Date of filing : 11.7.2018

Judgment : Dt.26.8.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Debashis Biswas alleging deficiency in service on the part of the opposite party (referred as OP hereinafter) namely M/s Chakraborty Enterprise represented by Mrs. Jaya Chakraborty.

            Case of the Complainant, in short, is that by agreement dt.28.11.2013, OP agreed to sell a flat to the Complainant being flat No.G-1, measuring about 510 sq.ft super built up area more or less in the ground floor at Premises No.686, Baishnabghata, Patuli, at a consideration price of Rs.10,00,000/-. As per the terms and conditions of the agreement, possession was to be delivered within 18 months from the date of execution of the agreement. Complainant has paid the entire amount of consideration. But the OP has neither delivered the possession of the flat nor has executed the deed in his favour. The Complainant sent demand notice through his Ld. Advocate dt.31.5.2018 and 20.6.2018, but all in vain. So, the present complaint has been filed praying to direct the OP to pay Rs.10,00,000/- with interest @ 15%  and to pay compensation of Rs.2,00,000/- for mental agony and harassment.

            With the petition of complaint, Complainant has annexed copy of agreement for sale dt.28.11.2013, copy of the money receipts issued by the OP being represented by Jaya Chakraborty, copy of the notice dt.12.4.2018, copy of reply by the OP dt.3.5.2018, copy notice dt.31.5.2018 sent by the Complainant and also dt.20.6.2018 and reply thereto dt.5.7.2018 by the OP.

            OP has contested the case by filing the written version denying and disputing the allegations made in the complaint, contending inter alia that the Complainant cancelled the said agreement and consequent of which OP has also refunded an amount of Rs.2,25,000/- only to the Complainant in his Bank Account. Complainant paid only Rs.8,25,000/- out of which Rs.2,25,000/- has already been paid and rest of Rs.6,00,000/- will be paid by the OP in installments. So, the OP has prayed for dismissal of the case.

            During the course of evidence, Complainant adduced his evidence, but no questionnaire was filed by the OP. However, evidence has been filed by the OP followed by filing of questionnaire by the Complainant and filing of the reply by the OP.

            So, the only point require determination is whether the Complainant is entitled to the relief as prayed for.

            Decision with reasons

            It is apparent from the written version filed by the OP that execution of the agreement dt.28.11.2013 between the Complainant and the OP to sell a flat measuring 510 sq.ft. super built up area, has not been disputed and denied. The only contention which has been raised by the OP is that an amount of Rs.8,25,000/- only was paid by the Complainant and out of which OP has refunded Rs.2,25,000/- and rest of the amount shall be paid by him. It is also claimed by the OP that the agreement was cancelled by the Complainant himself. But, before this Forum, there is absolutely no document filed in order to substantiate the claim of the OP that the Complainant cancelled the agreement for sale. On the contrary, a copy of the document dt.18.1.2018 has been filed which appears to have been written by Jaya Chakraborty and her husband Supriya Chakraborty stating that the flat in question has already been sold to a third party at an amount of Rs.13,25,000/-. But it is no where mentioned in the said document that the said sale was done to a third party as agreement with the Complainant was cancelled by him. So far as claim of the OP that the consideration amount of Rs.8,25,000/- was only paid by the Complainant, it appears from the reply sent by the OP dt.16.7.2018 in response to the notice of the Complainant, it is categorically stated that Rs.2,25,000/- has been refunded and only balance consideration of Rs.7,75,000./- has to be paid by the OP. If that be so, then OP has admitted that consideration amount of Rs.10,00,000/- was paid by the Complainant. Apart from this, in the agreement also it is categorically stated in clause 3 of the agreement  that Complainant had made the payment of some amount . The receipt also filed by the Complainant establishes payment of further amount of Rs.8,25,000/-. So, if the reply dt.16.7.2018 by the OP coupled with the recital in the a greement in question and money receipts are taken into consideration, then there remains no doubt that the Complainant has paid an amount of Rs.10,00,000/-.

            With regard to refund of Rs.2,25,000/- by the OP, a copy of another agreement has been filed dt.11.3.2013 which reveals that the Complainant has financed in the project of OP by paying a sum of Rs.2,00,000/-. It was agreed that the OP would return back the said amount along with interest. So, the claim of the OP that he refunded Rs.2,25,000/- towards consideration in this case, cannot be accepted. Admittedly neither possession of the flat has been handed over to the Complainant nor the money has been refunded. So, the Complainant is entitled to the refund of the said amount of Rs.10,00,000/- paid by him from the OP. He is entitled to the compensation towards harassment and mental agony. We have already highlighted above that the said flat has already been sold to some third party. In such a situation, any direction to handover the possession of the said flat, will be ineffective.

            Hence

                                      ordered

            CC/418/2018 is allowed on contest. OP is directed to refund Rs.10,00,000/- to the Complainant along with compensation of Rs.70,000/-, within two months from the date of passing of this order, in default the entire sum shall carry interest @ 10% p.a. till realization. OP is further directed to pay litigation cost of Rs. 12,000/- within the aforesaid period of two months.