Dt. of filing- 03/08/2017

Dt. of Judgement- 28/02/2019

Mrs. Sashi Kala Basu, Hon’ble President.

          This consumer complaint is filed by Shri Santosh Kumar Shaw under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely (1) Shri Avijit Das and (2) Shri Rabin Paul alleging deficiency in service on their part.

          Complainant’s case in short is that OP No.2 entered into an agreement for sale dated 08.02.2016 with the complainant to sell a flat measuring about 380 sq.ft.  more or less  super built up  area  in the  1^st floor   ( Eastern portion in the premises ) being constructed  by OP No.1 and owned by OP No.2. OP No.2 had earlier entered into a development agreement with the OP No.1 on 12.02.2015 to raise a multi-storied building on the land measuring   1 cottah  7 chittaks  44 sq.ft. more or less  under R.S.  Dag No. 1150, J.L. No. 623, Mouza – Dhakuria, J. L. No. 18 under Police Station Garfa. Consideration price of the flat was Rs. 14,00,000/- and out of the sum, complainant paid  2,00,000/- in cash on 08.02.2016, Rs.1,00,000/- by cheque  dated 20.02.2016 and Rs. 40,000/- by cash. So, complainant has paid total payment of Rs. 3,40,000/- to the OP No.1. It was learnt by the complainant in the month of June, 2016 that the OP No.1 in connivance with OP No.2 negotiated with another party and sold the flat agreed with the complainant to the said third party. They had sold the said flat in higher price. Subsequently, OP No.1 paid an amount of Rs. 2,00,000/- to the complainant on 25.07.2016 with promise in writing  that the rest of the amount will be paid within six months. But despite several requests, OP No.1 has not refunded the balance amount to the complainant and thus the present case has been filed by the complainant praying for directing the OP No.1 to pay the balance amount of Rs. 1,45,000/- along with interest @20% and Rs.60,000/- towards harassment and mental agony.

          Complainant has annexed with the complaint petition, Agreement for sale entered between the parties on 08.02.2016, copy of Power of Attorney executed by the owner in favour of the developer namely OP No.1, the copy of the development agreement entered into between the OP No.1 and OP No.2 dated 12.02.2015,  copy  of the Deed of Sale, money receipt and the notice  sent by the complainant to the OP No.1.

          OP No.1 has contested the case by filing  W. V denying the allegations made in the complaint petition stating inter alia that the complainant himself contacted the OP No.1 for cancellation of the agreement and he took backRs.2,00,000/. OP had done some interior work in the flat on the request of the complainant  and consequent  to the said modification, OP had spent Rs. 2,00,000/- and so  the said rest of the amount as claimed by the  complainant  has to be adjusted towards the cost of  said interior work done on his request. So OP No.1  has prayed for dismissal of the complaint petition.

          On perusal of the record it appears that the OP No.2 did not take any step inspite of the service of notice and so the case  proceeded exparte against OP No.2.

          During the course of the evidence, OP No.1 and the complainant have adduced their respective evidence by way of filing affidavit in chief followed by questionnaire and the reply thereto. Complainant has also filed Brief Notes of Argument. However, OP No.1 on the date of hearing of argument remained absent and no argument advanced.

          So, the following points required determination:

1. Whether there has been any deficiency in rendering services on the part of the OPs.
2. Whether the complainant is entitled to the relief as prayed for?

Decision with  reasons :
Point Nos. 1 and 2:

          Both these points are taken up together for comprehensive discussion.

          Complainant has filed the agreement wherefrom it appears   that the agreement was entered into between the complainant and the OP No.1 as Constituted Attorney of OP No.2 on 08.02.2016 in respect of sale of flat measuring about 380 sq.ft. more or less  as described by the complainant in the complaint petition, at a total consideration of Rs. 14,00,000/-.  It is claimed by the complainant that he has paid total amount of Rs.  3,40,000/- out of the said total consideration  of Rs. 14,00,000/-. OP No.1 has not disputed and denied   the execution of the agreement for sale nor has denied the payment of amount of Rs. 3,40,000/- as claimed by the complainant. It is also admitted fact that the flat which was agreed to be sold to the complainant has been sold to a third party by the OPs. According to complainant, they have sold the same without the knowledge of the complainant and they have sold it at a higher price. It is also an admitted fact that out of Rs.3,40,000/- paid by the complainant an amount of Rs. 2,00,000/- has been returned by the OP No.1 to the complainant and Rs. 1,40,000/- is still  to be paid. A document has been filed dated 25.07.2016 wherefrom it appears while returning Rs.2,00,000,  it is specifically stated that rest of the amount will  be paid to the complainant  within  6  months. But apparently, the said rest of the amount has not been paid.

          The only contention which has been raised by the OP No. 1 is that on the request of the complainant some interior work was done and so the cost borne by OP No.1 towards the said additional interior work, has to be adjusted with the said rest of the amount to be paid to the complainant and so the complainant  is not entitled to the said amount. But in this context, it may be pointed out that OP No.1 has not filed any document  to substantiate his claim that any additional interior work has been done and it was done on the request  of the complainant. In the absence of any document, the claim of the OP that any interior work was done and rest of the amount is liable to be adjusted, cannot be accepted. Moreover, the document /money receipt referred to above dated 25.07.2016, is very categorical that Rs.2,00,000/- was paid and  rest  1,00,000/-  will be paid within  six months or the said amount will be adjusted against  new flat. But no new flat has been handed over to the complainant. So question of adjusting the amount towards new flat, does not arise. The claim of the OP No.1 that some additional interior work was done is nothing but an afterthought. If that be so, then the complainant is entitled to amount of Rs. 1,40,000/-  from the OP No.1  along with interest @12% in the form of compensation.

          These points are answered accordingly.

Hence,

                                  Ordered

          CC/458/2017 is allowed on contest against OP No.1 and exparte against OP No.2. OP No.1 is directed to return  the amount of Rs. 1,40,000/- to the complainant along with  interest  @12% p.a. from the date of last payment i.e. 15.04.2016  till this date  within  two months from  this date. OP No.1 shall also pay Rs. 12,000/- to the complainant as ligation cost within the aforesaid period of two months in default the entire sum shall carry interest @ 10% p.a. till its realisation.