PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Parties to assail the final order/judgment being order No. 20 dated 19.04.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit- I (in short, Ld. District Forum) in Consumer Complaint no. 293/2014. By the impugned order, the Ld. District Forum allowed the complaint ex parte with the following directions:
“The OPs are jointly and/or severally directed to refund a sum of Rs. 4,00,000/- (Rupees Four Lakhs) only to the complaint along with compensation of Rs. 50,000/- (Rupees Fifty Thousand) only for harassment and mental agony and litigation cost of Rs. 15,000/- (Rupees Fifteen Thousand) only within 30 days from the date of communication of the order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realisation.”
The respondent herein being complainant lodged the complaint under Section 12 of the Act before the Ld. District Forum stating that on 26.06.2008 she entered into an agreement with the OPs to purchase of a plot of land measuring an area of 1440 sq. ft. more or less in the project of the OPs named ‘SONARTORI’ in Dag No. 591, Khatian No. 326 within Mouza Natagachi, P.S.- Sonarpur, Dist- South 24 Parganas at a total consideration of Rs. 1,20,000/-. The complainant has stated that she has paid Rs. 24,000/- as part consideration amount at the time of entering into an agreement and the rests of the consideration money of Rs. 96,000/- was paid by him by 36 equal instalments amounting to Rs. 2,667/- only as EMI. The complainant has stated that despite payment of entire consideration amount of Rs. 1,20,012/- the OPs have not yet started the development work in the project. On 29.03.2011 the complainant wrote a letter to the Managing Director of OP No. 1company asking for refund of the amount and the said letter was duly received by the OPs on 01.04.2011 but even after expiry of long period, the OPs neither refunded the consideration money nor give the interest @ 12% p.a. as promised. Hence, the respondent approached the Ld. District Forum with prayer for following reliefs, viz.- (a) a direction upon the OPs to refund Rs. 4,00,000/- with immediate effect; (b) to direct the OPs particularly the OP No. 1 though the OP No. 2 to pay Rs. 1,00,000/- as compensation of Rs. 25,000/- as litigation costs; (c) to direct the OPs to pay an interest @ 12% p.a. from the date of payment till its realisation etc.
The OPs/appellants initially appeared before the Ld. District Forum and were contesting the case but subsequently, they abstained from participating in the proceeding and as such the complaint was heard ex parte.
After assessing the materials on record, the Ld. District Forum by impugned order allowed the complaint with certain directions upon the Opposite Parties, as indicated above. Challenging the final order/judgment the OPs have come up in this commission with the present appeal.
Ld. Advocate for the appellant has submitted that the Ld. District Forum in violation of principles of natural justice directed the appellant to refund the sum of Rs. 4,00,000/- to the complainant along with compensation of Rs. 50,000/- and litigation costs of Rs. 15,000/- although the complainant has paid only a meagre amount of Rs. 1,20,012/-. Therefore, the impugned order being not in conformity with the averment and prayer, it is liable to be set aside.
On the other hand, the Ld. Advocate for the respondent has admitted that the respondent/complainant has paid a sum of Rs. 1,20,012/- to the appellants/developer and as such the respondent is entitled to refund a sum of Rs. 1,20,012/- along with interest thereon @ 12% p.a. as per prayer in the prayer clause of petition of complaint.
Having heard the Ld. Advocate for the respective parties and on going through the materials on record, we find substance behind the contention of Ld. Advocate for the appellants. In a reply to the questionnaire set forth by OPs/appellants, the respondent admitted that the total consideration for the plot was Rs. 1,20,000/- in total and after payment of part consideration money of Rs. 24,000/-, he got an application for plot No. 221 from the OPs and signed the agreement with the OPs on 26.06.2018. It has been stated by the complainant that the rests of the consideration amount (Rs. 1,20,000-Rs. 24,000/-) = Rs. 96,000/- was paid by her by way of 36 numbers of equal monthly instalments of Rs, 2,667/- only.
Therefore, relying upon the statements of respondent/complainant herself it would reveal that the respondent/complainant has paid only Rs. 1,20,012/- to the appellant company and as such she is not entitled to refund of the amount more than that. However, the Ld. District Forum has directed for refund of Rs. 4,00,000/- to the complainant which is totally beyond the pleading and the evidence led by the respondent/complainant herself.
In view of the above, the impugned order is modified only to the extent that the appellants/OPs shall refund Rs. 1,20,012/- along with compensation in the form of simple interest @ 10% p.a. over the amount from the date each payment till its realisation. Since the appellants/OPs have already refunded Rs. 1,20,012/- by a bank draft bearing No. 002902 drawn on IDBI bank dated 28.11.2019, the appellants/OPs are liable to pay interest @ 10% p.a. over the amount of Rs. 1,20,000/- from the date of each payment till 28.11.2019 and litigation costs of Rs. 15,000/- imposed by the Ld. District Forum. The appellants/OPs are directed to make payment of the accrued interests and litigation costs within 30 days from the date of order in default the respondent/complainant may put the order in execution before the Ld. District Forum.
With the above observations and direction, the instant appeal stands disposed of.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.
