Order No.  3  dt.  16/01/2020

            The case is taken up for hearing.

            The complainants filed this case against the o.ps inter alia that for purchasing a flat the complainants entered into an agreement with o.ps and the consideration price of the said flat was fixed at Rs.13,10,000/-. The complainants paid a sum of Rs.7,25,000/- and the said agreement was entered into between the parties on 30/03/2014. Even after payment of the said amount o.ps failed to provide the flat and subsequently the complainants asked the o.ps to provide the flat and in default,  to refund the money. The complainants in order to redress their grievance filed this case since the flat was not provided and by filing the CC Case No.217/2019, the complainants stated that o.ps should not transferred the same flat in question in favour of any third party and since the complainants have suffered, for such o.ps claimed the amount as agreed by o.ps to the tune of Rs.3,00,000/- as well as prayed for compensation and litigation cost.

            The o.ps by filing the MA Case has agitated that before filing of this case the complainants had already been paid an amount of Rs.8,80,000/- and thereby the complainants are not the consumer as per the C.P. Act and the case is not maintainable. On the basis of the said fact the o.ps filed this case praying for dismissal of the case.

            Considering the submission of the respective parties, it is an undisputed fact that the complainants entered into an agreement for purchasing a flat and the complainants as per the said agreement paid the price of the flat phase by phase. Subsequently with the enhancement of the price of the flat the complainants agreed to pay the extra amount, thereby the value of the flat enhanced to Rs.13,10,000/-. Since the o.ps / developers failed to handover the possession of the flat within the stipulated period, a mutual agreement was entered into between the parties on 14/08/2018 whereby it was categorically stated that o.ps will pay the extra amount of Rs.3,75,000/- to the complainants towards the rent paid by the complainants for not providing the flat within the stipulated period. It appears from the record that o.ps in compliance of the said agreement dated 04/08/2018 issued a cheque being no. 741948 dated 03/04/2019 drawn on Canara Bank, Dum Dum Branch, Kolkata amounting to Rs.3,00,000/-. The complainants for realization of the said amount deposited in the account but the cheque was dishonoured with the observation by the concerned bank that ‘funds insufficient’. In view of the said fact the complainants had to start a case against the o.ps U/S 138 of N.I. Act and the said case is pending. The o.ps appeared in the said case and obtained bail. In such background of the case o.ps failed to honour the agreement subsequently entered into and by non-fulfilling the said agreement the complainants filed this case praying for refund of the amount since the flat in question could not be handed over by o.ps. The o.ps stated that this is a case simpliciter for recovery of money, but since the said claim made by o.ps arose out of an agreement entered into between the parties for purchasing a flat and o.ps failed to honour the stipulation as mentioned in the agreement for sale, thereby we hold that the case filed by the complainants is quite maintainable and the plea taken by o.ps for dismissal of the case has got no merit.

             Hence, Ordered,

            That the  MA Case No. 90/2019 is dismissed on contest without cost.