Judgment : 28.7.2017

            This is a complaint made by one (1) Sri Bandhan Kumar Datta, son of Late late Satish Chandra Datta and (2) Smt. Ratna Datta, wife of Sri Bandhan Kumar Datta, both residing at Vill- Lalpur (Purbayan), P.O.-Chakdaha, P.S.-Chakdaha, Dist.- Nadia against M/s Somadhan Realtor Pvt. Ltd. represented by Sri Debashis Sarkar, having its registered office at 58F, Hindusthan Park, P.S.-Gariahat, Kolkata-700 029, praying for direction upon the OP to refund   Rs.7,96,600/- with interest @ 18% and compensation of Rs.5,00,000/- and litigation cost of Rs.50,000/-.

            Facts in brief are that Complainant in order to accommo9date himself and his family members including one sister came into touch with the OP and knew about the project. Complainants book a flat in the  first floor of Block-A, South-West facing, measuring 1161 sq.ft. After execution of an agreement for sale on 13.11.2013 between Sri Gouri Sankar Roy and four others as venders of the first part OP as developer and Complainant as purchaser. Total consideration was fixed at a price of Rs.19,99,500/-. Complainant paid Rs.1,00,000/- to the OP by cash and on the date of execution for agreement for sale paid Rs.4,64,400/-. Further, Complainant paid Rs.2,32,200/-. Accordingly, Complainant paid Rs.7,96,600/- Complainant No.1’s sister used to live with the Complainants, who fell seriously ill and cancer was detected in her uterus. Complainants had to bear major cost of expensive treatment as per advice of the attending doctor. The sister of the Complainant No.1 was operated in the month of February, 2015. There took place chemo therapy also after the operation. So, Complainant was unable to pay the installments and asked the OP to refund the money. But, since OP did not return, Complainants were compelled to file this case.

            OP filed written version and denied the allegations of the complaint. Further, OP has state that Complainant is not a consumer. OP has also stated that the breach of agreement was done by the Complainant. OP, has further stated that he did not issue the three cheques as alleged by the Complainant. So, OP prayed for dismissal of this complaint.

            Decision with reasons

            Complainant filed affidavit-in-chief to which OP filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OP filed evidence to which Complainant has not filed questionnaire.

            Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            On perusal of the prayer portion of the complaint petition, it appears that Complainant has prayed for refund of Rs.7,96,600/-. Documents submitted by the OP, make it clear that Complainants paid the alleged money i.e. Rs.7,96,600/- to the OP. Further, it appears that due to treatment of cancer of the sister of the Complainants, Complainants became unable to pay other installments and they requested the OP for cancellation of the booking.

            On perusal of the document, it appears that OP issued three cheques for refunding of the money which they received from the Complainants. But, those cheques were not encashed and returned with the endorsement – ‘payment is stopped by the drawer and fund is insufficient’. This clearly suggests that OP has agreed to pay the money to the Complainants which he had received and denial made by OP in the written version and affidavit-in-chief are nothing but an attempt to camouflage the proceeding.

            So, we are of the view that Complainants proved the allegation that they had paid Rs.7,96,600/-.

            Complainant has prayed for compensation of Rs.5,00,000/-. This amount appears to be excessive. However, the sufferings of Complainants coupled with the act and conduct of the OP warrants compensation of Rs.1,00,000/- in favour of the Complainants. It is because OP made an attempt to confuse the Forum by stating that he did not issue the three cheques in favour of the Complainants on 31.7.2015 amounting to Rs.96,600/-, Rs.5,00,000/- dt.d30.9.2015 and Rs.2,00,000/- dt.29.8.2015.

            As such, we are of the view that OP intentionally made such conduct for which the mental sufferings of the Complainants aggravated. Complainants have also prayed for litigation cost of Rs.50,000/-. However, we are of view that if litigation cost of Rs.10,000/- is awarded by which justice could be served.

            Hence ordered

            CC/514/2016 and the same is allowed on contest. OP is directed to pay Rs.7,96,600/-. In addition, OP is also directed to pay Rs.1,00,000/- as compensation and Rs.10,000/- as litigation cost within two months of this order, in default the total amount shall carry interest @ 10% p.a. from the date of the order till realization.