Hon’ble Mr. Haradhan Mukhopadhyay, President.

The basic fact of the Complainant is that the Complainants Shyamal Chandra Roy and his wife Smt. Karuna Kirtania are Government employee. They booked one flat being No.102 at 1^st Floor measuring 125 Sq. feet against which paid booking amount of Rs.4.5 Lakhs to the OP Sri Nripen Biswas as partner of Abhishek Construction. As per agreement of sale it was clearly mentioned that the said flat will be handed over to the Complainant before 31.12.17 but till the filing of the case the said flat was not handed over to the Complainant. Subsequently, the Complainants were transferred on mutual transfer to Cooch Behar. The Complainants informed the total matter of mutual transfer to the OP who assured that the total booking amount would be refunded within short period. Despite several requests the OP did not refund the entire amount.  After long time the OP credited Rs.50,000/- to the account of the Complainant on 18.12.20. Subsequently, the Complainant sent a letter to the OP through registered post on 12.03.21 but despite receiving the same the OP did not refund the balance amount of Rs. 4 Lakhs to the Complainant. Subsequently, the Complainant sent a legal notice on 10.06.21 by registered post to the OP which the latter received but the OP did not refund the balance amount. The aforesaid activities of the OP caused deficiency in service. The cause of action arose on 05.09.16 and subsequent dates. Hence the present case the Complainant prayed for an award for Rs.4 Lakhs towards actual advance money, Rs.2 Lakhs towards mental pain and agony and Rs.20,000/- towards litigation cost.

The OP contested the case by filing written version wherein he denied each and every allegation of the Complainant. The positive defence case of the OP in short is that the present case is filed for illegal gain which is hopelessly barred by limitation and bad for defect of parties. The flat in question was to be handed over before 31.12.17 but the present complaint is filed on 02.07.21 after lapse of 4 ½ year. So, the complaint is barred under section 69 of Consumer Protection Act. The agreement dated 05.09.16 was entered amongst Dipali Das, Partha Das and Tirtha Das as owner cum vendor on the 1^st part, Abhishek Construction represented by partner Nripen Biswas as developer on the 2^nd part and the Complainants as purchaser being 3^rd part. So the owner cum vendor are necessary parties and without impleading them case cannot proceed. The OP stated that the Complainant entered into an agreement for purchasing the flat in dispute for Rs.28,75,000/- against which the Complainant paid Rs.4.5 Lakhs in advance. In the said agreement it was clearly mentioned that the 1^st and 2^nd party shall execute and register the deed of sale on or before 31.12.17. In case the purchaser fails to pay the consideration money within the stipulated period then the 1^st party shall have liberty to cancel the agreement by giving one month notice to the purchaser after deducting 25% of the amount already paid and the 1^st and 2^nd party shall have also liberty to sale out the said flat to anybody at their sweet will. During August, 2017 the Complainant purchased the OP to refund the booking money due to their mutual transfer from Berhampore to Cooch Behar. The OP somehow refunded Rs.50,000/- as a  good gesture for the  need of the Complainant. The flat was ready long back. Due to their transfer in service the Complainants did not want to purchase the same anymore. There was no deficiency in service. OP therefore claimed that the case is liable to be dismissed with cost.

The question of facts is involved in this case demands for ascertainment of the following points for proper adjudication of the case.

Points for determination

1. Whether the case is barred by limitation and bad for defect of parties?
2. Whether the Complainant is entitled to get the relief as prayed for?
3. To what other relief if any the Complainant is entitled to get?

Decision with reasons

Point No.1.

This point relates to some legal question as to maintainability of the case. The OP raised the question that the agreement was entered into between owner cum vendor and developer being OP of this case and the Complainant. So without impleading the owner cum vendor as party to this case the present case is not maintainable.

It is found from the case record that the agreement was entered into amongst of the Complainant, the owner cum vendor and the developer being the OP of this case. After perusing the main two documents like the agreement and the money receipt it is found that the Complainant entered into the agreement with the owner cum vendor and the developer being the OP. As per the said terms of clause-13 in case of failure to pay the consideration money within stipulated period as mentioned in six schedule bellow the 1^st party shall have liberty to cancel the present agreement by giving one month notice to the purchaser after deducting 25% of the amount already paid and the 1^st and 2^nd party shall have also liberty to sale out the said flat to anybody.

Thus although the 1^st party has been entangled in the said agreement but the principal role played in the entire event appears to be by only the OP who received the advance money of Rs.4.5 Lakhs from the Complainant. Money receipt dated 02.01.17 clearly discloses that the owner cum vendor did not sign the money receipt. The said Annexure-B also discloses that cash of Rs.4.5 Lakhs was received by the OP Nripen Biswas on 02.01.17 from the Complainant.

Assuming but not admitting that the 1^st party is an important party in the matter yet they did not issue any notice to the Complainant about the cancellation of the said agreement and deduction of 25 % of the amount already paid by the Complainant.

Accordingly, the said owner cum vendor are not necessary and proper party in this case in absence of whom the case cannot be properly adjudicated. Therefore the present case is no bad for defect of parties.

It is the further defence allegation that the case is barred by limitation. After perusing the entire case record it is evident from the documents that last transaction between the parties took place on 18.12.20  as per pleading in Para-8 of the complaint of the Complainant wherein the OP refunded Rs.50,000/- to the Complainant. Against the said averment the OP could not deny the said fact. On the contrary the OP categorically stated that he paid the said sum of Rs.50,000/- as a good gesture. Therefore the cause of action actually arose on and from 18.12.20. The present case is filed on 02.07.21. Which is well within the limitation period fixed by the statute. Accordingly, the case is not barred by limitation.

Point No.1 is accordingly answered in affirmative in favour of the Complainant.

Points No.2 & 3.

Both the points are very closely interlinked with each other and accordingly taken up together for brevity and convenience of discussion.

It is evident from the documents that the agreement dated 16.09.21 clearly stipulated about sale of a flat to the Complainants by the OP for a sum of Rs.22 Lakhs against which the Complainant advanced Rs.4.5 Lakhs to the OP. The original agreement is filed in this case. The OP has not denied about the said agreement.

It also the admitted fact that the Complainant advanced Rs.4.5 Lakhs for purchasing the said flat.

The most important clause against which both parties relied on is that on completion of the flat if the purchaser fails to pay consideration money within the stipulated period then the said agreement will be cancelled by the owner cum vendor and a sum of Rs.25,000/- is liable to be deducted after giving one month notice and the OP shall have liberty to sale out the said flat to anybody.

Therefore the said clause relates to important point whereas the right to cancel the agreement was given to the 1^st party being the owner cum vendor but the right to sale out the flat was given to the OP as 2^nd part alongwith the 1^st part.

It is important to consider that neither the 1^st party not the 2^nd party issued any such one month notice after deducting 25%  of the amount.

Therefore it is the OP who violated the terms and conditions of the said agreement.

The case record also discloses that the OP did not issue any notice to the Complainant informing that the flat is ready for delivery and the Complainant should take possession of the said flat within a stipulated date.

Ld. Defence Counsel argued that the Complainant did not issue any letter to the OP stating that they were ready to take the flat.

In fact time is the essence of the agreement. After perusing the said agreement dated 04.03.15 it is found that the important column as clause No.10 regarding stipulated time for handing over the flat remains blank. As per clause-10 of the said agreement the 1^st part and 2^nd part shall deliver the possession of the flat mentioned in the 2^nd schedule below within undisclosed day.

Therefore the OP appears to have not stipulated any specific time for handing over of the flat. Accordingly the argument of the Ld. Advocate for the Complainant that due to unavoidable circumstances the Complainant had to be transferred mutually from Berhampore to Cooch Behar and as such could not take possession of the flat is well accepted.

The argument is reasonable and acceptable in as much as the case record and the documents do not reflect that the OP was ready to hand over the flat in dispute within the stipulated period.

The money receipt also discloses that the Complainant has discharged their part by booking the flat.

It is also the admitted fact that the OP refunded Rs.50,000/- to the Complainant. Had there been no ground to  get any money back, the OP would not have refunded the said sum of Rs.50,000/-.

As per the said terms of the agreement the OP at best can deduct 25% of the amount already paid by the Complainant.

In the backdrop of the aforesaid discussion and observation made herein above the Commission comes to the finding that the Complainant is entitled to get  refund of advance money after deduction of 25% of that money by the OP and the said sum of Rs.50,000/- already refunded by the OP.

Points. No. 2 & 3 are accordingly decided in favour of the Complainant.

In the result the complaint case succeeds on contest with cost.

Hence, it is

Ordered

That the complaint case No. CC/27/2021 be and the same is allowed on contest with cost of Rs.5,000/-.

The Complainants do get an award for a sum of Rs.4.5 Lakhs – 25% of that amount i.e. Rs.1,12,500/- - Rs.50,000/- already refunded, Rs.10,000/- towards deficiency in service and Rs.5,000/- towards litigation cost.

The OP is directed to pay a sum of Rs.3,02,500/- (Rupees Three Lakhs two thousand five hundred only) to the Complainants within 30 days from the date of Final Order failing which the entire award money shall pay an interest @ 6% per annum from the date of passing Final order till the date of realization.

D.A. to note in the trial Register.

Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.

The copy of the Final Order is also available in the official website: www.confonet.nic.in.

Dictated and corrected by me.