JUDGEMENT

          Complainant by filing this complaint has alleged that op no.5 is the Developer and op nos. 1 to 4 are the land owners and amongst them a Development Agreement dated 20.07.2008 was executed and on the basis of the Development Agreement dated 20.07.2008 op nos. 1 to 4 empowered the op no.5 through a registered General Power of Attorney being Deed No.4101 for the year 2008 permitted the op no.5 to enter into any sale agreement with prospective buyers for undivided portion out of the allocated portion of the developer.

          Fact remains that complainant was seriously looking for a flat for residential purpose and he came to learn that the ops are willing to sell some of the flats out of the owners’ allocation and accordingly complainant approached to op no.5 for purchasing a flat having an area of 750 Sq. Ft. more or less fully included 22% super built area and after discussion full consideration money was fixed at Rs.11,25,000/- and thereafter complainant agreed to purchase it and entered into an agreement to sale on 08.01.2010 and complainant paid a sum of Rs.5 lakhs to the op no.5 by 3 installments by 3 different cheques as per agreement and op received it and issued receipt.

          Complainant paid more or less the 50% of the agreed amount as per the terms of the Agreement dated 08.01.2010 and 25% of the residual amount shall be paid on completion of the brick work and plastering and the remaining 25% of the agreed amount shall be paid at the time of possession.

          But subsequently it was found that for some unknown reasons op no.5 stopped the construction work when complainant met with the op no.5 to know about the non-proceeding of the construction, but op no.5 gave assurance that flat shall be handed over to the complainant very soon.  But subsequently complainant came to know from reliable source that flat in question would be sold to some third party and when complainant enquired about the news with op no.5, op no.5 sent back the complainant stating that all are rumors and need not to be worried as construction work was not yet completed.

          Thereafter complainant approached the op no.5 with the residual 25% of the agreed amount and asked the op no.5 to hand over the possession of the said flat in question and complainant was ready to pay as per agreement, but op refused to accept the money and stated that the possession of the said flat shall be handed over to the complainant after sometime.  Subsequently, complainant met several requests to the op no.5 but when complainant found that all requests were in vain and finding no other alternative asked the op no.5 to refund money what she had paid and against that op no.5 refunded a sum of Rs.95,000/- out of paid total Rs.5 lakhs as advance against booking of the flat.

          Thereafter complainant sent a demand notice on 17.05.2012 asking for refund of balance amount of Rs.4,05,000/- along with 18% p.a. interest but op refused to pay it.  So, the cause of action arose for which for proper relief, complainant files this case for getting refund of the said amount.

          On the other hand op no.5 by filing written statement submitted that practically the complaint is not maintainable because the agreement held is not valid documents but admitted that he received the money on behalf of op nos. 1 to 4 the principal as their Power of Attorney holder he did it and on the strength of Power of Attorney he did everything on behalf of the principal, so, he has not tenable at all in the alleged transaction and moreover complainant already filed another application before West Bengal Building Department and this is still pending.  So, present complaint is not maintainable.

          Further it is submitted that complainant already filed a case u/s 138 of N.I. Act before the A.C.J.M. at Sealdah against him.  Complainant suppressed all these in her complaint, so during pendency of the criminal case being No. C Case 280 of 2011, the present complaint is not tenable and for which the complaint should be dismissed.

                                                  Decision with reasons

          On proper study of the complaint and written version and also considering the agreement in between the complainant and ops and also power of attorney being No.4101 dated 08.01.2010 and also considering the particular portion of the written statement of the op no.5 the Developer, it is proved that developer executed the said agreement for selling of the flat and specifically he has admitted that he received money and issued money receipt.  So, it is undisputed fact that agreement was executed by the op no.5 as Developer and constituted Attorney of other land owners op nos. 1 to 4 and another factor is that complainant has produced the receipt of payment of Rs.2 lakhs on 12.01.2010, Rs.50,000/- on 18.12.2009, and Rs.2,50,000/- on 21.01.2010 and those receipts were issued by Developer op no.5 as constituted Attorney holder for and on behalf of the other land owners that means he issued those receipts as developer and also constituted Attorney of the land owners of op nos. 1 to 4 and op has admitted that he received the said money of Rs.5 lakhs as advance.

          But it is equally true that op has refunded Rs.95,000/- to complainant and complainant received it.  So, balance amount of Rs.4,05,000/- is still in the disposal of the op no.5 and as per provision of law and as per agreement, it is clear that op no.5 did not hand over the flat for which op expressed his desire to refund of Rs. 5 lakhs which has been received by him as advance for booking amount for the said flat and it is fact that complainant is being harassed by the op as op did not complete the said flat and did not hand over the flat, but in the meantime he received Rs.5 lakhs and invested the said capital in his business and op no.5 has got much more benefit from the said fund.  But anyhow the complainant has been deceived by the op because op did not ultimately hand over the flat after taking balance money.  So, no doubt the agreement dated 08.01.2010 has not been implemented when complainant already received back Rs.95,000/- and most interesting factor is that at the time of hearing the argument, we came to learn that op issued 2/3 cheques for payment of balance amount but all the cheques were bounced for which complainant filed criminal case u/s No. 138 of N.I. Act which is pending before Sealdah Court and that is admitted by the op in his written version.  But that was for violation of N.I. Act.  But truth is that for pending criminal proceding this complainant is not barred to file this complaint as per C.P. Act in view of the fact in criminal proceeding no other question except violation of provision of N.I. Act and it is settled principal of law that such a criminal proceeding and the proceeding before any Consumer Forum for prayer for refund of purchase money are maintainable in the eye of law and in this regard section 3 of the C.P. Act is well versed and fact remains in the criminal proceeding deficiency and negligent manner of service shall not be decided but only Consumer Forum as per C.P. Act can decide when in this case service has not been rendered by the op as per agreement to sell, this Forunm has jurisdiction to decide.

          So, invariably the present complaint is maintainable in the eye of law.  But fact remains in this case op has admitted that he received the money and he has also paid back Rs.95,000/- out of advance paid money of Rs.5 lakhs which has been received by the op and paid by the complainant.  So, it is undisputed fact that complainant is entitled to get back Rs.4,05,000/- from the op but op is silent about that, that means op has no desire to repay it and in fact in the meantime op no.5 issued 2/3 cheques in favour of the complainant in support of repayment of balance amount of Rs.4,05,000/- but that cheques are bounced that means op tried to cheat the complainant in so many manners for which as per provision of N.I. Act that criminal proceeding was started.

          But fact remains that op no.5 is bound to repay Rs.4,05,000/- with interest w.e.f February-2010.  But op has not paid, only with intention to deprive the complainant.  So, negligent and deficient manner of service on the part of the op no.5 is proved and at the same time it is settled principal of law that the advance money shall be refunded by the op who has taken such amount against agreement to sale.

          Truth is that agreement dated 08.01.2010 cannot be implemented when complainant already received a portion of advance amount from the op.  so, in the eye of law the agreement cannot be implemented and it has no legal force to implement receipt but in the present case complainant filed this complaint for refund of the money what op no.5 received by issuing proper receipt dated 21.01.2010, 28.12.2009 and 12.01.2010 and as per settled principal of law, op is bound to repay it with interest and also he is bound to pay it along with compensation and no doubt the present complaint is tenable in the eye of law and this Forum has its jurisdiction to dispose of the same by settling the dispute for passing such final order when complainant has been able to prove the entire allegation against the ops on the ground the said receipts were granted by the op no.5 for self and on behalf of the other land owners as their constituent power of attorney registered on 25.07.2008 executed by op nos. 1 to 4 in favour of the op no.5. 

          So, considering that fact we are convinced to hold that ops are bound to repay the same but fact remains it was received by the op no.5 so he shall have to pay it to the complainant along with such interest or compensation etc when ops have harassed the complainant in so many manner by adopting unfair trade practice.

          Thus the complaint succeeds.

          Hence, it is

                                                          ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the op no.5 and same is allowed exparte without any cost against other ops.

          Particularly op no.5 and also other ops are jointly and severally directed to repay and refund the sum of Rs.4,05,000/- to the complainant along with compensation of Rs.1,00,000/- over the said amount for harassing the complainant and for deceiving the complainant in such a manner and for adopting such unfair trade practice by the op no.5.

          Fact remains that in this case the adoption of unfair trade practice by the op no.5 is well proved.  So, op no.5 shall have to pay a sum of Rs.25,000/- as punitive damages for adopting unfair trade practice and to check such sort of practice by op no.5 this punitive damage is imposed and it shall be deposited by op no.5 only before this Forum positively.

          Op no.5 particularly and other ops are jointly and severally directed to comply the order as per spirit of the order within one month from the date of this order failing which for non-compliance of the Forum’s order and disobeyance of the Forum’s order, penal interest @ Rs.300/- shall be assessed till full satisfaction of the decretal dues and if it is not complied by the op no.5 and other ops in that case penal proceeding u/s 27 of C.P. Act 1986 shall be started for which they shall be prosecuted and even further penalty may be imposed for which they shall be responsible.