HON’BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT

       This appeal has been preferred against the judgment and order dated 16-11-2016 passed by Ld. DCDRF, Kolkata, Unit-III (South), West Bengal in CC 145 of 2016 where Ld. Forum concerned while disposing of the complaint case being CC/145/2016 allowed the same in part and directed the OP/appellant herein (hereinafter referred to as OP) to refund a sum of Rs. 5,69,752/- (Rupees five lakh sixty nine thousand seven hundred fifty two) with interest @ 10% per annum, from the date of filing of this case, to the complainant/respondent within the two months from the date of this order and further the OPs were directed to pay compensation of a sum of Rs. 8,000/- (Rupees eight thousand) and litigation cost of Rs. 5,000/- (Rupees five thousand) within the stipulated period with default clause.

       Being aggrieved by and dissatisfied with the said judgment and order dated 16-11-2016, the present appeal has been preferred by the OPs no. 1 and 2/developers.

       Briefly stated, the case of the complainant/respondent was that the OPs started the development work in the project measuring an area of 2736 sq. ft. on plot no. 1408, Khatian No. 882, J. L. No. 22 of Mouza – Rahuta, P.S. Jagaddal, North 24-Paragnas known as “Kalyani city Enclaves” where the complainant booked one plot being plot no. 52 of said township project on condition to pay a sum of Rs. 10,07,000/-  (Rupees ten lakh seven thousand) by virtue of an agreement for sale dated 31-05-2013 with the OP and paid Rs. 5,30,000/- (Rupees five lakh thirty thousand) as advance and balance Rs. 4,77,000/- (Rupees four lakh seventy seven thousand) was due to be paid in 48 installments as per said agreement. Thereafter the complainant paid a sum of Rs. 19,876/- (Rupees nineteen thousand eight hundred seventy six), Rs. 9,938/- (Rupees nine thousand nine hundred thirty eight) and Rs. 9,938/- (Rupees nine thousand nine hundred thirty eight) in total Rs. 39,752/- (Rupees thirty nine thousand seven hundred fifty two) as per agreement, the development work was likely to be finished within three years as assured by the OPs and the complainant paid the above noted amount on good faith but the OPs authority demanded rest of the installments on every occasion though they did not have any interest to develop the project area as early as possible and due to some unavoidable circumstances the complainant became defaulter and thereafter the OP’s/Authority created pressure upon the complainant to pay rest of the amount without any reasonable cause and the conduct of the OPs suggested that they had intention to grab the money. The complainant wrote some letters to the authority of the OP on 18-11-2015 and 23-12-2015. The complainant believed that he had right to get refund of the entire amount paid to the OP who did not develop the project area, for deficiency in service, for mental agony and harassment. The complainant was a bonafide claimant of money to the tune of 5,86,752/- (Rupees five lakh eighty six thousand seven hundred fifty two) which was not paid by the OPs/appellants as refund, leading the complainant to take recourse of the DCDRF concerned for refund of the said amount of Rs. 5,69,752/- (Rupees five lakh sixty nine thousand seven hundred fifty two), compensation for mental agony and harassment and other consequential reliefs like litigation cost etc.

       The appellants being the OPs of CC/145/2016 filed a written version to contest the complaint case and disclosed their defence that the complaint case was not maintainable in law and it was bad for defect of parties. Denying the status of the complainant as a consumer under the OPs, they contended that the complainant was defaulter in making payment of installments to the OPs. They also claimed that the complainant being the defaulter was not entitled to have any relief from the Forum concerned as the complainant deliberately failed to pay and clear up the installments on time as per schedule and that apart despite demand notice the complainant ignored to pay the installments for which the OPs cancelled the agreement dated 31-05-2013 as well as the booking of the plot no. 52 and requested the complainant to collect the deposited amount after deduction as per agreement. The written version of the OP also disclosed that the complainant admitted his fault but did not come to collect the deposited amount after deduction as per agreement. The OPs admitted that the complainant paid only Rs. 5,69,752/- (Rupees five lakh sixty nine thousand seven hundred fifty two) but he failed to make payment as per schedule and became defaulter for which he was unable to acquire the status of a consumer and in the back ground the OPs/appellants prayed for dismissal of the complaint case.

       Upon careful consideration of materials on record Ld. Trial Forum in the judgment impugned allowed the complaint case in part and directed the OP to refund the amount of Rs. 5,69,752/- (Rupees five lakh sixty nine thousand seven hundred fifty two) with interest @ 10% per annum and gave other directions as pointed out earlier.

       Now the point for consideration is – whether Ld. Trial Forum was justified in passing the judgment and order in the impugned judgment dated 16-11-2016.

       Ld. Trial Forum in the impugned judgment upon consideration of the terms and conditions of the agreement dated 31-05-2013 made between the parties held that out of total consideration of Rs. 10,07,000/- (Rupees ten lakh seven thousand), a sum of Rs. 5,30,000/- (Rupees five lakh thirty thousand) was paid by the complainant at the time of booking and he subsequently paid Rs. 39,752/- (Rupees thirty nine thousand seven hundred fifty two) by three installments (Rs. 19,876/- + Rs. 9,938/- + Rs. 9.938/-) and a simple arithmetic calculation goes to show that a sum of Rs. 5,69,752/- (Rupees five lakh sixty nine thousand seven hundred fifty two) was paid by the complainant to the OP as part of the consideration for which he prayed for an order of refund. Since the OPs were reluctant in developing the plot in question particularly the plot no. 52 of the township project allotted in favour of the complainant, he rightly prayed for refund of the same. The appellants/OPs in their written version categorically admitted that they received the said amount from the complainant and Ld. Trial Forum upon consideration of the averments and evidence on affidavit adduced by the parties in support of their respect claims accepted that the said amount of Rs. 5,69,752/- (Rupees five lakh sixty nine thousand seven hundred fifty two) was to be refunded coupled with interest @ 10% per annum. Taking into consideration the facts and circumstances of the case, we find no reason to interfere with the findings of Ld. Trial Forum but we reduce the rate of interest from 10% to simple interest @ 9% per annum. We do not maintain the order with regard to payment of compensation to the tune of Rs. 8,000/- (Rupees eight thousand) and litigation cost of Rs. 5,000/- (Rupees five thousand). Hence we dispose of the appeal by modifying the directions given by Ld. Trial Forum and directed the OPs/appellants, who are jointly and severally liable to pay the amount they received from the complainant, to the tune of Rs. 5,69,752/- (Rupees five lakh sixty nine thousand seven hundred fifty two) with simple interest @ 9% per annum from the date of receipt of the same till the date of its realization. Parties do bear their respective costs of Appeal.