By : SMT. BANDANA ROY, PRESIDENT

          The gist of the complaint case is that the OP declared to sell his two storied building along with land thereof due to want of money for repayment of bank loan. The complainant was interested to purchase the said building and accordingly an agreement was made on 2810.14 in between her and the OP on a stamp paper. Subsequently another agreement was made between them on 29.10.14. On 28.10.14 the OP received Rs. 5,00,000/- through cheque being No. 121303 as an advance from the complainant out of total value of the land as Rs. 60,00,000/-. The said cheque was en cashed by the OP on 30.10.14 and it was settled that the final registration will be done as and when the complainant will arrange for the rest money. Complainant arranged for the rest money and informed the OP for registration of the final sale deed but the Op refused to register the sale deed on the ground that he could not settle the matter with the bank authority. Complainant made several correspondence with the OP personally and also through mobile phone, but every time the OP gave some assurance but did nothing. Complainant got an information from a reliable source that the OP is trying to sell  the scheduled property to some other person at higher price after final settlement with the bank authority. Finally the complainant served a legal notice upon the OP for refund of the advance amount of Rs. 5,00,000/-which the OP received but the OP  did nothing till date.

          In the aforesaid circumstances, the complainant has filed this complaint petition with the prayers made therein.

          The Opposite party filed Witten version and contested the case. In the written version the OP denied all the material allegations of the complaint petition. He has contended that the claim of compensation is bogus and absurd one. At present he is 65 years old and out of an accident he is now bed ridden. During the smooth running of the business the OP took several loans from banks by mortgaging his properties including the case property situated at plot no. 2915 at mouza Basudevpur PS Durgachak, Halida measuring about 7.5 decimals and building thereon from the State Bank of India. When the business of the OP deteriorated the OP became a defaulter and could not repay the loan of the bank and the bank in due course send demand notice under the existing provisions of law and the amount of bank demand was Rs. 51,69,526.31 only, when the market price of the scheduled property became Rs. 73,00,000/- approximate. However he signed the agreement on a stamp paper of Rs.50/- namely Baynanama with the complainant for sell of the said property for submission before the bank authority for earning bank credence wherein the consideration money of the land was shown as Rs. 60,000,00/-.A separate agreement was also made on a white paper wherein price of the land was shown as Rs. 73,00,00/-. On 28.10.14 an agreement over a non-judicial stamp of Rs 50/- was made between them along with a separate agreement and the complainant paid Rs. 5,00,000/- as advance money for purchase of the case property. The OP also executed another agreement declaring that if he fails to recover the bank loan and fails to release the land in question  he would return the advance money to the complainant with bank interest and as security he deposited a deed in respect of  his another property valued  Rs. 3,00,000/- with the complainant which is still lying in her custody. But surprisingly the complainant took a U turn and declared that she is not willing to purchase the property any more for her own personal reasons and stated this fact before the bank authority and thus put the OP in a state of hopelessness and frustration. Now the bank on 24.12.14 has issued auction notice as per law through newspaper for taking possession of the scheduled land.

       As a result, the OP prays for dismissal of the case being filed with a mala fide intention.

       The point for decision in the case is whether the complainant is entitled to get the relief as prayed for.

                                                Decision with Reasons.

      We have perused the complaint and the written version as well as the documents filed by the respective parties.

       Admittedly the complainant paid Rs. 5,00,000/- as an advance for purchase of the case land by virtue of an agreement dated 29.10.2014 . Admittedly one notice under the Serfesi Act was issued on 27.08.14 against the OP for default in payment of loan by State bank of India. Knowing fully well about the said notice and default of loan the OP entered into the agreement for sell of the property and took Rs. 5,00,000/- as an advance from the complainant. It is true that when notice  under the Serfesi Act  was issued against the OP then generally a complaint case is not maintainable but here the case is different as the OP knowing fully well about the notice and disposal of the property in favour of the bank took Rs. 5,00,000/- from the complainant to sell the property. This is an unfair practice and the complainant should get refund of the amount of Rs. 5 lakhs from the OP. complainant is also entitled to compensation of Rs. 15,000/- for harassment and mental agony and also litigation cost of Rs. 3,000/- from the OP.

         Hence, it is

ORDERED

              That the complainant case No. 265/16 be and the same is allowed on contest against the Opposite Party without any order as to costs.

           The OP is directed to pay Rs. 5,00,000/- with  interest @ of Rs. 9% per annum from the date of filing of this complaint case till actual realization. The OP is also directed to pay compensation of Rs. 15,000/- along with  litigation cost of Rs. 3000/- to the complainant within two months from the date of this order failing which the OP will  have to pay a sum of Rs. 100/- per day as punitive charge which will be payable  to the Consumer Welfare Fund of this Forum.

            Let copy of the judgment be supplied to all the parties free of costs.