Date of Filing: 07.03.2014                                               Date of Final Order: 28.11.2014

             The complainant Sri Partha Choudhuri, S/o. Chittaranjan Chaudhuri, has filed the present case U/S 12 of the Consumer Protection Act, 1986 against the O.P praying for issuing a direction upon the O.P to pay the claim amount to the complainant also to pay compensation, deficiency in service and cost amounting of Rs.1,40,000/- in total and other relief(s) as the Forum may deem feet and proper.

             The gist of the complaint as culled out from the record is that the complainant intended to purchase one residential flat having 905 sp. Ft. from the Torsa Apartment, Cooch Behar and accordingly the complainant went to the office of the O.P i.e. Torsa Apartment, Cooch Behar on 23-07-2013 for booking the said flat. Thereafter the complainant entered into an agreement for purchasing the said flat with the O.P on 23-07-2013 in presences of witnesses and had deposited booking amount of Rs.1,00,000/- through S.B.I. Cheque No.834303, Cooch Behar and the total price of the said flat was of Rs.21,15,500/-. The O.P issued a money receipt in favour of the complainant, Sri Partha Choudhuri on 23-07-2013 after receiving the booking amount of Rs.1,00,000/-. After booking the said flat the complainant cropped up some financial problem and accordingly the complainant decided to cancel the purchasing of the said flat and requested to the O.P for refund after deducting of 10% of the booking amount in view of sale agreement of the said flat, but the O.P did not pay any heed towards the complainant. The complainant was also written a letter to the O.P on 12-11-2013 for narrating the incident with the requested for refund of the booking amount but all efforts were in vain. The complainant faced hindrance, suffering resulting to irreparable loss, harassment, acute mental pain, agony, pecuniary loss & unnecessary harassment due to deficiency in service & unfair trade practice of the O.P.

             Hence, the complainant filed the instant Case No. DF-13/2014 with enclosed some Xerox copy of documents together with I.P.Os. of Rs.200/- before this Forum for redress of the dispute and prayed for direction to the O.Ps to (1) Refund of the advanced amount after deducting of 10% i.e. Rs.90,000/-, (2) Pay compensation of Rs.15,000/-for mental pain, agony, & unnecessary harassment, (3) Rs.25,000/- for deficiency in service & unfair trade practice and (4) Rs.500/- towards litigation cost, besides other relief(s) as the Forum deem fit, as per law & equity.

            The O.P has contested the case by filing written version denying all material allegation of the complaint contending inter-alia the case is not maintainable and barred by TP Act and Registration Act.

            It is the specific case of the O.P that the alleged agreement as mention in para-4 in the complaint petition is null and void as per Section 17 of the Registration Act, 1908 and as well as the Indian Stamp Act, 1899 and West Bengal Stamp Duty Manual.

            It is the further case of the O.P that the complainant has chosen the wrong Forum to file this case, actually the dispute is purely civil in nature and as there was a contract between the parties and as there was a dispute of performance, part-performance and non-performance of contract which should come under the purview of the Civil Court through Specific Relief Act for proper adjudication.

             It is the further case of the O.P that the complainant entered into an agreement with the O.P on 23-07-2013 for purchasing the flat by depositing advance amount of Rs.1,00,000/-and the complainant would have to pay the balance amount of Rs.20,15,500/- within 20^th August, 2013positively (para (d) of the said agreement) and it also agreed that (As per Agreement dated 23-07-2013) as follows :

            “It is mention that incase of default in payment of the money within stipulated date 1^st part (owner) shall have the right to terminate the agreement for sale and shall have right to transfer the subject flat to any 3^rd party without any consent/legal permission from the purchaser or from any authority or court of law and the advance money paid till date refunded without interest deducting @ 10% from the total amount”.

            It is the further case of the O.P that till 20^th August, 2013 neither the complainant himself nor any authorized person on behalf of the complainant made any contact with the O.P to take over the said flat by depositing the balance amount i.e. amounting Rs.20,15,500/- and after repeated request/approach by the O.P, the complainant did not deposit the balance amount of the said flat nor intimated anything to the O.P in due time. So, question of deficiency in service as well unfair trade practices as alleged on the part of the O.P does not arise at all.

            It is the specific case of the O.P that by sending a letter the complainant has claimed Rs.1,00,000/- from the O.P as per alleged terms of agreement, which was received by the O.P on 12-11-2013 and by sending reply the O.P intimated the complainant that he is not entitled to get such money as he failed to perform his part of performance of contract.

            It is the next case of the O.P that there was no deficiency in service on the part of the O.P and the case is liable to be dismissed with costs/compensation of Rs.50,000/- to the O.P for his loss.

            In the light of the contention of both parties, the following points necessarily came up for consideration.

POINTS  FOR  CONSIDERATION

1. Is the Complainant is a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
2. Has this Forum jurisdiction to entertain the instant complaint?
3. Have the Opposite Parties any deficiency in service by repudiating the claim of the Complainant and are they liable in any way?
4. Whether the Complainant is entitled to get relief/reliefs as prayed for?

DECISION WITH REASONS

          We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.

Point No.1.

           Evidently, on the basis of an agreement the complainant has paid Rs.1,00,000/- to the O.P for purchasing a flat.

           So, relation between the complainant and the O.P has been established and the complainant is consumer under the O.P.

Point No.2.

            Evidently, the O.P is resident of Cooch Behar and total valuation of this case is Rs.1,40,000/- which less than Rs.20,00,000/- i.e. maximum limit of jurisdiction of this Forum.

            So, this Forum has territorial and pecuniary jurisdiction to try this case.

            It is also the case of the O.P that the complainant has chosen the wrong Forum to file this case, actually the dispute is purely civil in nature and as there was a contract between the parties and as there was a dispute of performance, part-performance and non-performance of contract which should come under the purview of the Civil Court through Specific Relief Act for proper adjudication.

            But we find from the ruling reported in 2014 CJ 619 (NC) where the complainants filed a case before the District Forum against the O.Ps seeking relief that their sale deed should be executed at the costs of the complainants with other relief as the complainant already paid consideration money by installments.

            District Forum allowed the case and on appeal Hon’ble State Commission dismissed the appeal. Lastly Hon’ble National Commission dismissed the revision application.

            So, in view of above cited ruling it can be safely said that this Court can entertain this type of cases regarding part-performance of contract.

Point No. 3 & 4.

            It is the case of the complainant that the complainant intended to purchase one residential flat having 905 sp. Ft. from the Torsa Apartment, Cooch Behar and accordingly the complainant went to the office of the O.P i.e. Torsa Apartment, Cooch Behar on 23-07-2013 for booking the said flat. Thereafter the complainant entered into an agreement for purchasing the said flat with the O.P on 23-07-2013 in presences of witnesses and had deposited booking amount of Rs.1,00,000/- through S.B.I. Cheque No.834303, Cooch Behar and the total price of the said flat was of Rs.21,15,500/-. The O.P issued a money receipt in favour of the complainant, Sri Partha Choudhuri on 23-07-2013 after receiving the booking amount of Rs.1,00,000/-.

            It appears from the ‘Annexure-2’, original money receipt that the O.P received Rs.1,00,000/- from the complainant through S.B.I., Cooch Behar, Cheque No.834303 dated 23-07-2013.

            It appears from the ‘Annexure-1’ i.e. agreement that O.P received Rs.1,00,000/- out of total consideration money of Rs.21,15,500/- for selling an apartment measuring 905 Sq. ft. at Torsa Apartment.

            The O.P did not deny the fact that the O.P paid Rs.1,00,000/- to him. Rather it is the case of the O.P that as the complainant failed to perform part of his performance of contract as agreed on depositing the balance amount in due time the O.P is entitled to get 10% of the total amount of Rs.20,15,500/- i.e. Rs.2,01,550/-.

            It is the further case of the complainant that due to some financial problem he decided to cancel the booking of purchasing of flat and he is entitled to get back Rs.1,00,000/- after deducting 10% i.e. Rs.90,000/-.

            During hearing of argument Ld. Advocate/Agent of the O.P submitted that unstamped and unregistered copy of the agreement is not admissible in evidence and even the complainant did not file original copy of agreement.

            Admittedly, the O.P is a party to the said agreement and on the basis of said agreement he received Rs.1,00,000/- and agreed to sell the said flat after taking balance amount, so how he can challenge the said document.

            After completion of argument the complainant submitted the original copy of the agreement in question Ld. Advocate/Agent of the O.P raised strong objection for filing of the said document at last stage. But like Civil Court in our Forum there is no provision for proving the document. So, we think there is no impediment to accept said original document.

            In view of proviso of Section-49 of Registration Act an unregistered document affecting immovable property and required by the Registration Act or the Transfer of Property Act to be registered may be received as evidence of contract in a suit for specific performance under chapter-II of the Specific Relief Act or evidence of any collateral transaction not required to be effected by registered instrument.

            Evidently, by submitting application dated 12-11-2013 the complainant prayed for refund of Rs.1,00,000/- paid by him to the O.P as advance money. (Annexure-3).

            Ld. Advocate/Agent of the O.P submitted that Rs.1,00,000/- was paid by the complainant to the O.P on 23-07-2013. But thereafter the complainant did not informed anything to the O.P and lastly on 12-11-2013 by filing application he has cancelled the booking and prayed for return of advance money and as such the O.P by sending a letter informed the complainant that as he failed to perform his part of performance of contract as agreed and deposit balance amount in due time he should have to pay the 10% from the total amount of Rs.20,15,500/- i.e. Rs.2,01,550/-.

            We find that in the agreement there is clause that it is mention that incase of default in payment of the money within stipulated date 1^st part (owner) shall have the right to terminate the agreement for sale and shall have right to transfer the subject flat to any 3^rd party without any consent/legal permission from the purchaser or from any authority or court of law and the advance money paid till date refunded without interest deducting @ 10% from the total amount”.

            We find that there is clear mention in the agreement that the advance money paid till date refunded without interest deducting @10% from the total amount. We find that said total amount means total advance paid by the complainant i.e. Rs.1,00,000/- and not entire consideration money Rs.21,15,500/-. The O.P did not pay said money. So, there was deficiency in service.

            Considering an overall matter into consideration and materials on record we are constrained to hold that the complainant is entitled to get Rs.1,00,000/- deducting 10% of the same i.e. Rs.90,000/- and Rs.5,000/- as compensation for mental pain, agony and deficiency in service and Rs.5,000/- as costs.

            Accordingly the case is succeeds in part.

ORDER

Hence, it is ordered that,

                The DF Case No.13/2014 is allowed in part on contest against the O.P with litigation costs of Rs.5,000/- payable to the complainant, Sri Partha Choudhuri.

            The O.P is also directed to pay Rs.90,000/- to the complainant as advance money paid to him and Rs.5,000/- for mental pain, agony and compensation. The ordered amount shall pay to the Complainant directly to the concerned party within 45 days failure of which the Opposite Party shall pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.

            Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.