JUDGMENT DELIVERED BY HON’BLE PRESIDENT, Smt.C.H.Samiunnisa Abrar,
The complainant had filed this Complaint against the Opposite Party (herein after referred in short as OP) u/s 12 of Consumer Protection Act, 1986 claiming for Rs.2,82,181/- with 18%.p.a. along with Rs;50,000/- towards compensations and other reliefs and cost of the proceedings and to grant such other reliefs.
2. The brief fact of the case is that the complainant entered into an agreement with Ops company in the year 2009 for purchase of plots for the construction of house by looking the advertisement , published in daily News Paper on 29/9/2009, complainant paid an amount of Rs.27,250/- through cheque . Op assured that after purchase of the plot OP will arrange the loan on the said plot. And for that complainant submits that as per the agreement Op had agreed to construct the house in the site measuring 30X50 for Rs.9,80,000/- the agreement was executed on 18/7/2010. Hence the complainant paid Rs.2,06,250/- through cheque.
3. Further the complainant submits that as per the instruction of the Op, vide letter dtd.24/11/2010 he furnished all the documents pertaining to the site. But on 21/4/2010 complainant wrote a letter to the OP stating that the measurement of the site has been changed that for some inconvenience and said due to this complainant has to pay 35% of the installment and installment will be increased 15 % on 16/10/2011 and again on 25/10/2011 he wrote another letter stating that if the 35% amount of 1st installment will be forfeited. Hence complainant paid Rs.12,968/- on 6/1/2012 through cheque R E A S O N S
12. POINT NO.1 and 2: On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that the complainant and respondent have entered into agreement of sale and purchase of plot to be developed by the respondent and in turn the respondent has received the part payment.
13. Now the question to be determined is, whether the respondent has committed deficiency in service, if so, for what relief the complainant is entitled.
14. Since the facts have been revealed in detail which requires no repetition.
15. As discussed supra there is no dispute with regard to the sale and purchase agreement entered between the parties. Further also there is no dispute with regard to the fact that the prayer agreement has been canceled. Both in the pleadings and evidence the respondent had agreed to refund the amount but the contention of the respondent is that since the respondent has not committed any deficiency in service or unfair trade practice he is not liable to pay penal interest and entire amount received by him contending that he had invested the amount and developed the plot by laying CC Bed and as he processed the developmental works complainant is not entitled for and registration fee which are not refundable. Further it is also the case of the respondent is that since the complainant failed to pay 35%of the construction cost. By the pleadings of the respondent coupled with evidence and agreement terms and conditions an amount of Rs.3,000/- is not refundable as it was incurred towards processing charges.
16. It is the case of the complainant that the complainant has paid the amount as agreed, even then as the respondent has not undertaken the development works the complainant had not paid the balance amount as agreed and it was not possible to him to do payment of remaining installment as the respondent did not arranged to avail loan facilities to the complainant as agreed by him. So, at the instance of respondent only the agreement has been canceled. Hence complainant is entitled for entire amount along with compensation and cost of the proceedings.
17. By scanning the documents on record marked as Ex.C5 to C7, Ex.C-9 to C-14 there is continuous correspondence between complainant and respondent, but there are no records to show that the respondent had refunded the amount. Under this circumstances cause of action accrued hence entire amount should be refunded to the complainant, complainant is entitled for refund of the amount paid as per Ex.C-1, to Ex.C-4 with interest subject to deduction of Rs.3,000/- spent towards processing charges. Accordingly complainant is entitled for the reliefs. Since refund is ordered with interest not entitled for compensation except cost.
18. In view of the above discussions we have arrived and proceed to held Point No.1 in affirmative and Point No. 2 in partly affirmatively .
19. Point.3: In view of the finding on points 1 and 2 we proceeded to pass the following
O R D E R
Complaint is partly allowed. The respondent is directed to refund Rs.2,79,181/-( Rupees two lakh seventy nine thousand one hundred eighty one only) with interest @9% P.A. from the respective date of receipt of the amount under Ex.C1 to C4 along with Rs.1,000/- (Rupees one thousand only) towards cost of the proceedings within 60 days from the date of receipt of copy of this order. Failing which Op is directed to pay an interest @ 12% p.a. from the date of order till realization.
