JUDGEMENT

            This is a case U/s. 12 of the C.P. Act, 1986 filed by the complainant for an award directing the O.Ps. to refund Rs.1,00000/- which has been credited in the account of the O.Ps. towards the booking of the flat, to pay Rs.75,000/- as compensation for mental agony and harassment and to pay Rs.25,000/- as litigation cost.

            The complainant’s case in short is that the complainant desired to purchase a flat from the O.Ps. and as per direction of the O.Ps. the complainant booked one flat at Sonar Bangla Phase-II, in Testa Block, 6th floor, worthing 1074 Sqft. super built-up area in B type.  The complainant issued two numbers of cheques of Rs.1,00000/- each in favour of the O.Ps. on 30.1.2013 vide cheques No.171861 and 456566.  But due to some family problem, the complainant decided to cancel said booking of the flat.  She immediately intimated the same to the O.Ps. without any delay.  The complainant took attempt to stop the payment of said two cheques.  On the basis of the prayer of the complainant, the payment of one cheque being No.171861 out of said two cheque has been stopped by the concerned UBI Bank but the payment of another cheque vide cheque No.456566 for Rs.1,00000/- was not stopped and said amount was credited to the SBI Bank A/c. of the O.Ps. on 20.3.2013.  Due to wrong entry of the cheque number in the application, the payment of above cheque No.456566 was not stopped.  Thereafter, the complainant went to the office of the O.Ps. and requested them to refund the amount of Rs.1,00000/-.  The O.Ps. agreed to repay the said amount after one year.  Being assured, the complainant did not take any step to get refund of said amount for such period of one year and after the month of April, 2014, the complainant requested the O.Ps. to refund the said amount of Rs.1,00000/-.  But the O.Ps. did not pay any heed.  The complainant by sending a letter dated 11.8.2014 requested the Director of the O.Ps. to refund the money as early as possible.  But inspite of service of said letter the O.Ps. did not take any step to refund the amount.  Thereafter, the complainant by sending a legal notice dated 25.8.2014 through her Ld. Advocate Mr. Amalendu Sengupta, requested the O.Ps. to refund the said amount of Rs.1,00000/- within fifteen days from the date of receipt of the notice.  Inspite of service of said

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notice, the O.Ps. did not take any step to refund the amount and they kept themselves silent.  The complainant wrote the written complaint on 16.9.2014 against the O.Ps. before the Assistant Director, CA & FBP, Durgapur Regional Office, requesting to take proper steps against the O.Ps.  The Assistant Director, CA & FBP, Durgapur Regional Office, by sending a letter dated 29.9.2014 vide Memo No.522/CA & FBP/DGP requested the O.Ps. to attend a tripartite meeting on 14.10.2014.  On receipt of the said letter one Atanu Roy, on behalf of the O.Ps. attended the meeting and after discussion he assured that the quantum of refund would be determined after consulting their higher authority and requested to fix another date for final disposal and on the basis of said request next date was fixed on 25.11.2014.  But on said date none from the side of the O.Ps. attended the office of the Assistant Director, CA & FBP, Durgapur Regional Office.  Accordingly, Assistant Director, CA & FBP, Durgapur Regional Office, by issuing a letter to the complainant on 25.11.2014 intimated that the grievance of the complainant could not be redressed through the process of mediation due to non-response on the part of the O.Ps.  There was deficiency in service and unfair trade practice on the part of the O.Ps.  So, the complainant is entitled to get an award as mentioned above.  Hence, this case with the prayer as mentioned above.

            The O.Ps. contested this case by filing written version while denying the case of the complainant and stating inter-alia that the case is not maintainable, the complainant has no causes of action, there is/was no relationship of consumer and service provider in between the complainant and the O.Ps. and the complaint is barred by limitation.  It has been further stated by the O.Ps. that after the so called booking the complainant did not execute the agreement,  however, due to commitment arising out of receiving the money, the O.Ps. are bound by an implied condition that they cannot negotiate about the self same property with any other person, the O.Ps. also had to undertake or enter into some other commitments with other parties, so that the O.Ps. may fulfill the possible contractual liability towards the complaint, it is not the matter of wish of the complainant that he can back out as and when she wishes, the O.Ps. have a claim against the complainant as to forfeiture of the amount, if not the whole at least a part  subject to determination,  but  they have no  liability to file  a counter claim against

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the complainant in this Forum, the O.Ps. made their submission before the Assistant Director, CA & FBP, Durgapur Regional Office, Govt. of West Bengal,  but on last date i.e. on 25.11.2014 the Director of O.Ps. namely Subodh Kumar Dutta failed to attend the office of the Assistant Director, CA & FBP, Durgapur Regional Office as he was suffering from Neuropathy and the allegation on financial stringency does not arise also not seem to be correct.  It is, therefore, claimed by this O.Ps. that the case is liable to be dismissed with cost.

DECISION WITH REASON

            To prove her case the complainant has relied upon her evidence on affidavit which has not been challenged by putting questionnaire and obtaining answer of the questionnaire from the complainant.   The complainant has also relied upon the photocopies of money receipt issued by the O.Ps. showing acceptance of two banker’s cheque for Rs.1,00000/- each, relevant portion of pass book of the complainant lying in S.B.I., Kolkata Main Branch, letter dated 11.8.2014 issued to the Director, Sonar Bangla (O.P. No.1), lawyer’s letter dated 25.8.2014 issued to the Director of O.P. No.1, letter sent to the Assistant Director, CA & FBP, Durgapur Regional Office, notice dated 29.9.2014 issued to the O.P. and notes and orders of the Assistant Director, CA & FBP, Durgapur Regional Office passed in file No.1473/D/OTH and the letter dated 25.11.2014 issued to the complainant.  We carefully perused the evidence on affidavit and the documents as mentioned above.

            The case of the complainant that she with an intention to purchase a flat at Sonar Bangla, Phase-II, in Testa Block, 6th floor, worthing 1074 Sqft. super built-up area in B type, issued two banker’s cheque for Rs.1,00000/- each in favour of the O.Ps. and subsequently on the basis of the prayer of the complainant the one banker’s cheque for Rs.1,00000/- was not encashed and paid to the O.Ps.  but the banker’s cheque being No.456566 for Rs.1,00000/- was encashed and same was credited to the bank account of the O.Ps., is not disputed.  So, from the admission of the parties it is clear that the complainant paid Rs.1,00000/- to the O.Ps.   In the complaint the complainant has stated that immediately after the issuance of the banker’s cheque, the  complainant took  a decision  that she  would  not purchase  the flat from the O.Ps.

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and she took attempt to stop the payment of the cheques,  but due to wrong entry of the cheque number in the application the banker’s cheque No.456566 for Rs.1,00000/- was encashed and the same was credited to the SBI A/c. of the O.Ps. on 20.3.2013.  This case of the complainant has also not been denied by the O.Ps.  It is admitted that no written agreement was executed in between the parties but the O.Ps. has stated in their written version “ due to commitment arising out of receiving the money, the O.Ps. were bound by an implied condition that they cannot negotiate about the self same property with any other person”.  From the above statement it is clear that the O.Ps. have admitted that the complainant entered into an oral agreement with the O.Ps. to purchase the flat in question and in that connection she issued two banker’s cheque and out of said two cheques one being No.456566 was encashed and credited to the bank account of the O.Ps.  The relationship of consumer and service provider between the parties was established with such agreement and receipt of advance money.  It is not disputed that the O.Ps. received such rupees of one lakh from the complainant.  In the written version nothing has been mentioned regarding action which would be taken for non-compliance of the terms agreement on the part of the complainant.  It is admitted that said flat has not been sold to the complainant.  From the materials on record it appears that immediately after the issuance of the cheques the complainant took appropriate steps to stop the payment of the cheques to the O.Ps. and the complainant by adducing evidence has stated that immediately she intimated her intention to the O.Ps. and requested the O.Ps. to refund such amount of Rs.1,00000/-.  From the material on record it is clear that the complainant to get back the said amount of Rs.1,00000/- from the O.Ps. sent legal notice and made application before the Assistant Director, CA & FBP, Durgapur Regional Office  and the Assistant Director of said Regional Office took steps to settle the dispute but he failed to redress the dispute for non-appearance of the O.Ps. on the last occasion.  The O.Ps. have admitted that their representative appeared before the Assistant Director, CA & FBP, Durgapur Regional Office and there a discussion was made.  The complainant by adducing evidence has stated that the representative of the O.Ps. assured that the quantum of refund should be determined after consulting  their higher authority  and requested to  fix another date  for final settlement.  From

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the record it appears that the date on 25.11.2014 was fixed for final settlement in the office of the Assistant Director, CA & FBP, Durgapur Regional Office but on said date none appeared on behalf of the O.Ps.  In the written version, the O.Ps. have stated that due to illness of Director on behalf of the O.Ps. none appeared on such date i.e. on 25.11.2014.

            In view of the above discussion, it is clear that the relationship of consumer and service provider between the complainant and the O.Ps. was established and the O.Ps. received Rs.1,00000/- from the complainant by encashing a banker’s cheque being No.456566 on 20.3.2013.  It is also clear that the oral agreement made in between the parties has not yet been acted upon and the complainant intimated her unwillingness to purchase the flat to the O.Ps. and requested them to refund the advanced money of Rs.1,00000/-.  As there was no written agreement and as there is no evidence on record showing that the O.Ps. are entitled to forfeit any portion of the advanced money and also as the flat in question has not been sold to the complainant till this day, the O.Ps. are liable to repay such amount of Rs.1,00000/- to the complainant.

            In view of the above discussions, it has been decided that such amount of Rs.1,00000/- was credited to the account of the O.Ps. on 20.3.2013 and immediately after such encashment the complainant intimated her unwillingness and made request to return back such advanced money to the O.Ps. and also the complainant was forced to make prayer before the  Assistant Director, CA & FBP, Durgapur Regional Office for mediation and ultimately she was forced to come before this Forum for the fault of the O.Ps.  So, the O.Ps. are liable to pay interest over such amount of Rs.100000/- and to pay compensation and litigation cost to the complainant.

            Accor4dingly, the case succeeds.

            Fees paid is correct.  Hence, it is

Ordered

that the complaint case being No.32/2015 is allowed on cost.  Accordingly, the complainant do get an award directing the O.Ps. to pay Rs.1,00000/- along with interest @ 9% p.a. for the period from 20.3.2013 to the date of realization, to pay Rs.10,000/- as compensation for mental

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agony and harassment and to pay Rs.2000/- as litigation cost to the complainant within 45 days  from this day, failing which the complainant will be at liberty to put this order in execution in accordance with law.

            Let the copies of this order be supplied to the parties free of cost.

                                                                                                                 (Asoke Kr. Mandal)

             Dictated and corrected by me.                                                        President       

                                                                                                                  D.C.D.R.F., Burdwan

                  (Asoke Kr. Mandal)

                           President

                   D.C.D.R.F., Burdwan

                                                                               (Pankaj Kr. Sinha)

                                                                                    Member    

                                                                             D.C.D.R.F., Burdwan