This is a complaint filed by Smt. Debjani Dutta, wife of Sri Biswajit Dutta, residing at Flat No.H, 1st floor, Akshanka Apartment, Sukanta Sarani, P.S.-Dum Dum, Kolkata-700 079 against (1) Sri Ajoy Chandra Sen, son of Late Naresh Chandra Sen, residing at 18/4, Narayan Roy Road, Barisha, P.S.-Thakurpukur, Kolkata-700 008, OP No.1, (2) Sri Subrata Das, son of Late Hiralal Das, residing at Jote Shibrampur, P.S.-Mahestala, Kolkata-700 141, OP No.2 and (3) M/s Pragati Construction, a partnership firm having its office at 18/4, Narayan Roy Road, Barisha, P.S.-Thakurpukur, Kolkata-700 008, OP No.3, praying for (a) an order directing the OP to return the amount of Rs.9,00,000/-, (b) an order directing the OP to pay compensation amount of Rs.50,000/- for mental agony, (c) an order for interest @ 18% p.a. and (d) an order directing the OP to settle out the account in the name of the Complainant.
Facts in brief are that Complainant is a bona fide consumer and is a housewife and hails from a very respectable family. Her husband is working at Damodar Valley Corporation in the post of Superintending Engineer, now posted at Maithon, Jharkhand, 250 km from Kolkata. Complainant and her husband searched for an alternative accommodation. OP is a partnership company, owned by Sri Ajoy Chandra Sen, OP No.1 and Sri Subrata Das, OP No.2. The husband and the Complainant got introduced to the OP through a mutual friend and an agreement was made between OPs and Complainant for purchasing a flat No.B2, measuring about 900 sq.ft more or less super built up area comprising of two bed rooms, one living /dining cum kitchen, two toilets and one verandah with a 120 sq.ft. car parking space.
An agreement to sale was entered between the parties on 17.6.2015. Complainant paid Rs.9,00,000/- to OP No.12 & 2. There is no arbitration clause in the agreement. As per the agreement the flat was to be ready and habitable by 16.2.2016, six months from the date of execution of the agreement. But the flat was not completed. Since Complainant received no response from the OP within the reasonable time, he served a legal notice upon the OPs by registered post, requesting them to return back the advance payment along with interest @ 10%p.a. In reply, OP No.1 admitted that out of Rs.9,00,000/- Rs.2,00,000/- shall be deducted from the amount and with will be done after sale of the flat. Till date despite repeated attempts and requests OP has not returned the money. So, Complainant filed this case.
OPs filed written version where they denied the allegations of the complaint para-wise. Further, OP has admitted that Complainant paid Rs.9,00,000/- as earnest money for purchasing a flat, but, he failed to pay the rest of the amount which caused suffering to the OP. Except this OP has denied other allegations and has stated that if the agreement is cancelled the OPs shall have no responsibility to repay or return back the money as stated by the Complaint. Everything depends on the whims of the OP to return back the amount. Further, OP has stated that they are not in a position to return the money, unless the flat is sold. So, they have prayed for dismissal of this case.
Decision with reasons
Complainant filed affidavit-in-chief wherein he reiterated the facts mentioned made out in the complaint. OP filed questionnaire against the affidavit-in-chief. Complainant filed affidavit-in-reply against the questionnaire of the OP. OP filed evidence on affidavit against which Complainant filed questionnaire and OP filed affidavit-in-reply.
Main point for determination as to whether Complainant is entitled to the reliefs prayed by him in the prayer portion.
On perusal of the prayer portion, it appears that Complainant has prayed for an order directing the OP to return the amount of Rs.9,00,000/-. In this regard, there does not appear any dispute. OP has admitted in evidence as well as written version that they received Rs.9,00,000/-. But, their contention is that the flat is still unsold and due to latches of the Complainant they suffered huge loss. Whatever may be the case, since OP received Rs.9,00,000/-, the bounden duty of the OP is to refund it. No doubt, in the present case the flat could not be sold due to the latches of the Complainant, for which Complainant may not be entitled to claim any interest upon this amount.
In prayer (c ) Complainant has prayed for interest @ 18%p.a. till the date of realization on Rs.9,00,000/-, which does not appear feasible. It is because due to the latches of the Complainant, the OP could not sale his flat. So, prayer (c ) cannot be allowed.
Further, Complainant has prayed for compensation of Rs.50,000/- and litigation cost.
In our view, Complainant is not entitled to any compensation, because, due to his conduct OP suffered a little bit loss. So, it is clear that if a direction upon the OP is given for refunding Rs.9,00,000/- by which justice could be served.
Hence,
ordered
CC/180/2016 is allowed on contest in part. OPs are directed to refund Rs.9,00,000/- to Complainant within six months of this order.
