HON’BLE SUDIP NIYOGI PRESIDENT FACTS The case of the Complainant in short is that he had entered into an agreement for sale to purchase one flat more or less 215 sq. ft. covered area along with proportionate share of land etc. at premises No.183/1, Nelinagar Colony, P.S.- Garfa, Kolkata – 700078 and the said project was developed by OP No.1 & 2 while OP No.3 is landowner. The consideration of the said flat was Rs.4,30,000/- out of which he paid Rs.2,50,000/- by cheque dated 07.08.2015 as advanced and agreed to pay the balance consideration in accordance with the payment schedule. It was agreed that the said flat would be delivered to the Complainant within 12 months from the date of agreement but unfortunately the said flat was not delivered to the Complainant within the stipulated time and subsequently OP No.1 & 2 agreed to refund the amount of advance and ultimately refunded only Rs.80,000/- by a cheque. But the rest amount was not paid despite repeated requests. So, ultimately Complainant filed this case with a prayer for refund of the rest amount along with interest and other relief(s). OP No.1 & 2 filed one written version praying for dismissal of the complaint though they admitted that the flat in question was booked by the complainant but subsequently, he could not make payment of the entire consideration. They also admitted to have refunded Rs.80,000/- to the complainant. OP No. 3 did not appear to contest the case. Complainant filed his evidence but no evidence was filed on behalf of the OP No. 1 & 2. However, brief notes of argument were filed by the complainant and both the contesting OPs. The point for consideration is whether the complainant is entitled to the relief(s) as prayed for. FINDINGS: We have gone through the materials on record wherefrom it is found that admittedly, complainant had booked the flat, in question, where consideration was fixed at Rs.4,30,000/- and out of which Rs.2,50,000/- was paid by him by a cheque bearing No.000003 dated 07/08/2015. OP No. 1 & 2 did not deny the said fact. A copy of the agreement for sale dated 07/07/2015 filed by the complainant reveals the flat would be delivered to the complainant within 12 months from the date of agreement and the remaining consideration to be paid during construction of the flat and execution of the deed of conveyance. However, it is found subsequently, that the complainant demanded refund of the money as the said flat could not be delivered by the OPs within the stipulated period of time. According to complainant, as OPs could not deliver the flat, in question, he wanted refund of money advanced by him and following which Rs.80,000/- was paid by cheque to the complainant and which admittedly was duly encashed on 29/05/2018. But the balance amount was not refunded. In the written argument filed on behalf of OP No. 1 & 2, it is claimed that complainant accepted the part refund of Rs.80,000/- by cheque. However, they claimed the instant case is barred by limitation and also non-joinder of necessary parties or that the instant case is not maintainable before this Commission as the same was filed simply for refund of money from the OPs. What we find the agreement for sale of the flat, in question, was admitted by the OPs particularly OP No. 1 & 2 who are the developers and accordingly, complainant made advance a part of the consideration. Ther was a stipulated time of 12 months from the date of agreement during which, the OPs to deliver the flat to the complainant subject to payment of balance consideration. But ultimately both the parties agreed for refund of the consideration price and a part of the same was already paid. The cause of action here in this case is a continuous one and considering the context of the instant case, the same cannot be said to be not maintainable before the Consumer Commission. OPs claimed that the instant case is bad for non-joinder of necessary parties as the partnership firm was not made a party. Here both OP No. 1 & 2 are said to be the developers and nowhere in the petition of complaint, the name of the partnership firm was mentioned. However, in the agreement for sale the name of the partnership firm was mentioned and as both the partners who have unlimited liability with regard to the partnership firm having been made parties, the instant complaint case cannot be said to be bad for non-joinder of necessary parties. So, on consideration of the materials on record, we find that the instant case should be allowed in favour of the complainant and OP No. 1 & 2 should be given a direction to refund the balance amount of Rs.1,70,000/- (Rs.2,50,000/- – Rs.80,000/-) along with simple interest @ 9% p.a. from the date of 16/09/2022 which is the date of filing of this complaint. Complainant is also entitled to Rs.5000/- for cost of litigation. Accordingly, it is ORDERED That the instant complaint be and the same is allowed on contest against OP No. 1 & 2 and dismissed ex parte against OP No. 3. OP No. 1 & 2 are directed to pay the balance of advanced amount of Rs.1,70,000/- (Rupees One Lakh Seventy Thousand) to the complainant along with simple interest @ 9% p.a. from the date of filing of the instant complaint i.e. 16/09/2022. OP No. 1 & 2 are also to pay Rs.5000/- (Rupees Five Thousand) towards cost of litigation to the complainant. OP No. 1 & 2 are jointly or severally liable to comply with this order within 45 days from the date of this order, failing which the aforesaid amount shall carry interest @ 12% p.a. until realization in full and the complainant shall be at liberty to proceed in accordance with law to realize the same. Dictated and corrected by me. | 
