No. 10/13.07.2009.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Appellant is present through Ld. Advocate Mr. P. Banerjee.  Heard Mr. Banerjee that the present transaction does not come within the Consumer Protection Act.  But we find from the record that admittedly the transaction relating to the flat concerned was in a proposed construction and, therefore, the transaction relating to housing construction being a service contract, comes within the Act.  Next contention of the Appellant is that there was refund of Rs. 25,000/- against amount of Rs. 2,00,000/- paid and the said adjustment has not been granted in the impugned order.  We have perused the materials on record and it appears those materials were considered by the Forum below recording in its judgement in substantial detail such materials.  We are also of the view that non-production of the Account Book by the present Appellant supports drawing adverse inference when it was admitted by them that account representing all transactions of payment are recorded in their Account Book.  It is surprising that neither Account Books were produced nor any explanation was given for non-production thereof.  In such circumstances we agree with the adverse presumption drawn by the Forum in respect of such alleged refund of Rs. 25,000/-.

With regard to payment of Rs. 2,00,000/- there is no effective dispute by the Appellant and, therefore, we agree with the view taken by the Forum below in deciding the matter directing the O.P. to pay to the Complainant a sum of Rs. 2,00,000/- along with interest from the date indicated but with regard to the rate of interest we feel that the interest @ 9% p.a. will be appropriate.  Therefore, the impugned order is modified only to the extent that rate of interest will be 9% w.e.f. 04.03.2003 till payment instead of 10% as directed by the Forum below.  We, therefore, direct the O.P. to make payment of the amount ordered along with interest as indicated hereinabove and cost as directed by the Forum below within 60 days from the date of this order and in default the Complainant will be entitled to recover the amount in accordance with law.