Date of Filing : 17/05/2018
Date of Judgement : 12/04/2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by Sri Himanghsu Sekhar Das and Tapas Das under section 12 of the Consumer Protection Act 1986 against opposite party (referred as OP hereinafter) namely Soumen Chakraborty Proprietor of A.G. Construction alleging unfair trade practice on the part of the OP.
Complainants’ case in short is that by an agreement of Sale dated 14.10.2014 entered into between the parties, complainant agree to purchase a flat and car parking space described in the said agreement at a total consideration price of Rs.18,00,000/-. Complainants have paid sum of Rs.12,60,000/- out of the said total sum but OP failed to handover the flat within 15 months as per terms of the agreement. In the meantime complainants purchased another flat at Baranagar, so they asked the O.P. to cancel the agreement dt. 14.10.2014 and to refund the sum O.P. assured of returning the sum paid by the complainant and after continuous persuasion O.P. sent a letter dt. 02.09.2017 along with a post dated cheque of Rs.3,00,000/- but on presentation of the said cheque, it was dishonoured on the ground of insufficient fund. Thereafter, complainants requested the OP several times to refund the money but all in vein and thus the present complaint is filed praying for directing the OP to return the sum of Rs.12,60,000/- along with interest @ 12% to pay compensation of Rs.2,00,000/- and litigation cost of Rs.50,000/-.
OP has contested the case by filing the written version contending inter alia that the complainants did not make the payments in terms of the schedule of payment as described in the agreement dated 14.10.2014. After the cancellation of agreement for sale on the behalf of the complainant, there is no privity of contract between the parties and thus complainants are not the consumers under section 2 (d) of the Consumer Protection Act, 1986. So the OP has prayed for dismissal of the case.
During the course of the trial, both parties filed their respective examination-in-chief on affidavit followed by filing of questionnaires and replies thereto and thus ultimately argument has been heard. Both parties have also filed their written notes of argument.
So the following points required to be determined :-
- Whether the complainants are the consumers under the Provision of Consumer Protection Act?
- Whether there has been unfair trade practice on the part of OP?
- Whether the complainants are entitled to the reliefs as prayed for?
Decision with reasons
Point No. 1
At the very outset it may be pertinent to point out that admittedly an agreement for sale dated 14.10.2014 was entered into between the parties wherein OP agreed to sell the flat as described in the schedule `B’ of the said agreement at a total consideration price of Rs.18,00,000/-. So, it is evident that the complainants had hired the service of OP of house construction and there cannot be any denial that complainants are consumers and OP a service provider. Apparently, as per the terms of the agreement OP was to complete the construction and the deed of conveyance was to be executed in favour of the complainants within 15 months from the date of agreement but OP failed to complete the construction and to deliver the possession of the flat. In the letter dt. 02.09.2017 sent by OP to complainant No. 1, OP has admitted that due to some unavoidable circumstances he was unable to complete the construction work. It is settled principles of law that a purchaser cannot be made to wait for an indefinite period. It is further evident that complainants, due to failure on the part of the OP of delivering the flat as per agreement dt. 14.10.2014, purchased another flat in another area by sale deed dt. 21.12.2016 which is after more than 10 months of completion of 15 months and after more than 2 years from the agreement dt. 14.10.2014. So the contention of the OP that the complainants are not consumers cannot be accepted and thus this point is answered accordingly.
Point No. 2 & 3
Both these points being inter-related are taken up together for discussion in order to avoid repetition.
As discussed in point No. 1, it is an admitted fact that an agreement for sale was entered into between the parties and out of total consideration price of Rs.18,00,000/- complainants have paid sum of Rs.12,60,000/- to the OP. In the letter dated 02.09.2017, OP has admitted about the payment of sum by the complainant and gave a cheque of Rs.3,00,000/- towards refund with an assurance that he shall refund rest amount of Rs.15 lakh by 31.12.2017. However, it is pertinent to mention here that admittedly complainants paid total sum of Rs.12,60,000/- and not Rs.18,00,000/-. Rs.18,00,000/- was the total consideration price. According to complainants the cheque of Rs.3 lakh issued by OP was dishonoured on the ground of insufficient fund. Complainants have also filed the said returned cheque with the return memo.
So, as neither flat has been handed over nor the money paid by the complainants has been refunded. Complainants are entitled to the sum of Rs.12,60,000/- along with compensation in the form of interest.
Hence
ORDERED
CC/298/2018 is allowed on contest. OP is directed to refund Rs.12,60,000/- along with interest @ 7% p.a. from the date of last payment i.e. 20.11.2015 to till this date, within two months from this date, in default the sum shall carry further interest @ 7% p.a. till realisation. OP is further directed to pay litigation cost of Rs.10,000/- within the aforesaid period of two months.
