This is a complaint made by one Jayanta Chakraborty, son of Late Murari Mohan Chakraborty, residing at 245, Bonhooghly, Paschim Para, P.O.-Bonhooghly, P.S.- Sonarpur, Kolkata-700 103 against (1) M/s Shalini Construction, a sole proprietor Firm having registered office at L-38, Kamdahari, Bose Para, P.O.-Garia, P.S.-Bansdroni, Kolkata-700 084, OP No.1 and (2) Pranab Mitra, son of late Manindra Nath Mitra, sole proprietor of M/S Shalini Construction, having residential address at L-38, Kamdahari, Bose Para, P.O.-Garia, P.S.-Bansdroni, Kolkata-700 084, praying for direction upon the OP to execute and register the deed of conveyance in respect of the scheduled flat mentioned in the agreement dt.16.11.2011 in favour of the Complainant by accepting the balance consideration amount and also deliver the peaceful and vacant possession thereof, alternatively a direction to execute a deed of conveyance in respect of a equally suitable and identical flat by accepting the balance consideration amount as mentioned in the agreement for sale dt.16.11.2011 and a compensation of Rs.50,000/- and other compensations in terms of declaration dt.19.10.2013 or to refund the entire amount of consideration with interest of 18% p.a. and compensation of Rs.1,00,000/-.
Facts in brief are that OP No.1 is a proprietorship firm having its business of construction. OP No.2 is the sole proprietorship of OP No.1. Complainant, further, stated that OPs lured him to purchase a flat which was being constructed and developed by them. As per that an agreement for sale was entered between the parties on 16.11.2011 with OP No.1 who was representative of OP No.2.
At the time of execution of the agreement for sale, Complainant paid Rs.1,00,000/- as first installment out of Rs.12,00,000/-. Complainant received the receipt of such payment. Further, Complainant has stated that in terms of the agreement, Complainant paid further amount of Rs.1,40,000/- to the OP as second installment and he received receipt of this payment also. It was agreed between the parties that within 18 months from the date of the said agreement the possession of the flat would be handed over, otherwise the Complainant would be entitled to get refund of money paid in favour of the OPs.
After expiry of few months from the date of making payment of the second instalment on enquiry it came to be learnt that OP sold the flat to another person. Complainant further states that on much persuasion of the OP No.2 issued six cheques of different denominations in favour of the Complainant. All the said cheques were dishonoured. So, Complainant was compelled to run from pillar to post for getting refund of the amount. On 19.10.2013 OP No.2 executed a declaration-cum-undertaking in presence of the two witnesses, wherein he agreed to refund of Rs.5,30,000/-. Further, Complainant has stated that he requested the OP to refund the money. But, OP did not refund it, after which Complainant wrote a letter which also did not yield any result. As such, Complainant filed this case.
OP No.1 & 2 filed written version and denied all the allegations of the complaint. Further, OP No.1 & 2 has stated that Complainant paid Rs.1,00,000/- towards booking of the flat and also Rs.1,40,000/- as second installment out of Rs.12,00,000/-. Further OP No.1 & 2 has stated that due to litigation amongst the owners and OPs in the Civil Court a substantial time was wasted and the construction work could not take place. Complainant cancelled the agreement and asked for refund of the money after calculating interest to the tune of Rs.5,30,000/-.
Further, these OPs have stated that they intended to refund the money but, Complainant delayed the matter. So, they have prayed for dismissal of this complaint.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the fact mentioned in the complaint. Against this OPs have filed questionnaire to which Complainant has filed affidavit-in-reply. OPs also filed evidence to which complainant filed questionnaire and OPs filed reply.
Main point for determination is whether Complainant is entitled to the reliefs as prayed by him in the complaint petition.
On perusal of the prayer portion, it appears that Complainant has made several prayers. As per prayer D, Complainant has prayed for refund the entire consideration money paid by him along with interest 18% p.a.
On perusal of the affidavit-in-chief, questionnaire and affidavit-in-reply of respective parties, it appears that there is latches on both the sides. It is because Complainant paid only Rs.2,40,000/- and on behalf of the OPs, there took place a dispute between the owners and developer which led to the construction remaining incomplete.
In the aforesaid facts and circumstances it appears that if OPs are directed to refund Rs.2,40,000/- to the Complainant justice would be served. Here it is noteworthy that Complainant has stated that OPs issued several cheques. Ld. Advocate for Complainant submitted at the time of argument that their client have not filed any proceeding under Section 138 N.I.Act. If that be so, Complainant is entitled for an order for refund of money which Complainant has paid.
However, we make it clear that if any proceeding under Section 138 is pending the order of this Forum would be in the background of the payment receipt in that proceeding.
Complainant has also prayed for interest @ 18%p.a.
On perusal of the affidavit-in-chief of Complainant as well as the questionnaire, it appears that Complainant is not entitled to any interest upon this amount because he was also on latches in complying the terms and conditions of the agreement for sale.
Further, Complainant has prayed for compensation of Rs.1,00,000/-. The circumstances give out of evidence of this case reveal that Complainant is not entitled to any such compensations. So, these prayers cannot be allowed.
Hence,
ordered
CC/286/2016 and the same is allowed in part on contest. OPs are directed to pay refund of Rs.2,40,000/- within six months of this order.
