Date of Filing : 04/01/2021
Date of Judgement : 30/05/2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant Shri Maharshi Kumar Thakur represented by his constituted attorney namely Sri Suraj Kumar Thakur u/s 35 of the C.P. Act 2019 against the OP (referred as OP hereinafter) namely Sri Manoj Kumar alleging deficiency in service.
Case of the complainant in short is that OP is engaged in the business of developing and selling of the residential flats. So, by an agreement for sale, the complainant agreed to purchase a flat measuring about 250 sq.ft. at premises No. 115/25 Bose Pukur under P.S. Kasba at a total consideration price of Rs.4,30,000/-. Complainant has paid sum of Rs.2,80,000/- out of the said total consideration price of Rs.4,30,000/-. But neither the possession of the flat has been delivered nor the deed has been executed in favour of the complainant. In the month of September, 2019, when complainant visited the spot he found that the flat has already been sold to someone else. So, OP assured the complainant that he shall refund the earnest money of Rs.2,80,000/- and also Rs.20,000/- as interest, i.e. total sum of Rs.3,00,000/-. Thus OP issued two cheques amounting to Rs.1,40,000/- and Rs.1.60,000/-. But on presentation of those cheques by the complainant, they were dishonoured by the Bank. So, the present complaint has been filed, praying for directing the OP to execute and register the deed of conveyance or in-alternatively to refund the sum of Rs.2,80,000/- along with interest @12% per annum, to pay an amount of Rs,70,000/- as compensation for harassment and mental agony, to pay Rs.50,000/- towards the unfair trade practice, to pay Rs.,50,000/- for deficiency in service and Rs.20,000/- as litigation cost.
On perusal of the record, it appears that on service of the notice, as OP did not turn up, the case has been heard exparte.
So the only point requires determination is, whether the complainant is entitled to the relief as prayed for.
Decision with reason
In support of his case, complainant has filed the power of attorney which has been executed by the complainant appointing Suraj Kumar Thakur as his attorney to proceed with this case. He has also filed the copy of Agreement for Sale dt. 24/2/2018 wherefrom it appears First Party, being the Developer, had agreed to sell a flat measuring 250 sq.ft. at a consideration price of Rs.4,30,000/-. Complainant has also filed the statement of Bank Account showing the payment on different dates to the OP towards consideration price. Complainant has claimed that he has paid Rs.2,80,000/- to the OP. According to him, since the possession was not delivered to him neither the deed has been executed in his favour, towards refund of the earnest money paid by him of Rs.2,80,000/-, two cheques were issued by the OP and in support of his said claim, complainant has filed the copy of the said two cheques which are for Rs..1,60,000/- and Rs.1,40,000/- dt. 9/12/2019 and 14/11/2019 respectively issued by the OP in the name of one Ram Bahadur Thakur. It is the case of the complainant that the said Ram Bahadur Thakur is his father and towards the refund of the sum, the cheques were issued to his father as he resided outside. Since, before this commission, there is absolutely no contrary material to counter and rebut the claim of the complainant, the case of the complainant that those two cheques were issued towards the refund of the earnest money paid by him cannot be discarded. The Return Memo Report of the Bank is also filed, wherefrom it appears those cheques issued by the OP were dishonoured on the ground of “payment stopped by the drawer” and “kindly contact the drawer” respectively. So, in such a situation , as neither the possession has been delivered nor the money paid by the complainant has been refunded, complainant is entitled to the refund of the sum of Rs.2,80,000/- as prayed by him along with interest on the said sum @ 9% per annum in the form of compensation.
Hence
ORDERED
CC/1/2021 is allowed exparte. OP is directed to pay Rs.2,80,000/- to the complainant along with interest on the said sum @ 9% per annum from the date of the agreement i.e. 24/2/2018 to till this date, within two months from the date of communication of this order. OP is further directed to pay litigation cost of Rs.10,000/- within the aforesaid period of two months.