Date of Hearing 29^th Day of September, 2015

Date of Judgment Friday, the 9^th Day of October, 2015

JUDGMENT

        The instant appeal u/s. 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the instance of the Complainant to impeach the Judgment/Final Order dated the 25^th Day of April, 2014 passed by the Ld. District Consumer Disputes Redressal Commission, South 24 Parganas at Alipore (In short, Ld. DCDRF) in Consumer Complaint No.451 of 2013.

        The Appellant herein being Complainant initiated the Consumer Complaint with an allegation that in the year 2009 he has paid a sum of Rs.1,50,000/- by cheque to Opposite Party No.1/Developer for purchase of a flat at premises No.37, Banerjee Para Road, P.S. Parnashree, Kolkata-700060 at a total consideration of Rs.15,00,000/-.  In the year 2012 the construction of the building being completed the Complainant approached the Opposite Party No.1 for registration of the Deed but Opposite Party No.1 agreed to sell out the same at higher consideration amount.  Hence, the case for deficiency of service

        The Opposite Party No.1&2 by filing separate Written Versions disputed the claim.

        Relying upon the materials on record including the evidence adduced by the parties the petition of complaint was allowed with a direction upon the Opposite Party No.1 to pay back Rs.1,50,000/-, compensation of Rs.5,00,000/- and litigation cost of Rs.5,000/-.  However, being aggrieved and dissatisfied with the said order the instant appeal has been preferred.

        The point arises for consideration in this appeal as to whether or not Ld. DCDRF was justified in passing the order.

        On a close scrutiny of the materials on record and having heard the Ld. Advocates appearing for the respective parties it emerges that the Complainant has been working for gain in the office of a Corporate Bank at Kolkata and the Opposite Party No.1 is a Developer and Promoter and has been carrying its business as developer.  Opposite Party No.2 is the owner of premises No.37, Banerjee Para Road, P.S. Parnashree, Kolkata-700060 where Opposite Party No.1 being promoter started construction or development.  The Complainant has paid Rs.1,50,000/- to the Opposite Party No.1 by a cheque in the year 2009.

        Now, the Complainant has alleged that the said payment was made for purchase of a flat measuring about 840 sq. ft. being flat No.C at the 3^rd Floor of the said premises.  However, there was no document to show that the amount of Rs.1,50,000/- was paid by the Complainant as an earnest money out of consideration amount of Rs.15,00,000/-.  On the contrary, it has been alleged by the Opposite Party No.1 that the amount was paid to him as loan.  In absence of any document with regard to such payment of Rs.1,50,000/- it is quite difficult to understand the intention of the parties.  The intention of the parties can only be gathered from the document itself and in absence of such document it is quite difficult to decide whether the amount of Rs.1,50,000/- paid by the Complainant in favour of Opposite Party No.1 was essentially an earnest money/part consideration amount or loan in substance.  Ld. Advocate for the Appellant has submitted that Ld. DCDRF should have passed an order directing the Opposite Party No.1 to sell out the flat at Rs.15,00,000/-.  Such a submission could not inspire us in absence of any agreement between the parties to that effect.

        In that perspective, we do not find any merit in the appeal.  As a result, the appeal is liable to be dismissed.  However, we do not like to impose any costs in this appeal.

        For the reasons aforesaid, the appeal is dismissed on contest but without any order as to costs.

        The Judgment/Final Order dated 25.04.2014 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore in Consumer Complaint being No.451 of 2013 is hereby affirmed.