FINAL ORDER/JUDGEMENT
This is an application u/s.12 of the Consumer Protection Act, 1986.
The Complainants booked a residential flat measuring about 360 sq. ft. on the 2nd floor in a project which the OPs are the Developers at Chowbhaga Road, Kolkata – 700 105. They executed an Agreement for Sale with both the OPs on 13.07.2015, incorporating the respective rights and obligations of the parties in respect of the said transaction. The price of the flat is agreed at Rs.4,68,000/-. The possession having not been offered to them despite they having paid Rs.4,00,000/-. Ultimately, OPs executed an undertaking to refund booking money of Rs.4,00,000/- to the Complainants within 03 months. Despite undertaking OPs did not refund the booking amount. Hence, the complainants are before this Forum seeking refund of the aforesaid amount with compensation and litigation costs.
OP-1 despite service of notice of the complaint has failed to file Written Version within the limitation provided under section 13(2) of the Consumer Protection Act, 1986. No request for condonation of delay or extension of the time for filing Written Version is made. Therefore, right of OP-1 to file W/V is closed vide proceedings dated 19.02.2019. OP-1 even did not choose to file any application to set aside the ex-parte order dated 19.02.2019.
The complaint has been resisted by the OP-2 on several grounds. The agreement executed them with the complainants has been admitted. In its Written Version, the OP-2 has denied regarding payment of Rs.4,00,000/- of booking amount by the complainants. The specific case of the answering OP is that he received Rs.50,000/- only from the complainants and also ready to refund such amount. In his Written Version the OP-2 has pleaded that he retired from the partnership firm and he never executed any undertaking to refund the booking amount of the flats to the complainants. Accordingly, the answering OP has prayed for dismissal of the Consumer Complaint.
Both parties have filed their evidence by way of affidavit. Heard the Ld. Advocate for the parties. We have carefully considered the arguments advanced by both the parties and have examined the materials on record.
It is not disputed that an Agreement for Sale dated 13.07.2015 executed between the parties in respect of the booked flat and the price of the flat is Rs.4,68,000/-. Against the total consideration of the flat, the complainants have already paid Rs.4,00,000/-. The possession of the flat is due within 18 months from the date of execution of the Agreement for Sale. On perusal of the undertaking executed by the OPs, it appears that they failed to deliver possession of the booked flat to the complainants and also agreed to refund the entire consideration amount within three months. Despite request and legal notice dated 25.04.2018 OPs failed to refund the booking amount within the stipulated period.
There is no doubt that complainants and OPs executed an Agreement for Sale on 13.07.2015 incorporating the respective rights and obligations of the parties in respect of the said transaction. OPs also executed an undertaking to refund entire consideration amount. Both the OPs put their respective signatures on the Agreement for Sale as well as undertaking. OP2 in his Written Version denied with regard to execution of any undertaking in favour of the complainants. The primary question involved in the case is whether the signature appearing on the undertaking is genuine signature of OP2 or not. OP2 did not file any application for appointment of Hand Written Expert to prove that his signature appearing on the undertaking as alleged by the complainants is forged though the defense of the OP2 is that he never executed any undertaking in favour of the complainants for refund of booking amount. However, the fact remains that initial onus is upon the OP2 to prove that his signature appearing on the undertaking is forged. That having not been done it is difficult to accept the defense of the OP2 that he never signed on the undertaking to refund the booking amount to the complainants.
We once again make it clear that the Ops executed Agreement for Sale dated 13.07.2015 with the complainants as individual capacity not being the partners of any Partnership Firm. Thus, retirement from partnership firm is no way exempted the OP2 from refund the booking amount.
For the reasons stated herein above, the consumer complaint is disposed of with the following directions:-
- The OPs shall refund the entire principal amount of Rs. 40,000/- to the complainants along with compensation in the form of simple interest at the rate of 7 percent per annum from the date of each payment till the date of refund.
- The OPs shall pay a sum of Rs. 5,000/- as cost of litigation to the complainants.
- The liability of the OPs shall be joint as well as several.
- The payments in terms of this order shall be paid within three months from today.
Copy of the judgment be supplied to the parties as per rules. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
