IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD AT BERHAMPORE.
CASE No. CC /69/2015.
Date of Filing: 04.06.2015. Date of Final Order: 15.12.2016.
Complainant: Samit Karmakar, S/O Late Manoranjan Karmakar,
Quarter No. C-7/3, S.G.T.P.P Town Ship, P.O Manigram, Dist. Murshidabad.
Pin 742237.
-Vs-
Opposite Party: Shirdi Sai Construction & Developpers, Rep. by
- Smt. Tumpa Sarkar, W/O Sri Dudip Sarkar, 74/10, Kanta Nagar Road, P.O. Khagra, Dist. Murshidabad. Pin 742103.
- Smt. Kuhelika Murkherjee, W/O Sri Narugopal Mukherjee, 49, A.C. Road, P.O. Khagra, Dist. Murshidabad. Pin 742103.
- Sri Partha Sarkar, W/O Nirandranath Sarkar, 82/2, Dayanagar Road, P.O.Khagra, Dist. Murshidabad . Pin 742103.
- Srei Biswadip Mondal, S/O Sri Harihor Mondal, 47/3, Madhupur Road, P.O. Berhampore, Dist. Murshidabad. Pin 742101.
- Sri Sanjib Mondal, W/O Sri Satyen Mondal, 35/A, Dayanagar Road, P.O.Khagra, Dist. Murshidabad. Pin 742103.
Present: Sri Anupam Bhattacharyya ………………….President.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for refund of Rs.1.50 lakh with interest and compensation of Rs.50, 000/- for mental pain and agony.
The complainant’s case, in brief, is that the complainant entered into agreement for sale of the case flat with the OPs at a consideration money of Rs.19, 15,200/-. The complaint in total paid Rs.3.50 lakhs to OP-developers by two cheques of Rs.2 lakhs and Rs.50, 000/- and cash of Rs.1 lakh . The complainant found structural difference of building in accordance with sanctioned plan which is 775.43 sft and in agreement for sale the area is 889 sft and inspite of several requests the OP failed to explain the same. Then, the complaint refused to purchase the flat and asked for refund of advance money. The OP refunded Rs.2 lakh to the complainant by two cheques on 23.12.13 and 19.4.14 . The complaint demanded the refund of balance amount of Rs.1.5 lakh but no result. Then, for unfair trade practice the complainant has filed the complaint. Hence, the instant complaint.
The written version filed by the OP, in brief, is that as per Cl.10 of the agreement sale in case of refusal to purchase after 30 days of booking 30% of the advance amount shall be deducted and/or forfeited. In the instant case the complaint paid Rs.3.5 lakhs and deducting #0% of the same for refusal as per Cl.10 of the agreement the balance amount to be refunded comes to Rs.2.45 lakhs where the OP has paid Rs.2 lakhs as full and final settlement and the complainant has received the same without any objection and for that there is no claim of the complainant and for that complaint is liable to be rejected. Hence, the instant written version.
Considering the pleadings of the both sides the following points have been raised for the disposal of the case.
Points for Consideration.
- Whether the case is maintainable in law and fact?
- Whether the case is barred by principle of waiver, estoppel and acquiescence?
- Whether the case if barred by law of limitation?
- Whether the complainant is entitled to get any relief as prayed for?
- To what other relief/reliefs the complainant is entitled to get?
Decision with Reasons.
Point Nos. 1 to 5.
All the points are taken up together for the sake of convenience.
The instant complaint is for refund of Rs.1.50lakh with interest and compensation of Rs.50, 000/-.
The complainant’s claim is that the complainant paid Rs.3.5 lakhs for purchasing the case flat at a consideration of Rs.1915200/- and for refusal of purchasing the same the OP refunded only Rs.2 lakhs . The complainant is entitled to get further refund of Rs.1.5 lakhs.
Where, the OP’s case is that the complainant has got refund of Rs.2 lakhs with full settlement where his claim is Rs.2.45 lakhs after deduction of 30% of Rs.3.5 lakhs advance money as per Cl.10 of the agreement for deduction in case of refusal after 30 days of booking and for that the complainant is not entitled to get any further refund.
The complainant has filed evidence on affidavit along with relevant documents including plan and agreement for sale in support of his case.
Admittedly, the complainant refused to purchase the impugned flat.
It is also admitted the complainant paid Rs.3.50 lakhs (Rs.2 lakh and Rs.50, 000/- by two separate cheques and cash of Rs.1 lakh) to the OP towards advance for purchasing the impugned flat.
It is further admitted that the complainant received Rs.2 lakhs by two cheques on 23.12.13 and 19.4.14 towards refund of advance money paid by him for purchasing the impugned flat.
The complainant’s case is that he paid Rs.3.50 lakh and received refund of Rs.2 lakh and his claim is further refund of Rs.1.5 lakh.
In this regard the OP’s case is that as per Clause 10 of the agreement in case of cancellation of agreement after 30 days from the date of booking the first Part, OP-Developer shall refund the amount advanced after deducting 30% of the same which is Rs.1.05 Lakh and deducting the same the complainant will get Rs.2.45 lakhs where the complainant has admittedly got refund of Rs.2 lakhs.
Now, OP’s case is that complainant got such refund of Rs.2 lakhs against total refund of Rs.2.45 lakhs with full satisfaction and for that the complainant has no other claim.
But, the OP has not filed any such document with the signature of the complainant towards receipt of refund of Rs.2 lakhs with full satisfaction regarding his claim of refund entitled for Rs.2.45 lakhs after deducting 30% of advance money of Rs.3.50 lakh as per clause 10 of the agreement for sale.
At the same time the complainant has also not filed any such document showing that he refused to purchase the impugned flat within 30 days from the date of booking as per clause 10 of the agreement for sale.
From the documents filed by the complainant it is clear that agreement was executed on 6.12.2012 and from the bank statement and demand notice dt. 19.7.14 claiming refund of Rs.1.50 lakh it is clear that the complainant first paid by cheque dt. 14.9.12 for Rs. 2 lakh and another cheque dt. 12.10.12 for Rs.50, 000/- and lastly Rs.1 lakh by cash on 07.02.2013.
It is also clear from this letter that the complainant got refund of rs.2 lakhs by two cheques dt. 23.12.2013 and 19.4.14.
From the date of refund for the first payment on 23.12.2013 it appears that the refund was made after one year from the date of booking on 14.9.12.
The question of refusal will come obviously after last payment of Rs.1 lakh by cash on 07.02.2013.
Where first payment of Rs.2 lakh by cheque was made on 14.9.12.
The above last payment on 07.02.13 is more than after three months from the date of first payment on 14.9.2012.
This, it is crystal clear that cancellation of agreement was done by the complainant after three months from the date of booking and according to Clause 10 of the Agreement 30% of the amount advance shall be deducted.
Accordingly, the complainant is entitled to get refund of Rs.45, 000/- only towards refund.
Considering the above discussions as a whole all the points are disposed of in favour of the complainant in part and as such the complainant is entitled to get refund of Rs.45, 000/- and major portion of refund for Rs.2 lakh being already paid the complainant is not entitled to get any compensation but he will get interest @8% p.a. only on Rs.45, 000/- from the date of filing of this case till realization.
Hence,
Ordered
that the Consumer Complaint No. 69/2015 be and the same is hereby allowed on merit in part in favour of the complainant.
The complainant is entitled to get Rs.45, 000/-along with 8% interest from the date of filing of this case till realization from the OPs.
The OPs are directed to pay Rs.45, 000/- with interest @ 8% p.a. to the complainant within 45 days from the date of this order, failing which the OPs are to pay Rs.50 per day’s delay as fine and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
Member President
