This is a complaint made by one Mr. Tufan Ghosh, son of Sri Tarak Nath Ghosh, residing at 249/B5, Khan Mohammad Rd., P.S.-Thakurpukur, Kolkataq-61, South 24-Pgs. against Sri Bhim Sen Yadav, M/s. Pragati Construction, 1B, Black Burn Lane, 3rd fl.,Room No.1, P.S.-Hare Street, Kolkakta – 12, residing at Saila Apartment, 8, Ram Chandra Pally, Purba Barisha, P.S.-Thakurpukur, Kolkata-8, praying for an order directing the OP to refund the due amount already paid by the Complainant within a stipulated time and an order directing the OP to pay compensation to the tune of Rs.50,000/- and litigation cost of Rs.30,000/-.
Facts in brief are that Complainant paid a lump sum amount of Rs.10,10,000/- out of the total consideration of Rs.13,95,000/-, for purchasing of flat mentioned in the schedule of the complaint consisting of 900 sq.ft. Complainant first paid Rs.10,000/-, vide cheque No.594684 on 14.11.2013 of State Bank of India. Thereafter, he paid Rs.5,00,000/- through cheque No.594686 on 22.11.2013 and again Rs.5,00,000/- through cheque No.594687 on 28.11.2013. Unfortunately, even after the lapse of the agreed time between the parties, Complainant did not receive the possession of the flat. When Complainant asked the OP to hand-over the possession and to register the flat, OP No.1 stated that he has sold out the flat to a stranger and OP started to refund the money in January,2015. OP refunded Rs.3,00,000/- and then Rs.1,00,000/-. Thereafter, OP issued cheques for Rs.2,10,000/-, Rs.1,50,000/- and Rs.2,50,000/- out of the said three cheques the cheque for Rs.2,10,000/- was taken back by the OP and he paid Rs.1,30,000/- and then Rs.80,000/- all in cash.
Rest of the amount of Rs.4,00,000/- has not been paid till date, because the cheque No.038891 and 038892 dt.25.2.2016 and 22.3.2016 respectively were returned by the Bank with endorsement of insufficient balance. Complainant suffered from cardiac problem and blood sugar and failed to take any step. Thereafter, Complainant issued a legal notice. But, OP did not pay Rs.4,00,000/-. So, Complainant filed this case.
On the basis of above facts, the complaint was admitted and notices were served by making publication in newspaper.
OP did not appear and contest the case. So, the case is heard ex-parte.
Decision with reasons:
Complainant filed affidavit-in-chief in order to substantiate the allegations of the complaint. In this affidavit-in-chief the Complainant has reiterated the facts, mentioned in the complaint petition. Complainant has filed written notes of argument.
Main point for determination is whether Complainant is entitled to entitled to the reliefs as prayed for.
On perusal of the prayer No.1, it appears that Complainant has sought for refund of the money which he paid to the OP. Complainant has stated that Rs.4,00,000/- is due to be paid to him by the OP.
In the present complaint OP has paid Rs.4,00,000/- by cheque but those cheques were returned with the endorsement insufficient balance, though Complainant has not filed the returned memo, but, since the facts mentioned in the complaint remain un-rebutted and un-challenged it can be accepted that the cheques amounting to Rs.4,00,000/- returned un-paid.
Now, the question is whether Complainant has filed any proceeding under Section 138 of the Negotiable Instrument Act on the returned cheques. It is because law is clear that Complainant cannot take advantage of both the authorities. Complainant has not stated on affidavit that he has filed any complaint under Section 138 of NIA.
Whatever may be the fact, Complainant appears to be entitled for refund or Rs.4,00,000/-, provided no proceeding under Section 138 of NIA is pending. As such, we are of the view that OP should be directed to refund Rs.4,00,000/- to the Complainant.
Complainant has also sought compensation of Rs.50,000/- and litigation cost of Rs.30,000/-. In our views, since Complainant has not made it clear that he has not filed any proceeding under Section 138 NIA, it cannot be said that Complainant approached this Forum with the clean hands in his favour and did not suppress any fact. In the circumstances, we are of the view that the claim of compensation and litigation cost cannot be allowed.
Hence,
ordered
CC/237/2016 and the same is allowed ex-parted in part. OP is directed to pay Rs.4,00,000/- to the Complainant with interest from the date of filing of this complaint till realization.
