Out of which only Rs.15,000/- was refunded to the complainant by the o.p. It was admitted by both the parties. It is settled in principle of law that admitted fact need not be proved. Here, the complainant prays for refund with interest, in default, delivery and registration of the flat in question. O.P. personally appeared and stated that she ahs no scope to deliver the flat as there is no vacant flat in the aforesaid apartment. O.P. also stated that she must return the money but she prayed for an easy installments. O.P. is an widow and she has no source of income at present. Therefore, she prays for easy installments for three years.
Forum has observed that all the advance amount of Rs.2,72,000/- was taken in the year 2000. In the receipt dated 05/02/2000 it was clearly mentioned that the advance amount was taken by the husband of the O.P. for the booking of the flat in question. The amount (Rs.2,72,000/-) was withheld with the O.P. for so long ten years. We find that O.P. was agreed to return the amount of Rs 2,58400/- (deducting 5 percent from Rs.2,72,000/-) in 25 easy installments. After that only Rs.15,000/- was refunded. As the O.P. did not handover any flat to the complainant so the complainant’s prayer for refund of principal amount with interest is justified. So, the complainant should get the principal amount of Rs.2,58,000/- (Rs.2,72,000/- - Rs.15,000/-) with interest. There is sufficient cause for deficiency in service and unfair trade practice on the part of O.P.
One point should be mentioned here. As the O.P. is a widow and in distress condition the Forum has considered her prayer also and taken the decision liberally. But the O.P. must refund the amount accordingly as per order.
Points under consideration are accordingly decided.
Thus the application succeeds.
Hence,
O R D E R E D
That the consumer complaint is allowed on contest against the O.P. with cost assessed Rs.1,000/-.
That the O.P. is hereby directed to refund Rs.2,58,000/- as principal amount and at 6 percent p.a. interest of the aforesaid principal amount from December,2000 till the date of order to the complainant.
The O.P. is also hereby directed to pay Rs.20,000/- to the complainant towards compensation for harassment and mental agony caused by her.
That the O.P. is hereby directed to pay the aforesaid amount within six months in six equal monthly installments commencing from January, 2011, in default, the amount shall carry interest at 8 percent p.a. till full recovery.
Let certified copies of the order be supplied to the parties, free of costs.
Dictated and corrected by me.
