Sri Shyamal Gupta, Member
This Appeal is directed against the Order dated 25-03-2013 passed by the Ld. District Forum, South 24 Parganas in C.C. No. 282/2009 whereby the complaint has been dismissed. Being aggrieved by and dissatisfied with the same, Complainant thereof has preferred this Appeal.
Case of the Complainant, in short, is that he entered into an agreement with the OP to facilitate purchase of the schedule property at a consideration of Rs. 3,50,000/- and made full payment thereof. However, even after 8 years, the OP did not handover the schedule flat to him. Hence, the complaint case.
Case of the OP, on the other hand, is that in terms of the Agreement for Sale he was eager to handover possession of the schedule flat to the Complainant. However, as shop-owners of the concerned land moved T.S. No. 149/2004 before the Ld. 7th Civil Judge (Sr. Division), Alipore against the landlord, the project work came to a standstill. In the year 2007, he again started the said project. However, due to massive price escalation, he could not complete the said project. It is further stated that although the OP approached the Complainant to settle the revised price consideration, the Complainant did not agree to it.
Point for determination is whether the impugned order suffers from any anomaly or not.
Decision with reasons
It appears, the instant complaint was dismissed on the ground that the Appellant booked two flats in his name. Terming such booking as commercial one, the Ld. District Forum dismissed the complaint.
In this regard, it is clarified by the Appellant that although he booked two flats, out of the said two flats one was meant for his son of marriageable age. It is further contended by the Appellant that being the Karta of a Hindu undivided family, such booking cannot be construed as commercial purpose.
We do find merit into such contention of the Appellant. In our considered opinion, while considering admissibility of a case, ideally we should avoid adopting strait-jacket formula, lest it cause injury to the bona fide interest of a party to the case. In our considered opinion, by dismissing the complaint in a mechanical manner in utter disregard to the ground reality, the Ld. District Forum grossly erred in law.
Now, coming to the issue of non-delivery of flat, without any iota of doubt, by reneging on his commitment, the Respondent No. 1 committed gross deficiency in service. Having said that, we also notice that a Title Suit was filed by the shop owners of the concerned land before the Ld. 7th Civil Judge (Sr. Division), Alipore in the year 2004 and said proceedings put a stumbling block in the way of completing the project work. Thus, it can reasonably be held that non-delivery of the flat in question was wholly not intentional; circumstances beyond the control of the Respondent No. 1 did crippled his hands to a great extent.
It further appears from the record that the Respondent No. 1 against intended to proceed with the project in the year 2007. However, since by this time, price of raw materials increased leaps and bounds, he urged the Appellant to negotiate the price of the flat to which the Appellant put his foot down. Respondent No. 1 also asserted that in view of his distress condition, he was not in a position to handover possession of the schedule flat to the Appellant at the price fixed in the year 2001.
Significantly, the Appellant has not disputed above contentions of the Respondent No. 1.
Therefore, taking an empirical view of the facts and circumstances of the case, we hold that the Respondent No. 1 shall refund Rs. 3,50,000/- to the Appellant along with interest @ 9% p.a. w.e.f. 25-08-2001 (date of payment of consideration money by the Appellant to the Respondent No. 1) till full and final payment is made.
Accordingly, the Appeal stands allowed in part.
Hence,
O R D E R E D
That FA/461/2013 be and the same is allowed in part against the Respondent No. 1 and dismissed against other Respondents. Respondent No. 1 is directed to refund Rs. 3,50,000/- along with simple interest @ 9% p.a. w.e.f. 25-08-2001 till full and final payment is made. The Respondent No. 1 shall pay the decretal amount within 45 days hence.
