14/08/15

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT          

             This Appeal is directed against the judgment and order passed by Learned District Forum, Alipore, South 24-Parganas in case no.CC 158 of 2013 allowing the complaint and directing the OP to refund the balance amount of Rs.2,18,000/- and pay cost of Rs.5000/- and compensation of Rs.50,000/- totalling to Rs.2,73,000/- to the Complainant within one month from the date of order failing which interest @ 10% p.a. shall accrue on the aforesaid amount till realisation. 

            The case of the Complainant/Respondent, in short, is that he entered into an agreement with the OPs for purchase of flat on 30/05/99.  The OPs are Developers and Promoters.  The Complainant paid Rs.3,60,000/-.  On 02/08/11 the OPs completed the registration of the sale deed in respect of the flat in question.  Total cost of the registration was Rs.1,42,000/-, but the excess amount of Rs.2,18,000/- has not been refunded to the Complainant.  For the said reason, the complaint was filed before the Learned District Forum. 

            The Learned Counsel for the Appellant has submitted that the Complainant claimed for refund of money only which is beyond the scope of C. P. Act, 1986.  It is submitted that the Complainant has come with unclean hands and there is no mention of payment schedule in the petition of complaint.  It is contended that the Complainant received back all the amount in question from the OP and issued a receipt to that effect on 02/08/11 vide annexure ‘A’ to the Memo of Appeal.

            The Learned Counsel for the Respondent has submitted that the registration of the flat has been made and the excess amount has not been refunded by the Appellant in spite of service of notice by the Respondent.

            We have heard the submission made by both sides and perused the papers on record.  Admittedly, the registration of the flat in question has been made.  It is the contention of the Complainant that after completion of registration the sum of Rs.2,18,000/- was lying with the OP being the excess amount which the OP did not return to the Complainant.  The complaint was decreed ex parte.  Now along with the Memo of Appeal the Appellant has filed a receipt issued by the Complainant on 02/08/11 towards the refund of the entire amount relating to registration.  In view of the receipt issued by the Complainant, we are of the view that the claim of refund made in the complaint is not acceptable.  The impugned judgment is not sustainable. 

            The Appeal is allowed.  We set aside the impugned judgment and order.  The petition of complaint is dismissed.