HON’BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT
This appeal has been directed against the judgment and order dated 18-10-2016 passed by Ld. DCDRF, Kolkata, Unit-III (South) in CC/92/2016 where Ld. Forum concerned while disposing of the complaint case allowed the same in part on contest and directed the OP to refund a sum of Rs. 2,42,500/- (Rupees two lakh forty two thousand five hundred) to the complainant within two months from the date of the order with default clause.
Being aggrieved by and dissatisfied with the said judgment and order dated 18-10-2016, the present appeal has been preferred by the complainant/appellant (hereinafter referred to as the complainant).
Briefly stated, the case of the complainant was that being attracted by the lucrative offer from the respondents/OPs (hereinafter referred to as the OPs) deposited a sum of Rs. 1,43,004/- (Rupees one lakh forty three thousand four) by installments for booking a plot at Middle Town, marked at Plot-B 145, but she failed to get any response from the OPs for several years inspite of repeated reminders. Some time in the year 2012, the OPs certainly wrote a letter to the complainant offering a flat measuring 650 sq. ft. and the complainant accordingly visited the OP on 27-03-2012, recorded her consent as per their terms of conversion (i.e. on the basis of Rs. 325/- sq. ft. per cottah conversion formula). Thereafter the OPs remained silent for more than a year and a half and on 01-08-2013 they wrote another letter to the complainant intimating that the OPs were going to enter into a Development Agreement with a well known developer (Heritage Group) on a joint venture basis and for materializing the same 5-6 months would be required. But inspite of two and half years waiting, no further communications has been received from the OPs. The complainant during the period of two and half years visited the office of the OPs several times, having telephonic conversion to remind them the commitment for providing the aforesaid flat, instead of booked plot bearing no. B-145 at “Middle Town” remaining unfulfilled. The complainant alleged that she was not only being denied the committed flat instead of the plot rather she was further deprived of getting possession of a shop measuring 500 sq. ft. on the ground floor of Sun City though the OP received a sum of Rs. 2,42,500/- (Rupees two lakh forty two thousand five hundred), paid by the complainant by installments. The complainant made several representations before the OP demanding immediate redress of her grievances with regard to refund of the Application Money, installment money and registration fees etc. amounting Rs. 1,43,004/- (Rupees one lakh forty three thousand four) along with interest @ 15% per annum or 650 sq. ft. flat in the Middle Town, to refund the booking money of Rs. 2,42,000/- (Rupees two lakh forty two thousand) in respect of the shop measuring 500 sq. ft. in the ground floor of Sun City, Pailan. Since no fruitful result yielded towards representation, the complainant was compelled to take recourse of the DCDRF concerned claiming the reliefs for refund of application money to the tune of Rs. 3,85,004/- (Rupees three lakh eighty five thousand four) (Rs. 1,43,004/- + Rs. 2,42,000/-) along with interest @ 15% per annum, compensation to the tune of Rs. 8,00,000/- (Rupees eight lakh) for financial loss and other reliefs including litigation cost etc.
The written version was filed by the OP to contest the complaint case and it was contended that the complaint case was not maintainable in law. Denying the cause of action averred in the body of the petition of complaint the OPs admitted that they received a sum of Rs. 2,42,500/- (Rupees two lakh forty two thousand five hundred) from the complainant for selling a shop measuring 800 sq. ft. area on the ground floor at the premises of Sun City Project for a consideration of Rs. 7,00,000/- (Rupees seven lakh) and balance Rs. 4,75,500/- (Rupees four lakh seventy five thousand five hundred) have been due to the complainant who never showed any good gesture/effort endeavour in the matter of discharging of her obligation duties and liabilities in terms of the said agreement. Denying the allegation of harassment, mental agony etc. the OPs in their written version averred that non-payment of balance consideration by the complainant for purchasing the shop room as per agreement stood in the way of giving relief to her and ultimately an order of dismissal was prayed for.
Ld. Trial Forum in the impugned judgment held that as the OPs admitted that they received of a sum of Rs. 2,42,500/- (Rupees two lakh forty two thousand five hundred) and they were duty bound to refund the same due to the fact that inaction on the part of the complainant prompted them to rescind the contract by their conduct.
Now the point for consideration is – whether Ld. Trial Forum was justified in directing the OPs to pay a sum of Rs. 2,42,500/- (Rupees two lakh forty two thousand five hundred), as per the admission of the OPs.
It is pertinent to mention here that the OPs did not show any interest to contest the appeal and left the matter to be heard exparte. In course of hearing Ld. Counsel for the appellant drew our attention to the terms of agreement (which is at page 85 of the file) and pointed that as per item no. 1 the complainant was agreed to purchase a shop measuring 800 sq. ft. area at the ground floor of the Sun City for a consideration of Rs. 7,00,000/- (Rupees seven lakh). The item no. 2 of the said agreement clearly established that a sum of Rs. 2,42,500/- (Rupees two lakh forty two thousand five hundred) was paid by the 1st party on account of shop and the balance amount of Rs. 4,57,500/- (Rupees four lakh fifty seven thousand five hundred) was likely to be paid by installments amounting to Rs. 15,250/- (Rupees fifteen thousand two hundred fifty) per installment till the entire amount was liquidated. Frankly speaking the OPs never admitted payment of a sum of Rs. 1,30,000/- (Rupees one lakh thirty thousand) and Rs. 2,42,500/- (Rupees two lakh forty two thousand five hundred) in written version or in the agreement but the reply to question no. 5 given by the OPs (which is at page 92 of the file) clearly revealed that the complainant paid a sum of Rs. 1,30,000/- (Rupees one lakh thirty thousand) which amount was to be refunded in addition to Rs. 2,42,500/- (Rupees two lakh forty two thousand five hundred) with interest since the complainant filed the complaint case for refund of money as a principal relief, we should not stand in the way for realisaton of the same. However, we calculate the sum of Rs. 1,30,000/- (Rupees one lakh thirty thousand) with the amount of Rs. 2,42,500/- (Rupees two lakh forty two thousand five hundred) which the OPs admitted in their evidence on affidavit. Accordingly we allow the appeal in part and direct the OPs to refund a sum of Rs. 3,85,004/- (Rupees three lakh eighty five thousand four) (Rs. 1,43,004/- + Rs. 2,42,000/- ) as admitted by the OPs during trial. Since the complainant was reluctant in paying the balance consideration, as the document filed on behalf of the complainant suggests, refund of part of the consideration would be sufficient to meet the ends of justice particularly when there are averments that the complainant booked a plot of land to purchase it from the OPs. Accordingly we, instead of reversing the judgment and order of the Ld. Trial Forum, we simply modify a part of it by directing the OPs to refund the entire amount i.e. Rs. 3,85,004/- (Rupees three lakh eighty five thousand four) to the complainant within 60 days from the date of the order coupled with simple interest @ 9% per annum from the date of receipt of the same till the date of its realization. With the above modification, the appeal stands disposed of exparte. We do not pass any order as to costs.
