This appeal is preferred against the Final Order dated 30.06.20216 delivered by Ld. DCDRF, Siliguri in CC No. 51/2011.

The CC No 51 of 2011 was filed by the respondent of this appeal against the appellants and the same was decided in favour of the respondents on 13.02.2012.

The said Final Order was challenged before the Hon’ble SCDRC, Kolkata bench where in the contested appeal, the said Judgement was set aside.

The order of Hon’ble SCDRC, Kolkata was challenged before the Hon’ble NCDRC.

Hon’ble NCDRC after hearing both sides was pleased to set aside the order of SCDRC, Kolkata bench and remanded back to the district forum to adjudicate the dispute afresh after giving opportunity to the complainant /respondents to amend the consumer complaint to the score that actually the talk and negotiations was held in respect of two flats but not one comprised in block ‘A’ and block ‘B’ of the same housing complex.

Accordingly, the respondents amended the consumer complaint and after hearing afresh. Ld. Forum has delivered the Fresh Final order dated 30.06.2016 against which the appellant (OP) registered the appeal before the SCDRC, Kolkata bench. After set up of this circuit bench, this appeal was re-assigned here for disposal and both parties of the appeal have participated in the process of hearing the appeal.

After amendment, the case in capsulated form is that on 01-08-2007 the petitioners of the present case entered into an agreement for sale of flat with the Appellant to purchase a flat measuring about 850 Sq. Ft. @ 950/ per Sq. Ft. which is situated on the first floor of the Block - A marked as flat No - 1. along with undivided proportionate share in the land measuring about 13 Kathas, comprised within Plot No-418, recorded in Khatian, No 490, Mouza - Dhankikata. J.L. No -83. under Police Station - Matigara, District - Darjeeling, and at the time of entering into the agreement, the Respondent No 1 & 2 paid a sum of Rs. 1,77,650/-. And thereafter the Respondent No - 1 & 2 expressed before the appellant that they would approach the suitable financial institution for having some loan to pay the balance consideration of the flat in question and at that time the appellant suggested the Respondent No-1 & 2 that he had a business transaction with the Respondent No-3. So, he could arrange loan from the Respondent No - 3 and shall also render necessary tadbir for having the loan in favour of the Respondent No 1 & 2 and the Respondent No - 1 & 2 agreed for the same. Thereafter, the appellant took the Respondent No - 1 & 2 to the Respondent No - 3 and the officials of the Respondent No - 3 took some signatures of the Respondent No 1 & 2 and after processing the same, after some time the Respondent No-3 sanctioned loan to the tune of Rs. 7.49,000/- in favour of the Respondent No - 1 & 2 and to secure the loan, the Respondent No-3 asked the Respondent No - 1 & 2 to deposit the original deed of agreement dated 1 - 8 2007 along with other documents and accordingly the Respondent No - 1 & 2 have handed over the original agreement for sale to the appellant to deposit the same to the office of the Respondent No - 3 in security of the loan and later the appellant has informed the Respondent No 1 & 2 about the depositing of the original agreement of sale before the office of the Respondent No - 3.

After sanction of the loan amount, the Respondent No 1 & 2 in order to deduct the loan amount from the entire sale consideration and in terms of loan started paying the installment to the bank authority and most of the times the Respondent No 1 & 2 used to send the installments amount of the loan through the appellant because the appellant has the frequent visit to the office of the Respondent No 3. When the construction of the building was almost completed, the petitioners started requesting the appellant for execution as well as registration of their flat and the appellant asked to bear some days for getting registered their flat on the plea that other intending flat purchasers are not ready to get registered their respective flats, so when their sale deed would be registered, the sale deed of the Respondent No-1 & 2 will be registered and believing the statements of the appellant the Respondent No 1 & 2 were started waiting for the positive response of the appellant. And by this way a, considerable time had already been passed but ultimately no sale deed has been executed and registered by the appellant. The Respondent No - 1 & 2 also stated that apart from the installment amount they have paid some additional amount to the appellant to pay the same to the Respondent No - 3 but due to cordial relation the appellant never issued any receipt nor the petitioners have ever asked for such receipt. But it is the appellant who suggested that whatever extra amount would be handed over by the Respondent No - 1 & 2 that would be kept by him and he would deposit the same at the appropriate time in order to complete the loan, when it will be seen that the total amount would be sufficient to meet the loan. The Respondent No-1 & 2 have no knowledge about the loan because all the intimations of the Respondent No - 3 regarding the sanction of loan received by the appellant and by believing the statements of the appellant that he had the good business relation with the Respondent No - 3 causing that they may hand over the installments of the loan and the Respondent No 1 & 2 handed over the installments time to time to the appellant who supposed to deposit the same on the loan account of the Respondent No 1 & 2 to the office of the Respondent No-3. It is further contended in the amended plaint that at the time of negotiation of flat of Block A, the Respondent No-1 & 2 has also intended to have another Flat at third Floor of Block B and in furtherance of the such negotiation, the appellant has entered into a separate deed of agreement for sale in respect of flat of Block B and in terms of agreement for the flat of Block B, the Respondent No - 1 & 2 has paid 1,24,000/- which the appellant has acknowledged by way of 7 money receipts and after elapse of certain time the Respondent No - 1 & 2 realized that it would not be possible for them to purchase two flats i.e. the Flat of Block - A and flat of Block -B, the Respondent No & 2 express their intention to cancel the booking of Flat of Block - B and eventually the appellant has returned a total sum of Rs. 1,87.000/- on different dates and the original agreement to sale for flat of Block - B was destroyed by the appellant in presence of the Respondent No - 1. It has also been stated that the return of money by appellant for which the Respondent No - 1 & 2 acknowledged dated 7-3-2009, 25-6-2009 and 28-8-2009 were meant for the Flat of Block - B but in no way in respect of the suit flat i.e., the flat of Block - A and during trial of the proceeding the appellant by producing the acknowledgement dated 7 -3-2009 has tried to twist the fact and convince the Ld. Forum and the agreement dated 1-8-2007 for the Flat of Block - A is still subsists. On 30-4-2010 all of a sudden, the Respondent No-1 & 2 have received a letter from the Respondent No - 3 that certain amount has become overdue and after receiving the said letter the Respondent No - 1 & 2 handed over the said letter to the appellant and the appellant assured the Respondent No-1 & 2 that he would look after the matter and gave some confidence to the Respondent No & 2 to not to worry about the fact. By letter dated 6-3-2009 the Respondent No-3 requested the appellant to deposit the title deed of the Respondent No - 1 & 2 but the appellant any how managed the Respondent No-3 and the Respondent No -1 and 2 were never been informed about the said fact. When the appellant was not paying any heed to the request of the Respondent No – 1 &2 to execute the sale deed of the flat, the Respondent N_{0} - 1 & 2 started some smelling of ill motives of the appellant and ultimately on 26-10-2010 the Respondent No -1&2 issued one letter to the Respondent No- 3 to look after the matter and further by their letter dated 15-2-2011 through their advocate Smt. Jaya Banerjee, Advocate/ Siliguri requested the appellant to execute proper deed of sale and register the same. Inspite of receiving the said notice the appellant did not turn to execute the sale deed. It has also stated by the Respondent No - 1 & 2 that through letter dated 01-11-2010 of the Respondent No - 3 they came to know that the entire loan amount was paid and deposited by the appellant on behalf of the Respondent No - 1 & 2 and the original deed of agreement dated 01-08-2007 and other necessary documents of the Respondent No - 1 & 2 are laying with the appellant or Respondent No - 3. In the amended plaint it has further contended that during the course of trial of the proceeding, it reveals that the Respondent No - 3 has handed over the original deed of agreement dated 01-08-2007 to the appellant and it is believed that the Respondent No - 3 and its officials had made those mischief in collusion and instance of the appellant and thereby the respondent No - 3 is guilty of malpractice as well as deficiency in service. Cause of action was arose on 01-08-2007 and thereafter on 30-04-2010 when the Respondent No-3 issued the letter to the Respondent No-1 & 2 regarding overdue installments of the loan and on 15-02-2011 when the notice was issued by the lawyer of the Respondent No - 1 & 2 and also arise for guilt of the deficiency in service as well as malpractice of the Respondent No-3, and they prayed for specific performance of contract for sale of the suit property, to execute proper deed of sale with direction to the O.P No-1 to deliver actual and khas and physical possession of the suit property valued Rs. 8,07,500/- and compensation in the tune of Rs. 20,00,000/- along with direction restraining the O.P No. - 1 from transferring and /or alienating any portion of the suit property along with an amount of Rs. 2,00,000/- as compensation for mental agony and harassment and agony. Other relief to the petitioners i.e. the suit has been valued at Rs. 30,07,500/- the case of the appellant is that a negotiation took place in between the Respondent No -1&2 and the appellant for transaction of a flat measuring about 850 Sq.ft 950/- per sq. ft. and the appellant received a sum of Rs. 1.77,650 - as advance from the Respondent No. 1 & 2 against the sale of flat of Block - A in three installments Le on 21.5.2007  And accordingly on 1-8-2007 one agreement for sale of flat was executed in between the Respondent No. 1&2 and the appellant. After the said agreement, when the Respondent No-1& 2 failed to obtain the loan from the available sources, the Respondent No. 1&2 have requested the appellant to show them path for loan and accordingly the appellant has suggested the Respondent No. 1 & 2 that they may approach the Respondent No. 3 for loan and accordingly the Respondent No. 1 & 2 have visited the Respondent No. 3 for loan and after proper verification, the Respondent No. 3 sanctioned the loan in favour of the Respondent No. 1 & 2 and the said fact was intimated by the Respondent No. 1 & 2 to the appellant. After receiving the loan money from the Respondent No. 3 the Respondent No. 1 & 2 have started avoiding the appellant from taking registration and have also started avoiding the Respondent No-3 to repay the loan money. Finding no other alternative upon the continuous pressure of the Respondent No-3, on 28-6-2008 the appellant issued a letter to the Respondent No -1 & 2 with request to take registration of the flat and to deposit the original title deed before the Respondent No 3 and has also requested to make arrangement for the balance payment. It is further to be submitted here that after receiving the said letter of the appellant, the Respondent No - 1 visited the office of the appellant and requested to consider his financial condition and he put a proposal before the appellant that appellant has to bear with the Respondent No 1 & 2 and if needed they will surrender the flat to the appellant in future and if the financial position of the Respondent No - 1 & 2 be uplifted then they return the entire amount of installments what so-ever and the appellant will pay to the Respondent No - 3 on their behalf and according to said amicable settlement, this appellant started repaying the installments of the Respondent No - 1 & 2 to the Respondent No - 3 out of his own funds with a hope that the Respondent No - 1 & 2 will either return the flat to him or they shall return the entire amount what-so-ever. He is paying to the Respondent No - 3 in near future or at the time of taking registration of the flat and accordingly on 11-8-2008 this appellant paid a sum of Rs. 32.500/- as first installment and on 19-12-2008 this appellant paid a sum of Rs. 16.000/- as second installment to the Respondent No - 3 out of his own fund. Lastly the Respondent No - 1 & 2 had decided to cancel to purchase of the flat of Block - A with condition that the appellant had to return their entire loan money to the Respondent No - 1 & 2 and he had to return the entire advance money to them which the appellant received from the petitioners at the time of booking of flat and he had to pay more or less an excess money of Rs. 10,000/- over the advance money to them for which the appellant agreed and accordingly upon the said amicable settlement, on 7 - 3 -2009 the appellant acknowledged to receive a sum of Rs. 50,000/- on account of cancellation of flat and on 25-6-2009 he again received a sum of Rs. 1,27,000 and on 28-8-2009 a sum of Rs. 10.000- from the appellant. Though the Respondent No -1 & 2 have advanced a sum of Rs.1,77,650- but the appellant has returned a sum of Rs. 1,87,000/- to the Respondent No 1 & 2 as agreed in between them. After the acknowledgement of the Respondent No-1 & 2 for the cancellation of the flat, this appellant paid a sum of Rs. 50,000/-, on 9-10-2010 a sum of Rs. 50.000- to the Respondent No-3 and on 1-11-2010 a sum of Rs. 8,10,600- to the Respondent No-3 as full and final amount of the loan money. This appellant has paid a total money amounting to Rs. 9.59.100/- to the Respondent No-3 on account of payment of loan money of the Respondent No-1 & 2. Though the appellant received a sum of Rs 8.27,650 but he returned a sum of Rs. 11,46,100/- to the Respondent No - 1 & 2 and the Respondent No-3. Appellant never neglected to execute sale deed but the Respondent No - 1 & 2 are the persons who avoided getting registration of the flat. Respondent No 1 has issued an acknowledgement regarding the cancellation of the flat which he intended to purchase. Prior to cancellation of flat by the Respondent No 1 & 2 i.e., prior to 28-6-2008 not a single furtherance has been paid to the Respondent No - 3 against the said loan from the part of the Respondent No - 1 & 2 and after cancellation of the flat by the Respondent No 1, this appellant has started repaying the loan money of the Respondent No 1 & 2 not only that this appellant has also cleared the entire advance money to the Respondent No 1 & 2. After amicable negotiation in between the Respondent No 1 & 2 and appellant, he took the entire charge to repay the loan money of the Respondent No - 1 & 2 to the Respondent No 3 out of his own fund but due to some financial crisis in between the month of January 2009 to April 2010 he cannot pay any installment to the Respondent No-3 but when the Respondent No-1 & 2 has informed about the said notice dated 30-4-2010, he immediately rushed to the Respondent No-3 and on 3-5-2010 he deposited a sum of Rs. 50,000/- and on 9-10-2010 and again deposited a sum of Rs. 50,000/- and lastly on I -11-2010 he deposited a sum of Rs. 8.10.600- to the Respondent No - 3 out of his own fund against the cancellation of the suit flat and obtained the clearance certificate of the loan account of the Respondent No 1 & 2 from the Respondent No-3. The appellant has also denied the money receipts on the pleading that none of the money receipts as alleged for the flat of Block-B has been issued by the appellant and none of the money receipt either written by the appellant nor bears the signature of the appellant. The money receipt for the sum of Rs. 21000/- bears only signature of the appellant but the contentions of the same has neither written by the appellant nor the serial number as alleged bearing No - 19/07-08 has been issued for the period of 2007 because the money receipt having serial number 19/06-07 has already been issued by the appellant for the sum of Rs. 50,000/-. Apart of that the appellant further submits that the alleged money receipt has been issued in the name of Umarayati debi Prasad but the same is signed by Dasrat Prasad. It has further submitted that the Respondent No - 1 & 2 has fraudulently obtained or thefted the blank signed money receipt of the appellant and has manipulated the same purposefully for the Flat of Block - B. in the name of Umrayati debi Prasad. In respect of alleged money receipt dated 28-7 2007 for the sum of Rs. 30.000/- the appellant denied his signature and has also disputed the serial number 21/07-08 and has also denied the averments. From the alleged money receipt, it is clear that the money has been paid by cheque but neither there is any number of cheque or the name of the drawer bank not only that the Respondent No 1 & 2 has not furnished any document regarding the encashment of the said cheques. The appellant has also denied the averments of the alleged money receipt. In respect of the alleged money receipt dated 30-12-2007 for the sum of Rs.25.000/- and dated 6-1-2008 for the sum of Rs 21.000/- the appellant denied his signature and the writing of the averments. From the averments of both the alleged money receipt it is clear that the Respondent No-1 & 2 has paid the money through cheques, but there is neither any whisper of cheque number nor the name of drawer bank not only that the petitioner has also not filed any supportive document to establish that whether the cheques have ever been encased or not by the appellant. Not only that the alleged money receipts do not bear any serial number. Not only that the column of signature of purchaser remains blank. In respect of alleged money receipt dated 18-6 2008 for the sum of Rs. 10,000/- it neither bear the signature of the appellant nor the averments of the same has been written by the appellant, nor the alleged money receipt bears any serial number and from the averments of the same it is also not clear that for what purpose the alleged money receipts have been prepared. Not only that the column of signature of purchaser remains blank. In respect of alleged money receipt dated 19 6-2008 for the sum of Rs. 4000/- does neither bear the signature of the appellant nor the averments of the same has been written by the appellant, nor the alleged money receipt bears any serial number and from the averments of the same it is also not clear in which year the same has been prepared. Not only that it has also been noticed that the money receipt has been prepared for the gate, chanel, gril. It is to be submitted here that if any flat be booked for purchasing against fixed consideration price from the promoter or developer, the said fixed consideration price includes the cost of gate, gril and all other fittings causing there is no need for any intending purchaser to make payment separately on the head of gril, gait or any other fittings. Not only that the column of signature ofpurchaser also remains blank. In respect of alleged money receipt for the sum of Rs. 13,000/- does neither bears the signature of the appellant nor the averments have been written by the appellant. Not only that there is difference of quantum of money which is written in word and figure and it is also not clear that for what purpose the same has been prepared. Not only that the said money receipt also does not bear any serial number and the column of signature of purchaser remains blank. It is contended that the alleged money receipt as placed by the Respondent No-1 & 2 in support of their claim for the flat of Block B is a disputed one and they have procured and prepared the same purposely to establish that they have booked another flat in Block - B. The appellant has also denied that the Respondent No-1 & 2 have cancelled the flat of Block - B and it has also been denied that against the said cancellation of Flat of Block B, the Respondent No I acknowledged to receive a sum of Rs. 1,87,000/- in three installments. The Respondent No - 1 & 2 have never booked any flat of Block -B nor they have paid any money against the booking of the flat of Block - B. The appellant has never issued any money receipt either in the name of Umorawati debi Prasad nor in the name of Dasrath Prasad against the booking of Flat of Block - B save and except against the booking of Flat of Block - A and the Respondent No 1 & 2 have paid a sum of Rs. 1.77,650/- as advance against the booking of Flat of Block - A and subsequently the same has been cancelled by the Respondent No - 1 & 2 and against the cancellation of the same, the Respondent No 1 & 2 have received a sum of Rs. 1,87,000/- from the appellant which they have advanced on condition that the appellant has to bear all the liability of loan account of the Respondent No - 1 & 2 and to remit the same to the satisfaction of the bank i.e. the Respondent No - 3. And against the said mutual settlement for the cancellation of the flat of Block A, the appellant has returned the entire advance money to the Respondent No 1 & 2 which they have acknowledged by issuing acknowledgement receipt dated 7-3-2009 and on 1-11-2011. The appellant has cleared the loan of the Respondent No - 1 & 2 out of his own fund as agreed by them to the Respondent No-3. It has further contended that from the averments of the alleged money receipts and pleading of the Respondent No 1 & 2, the Respondent No-1 & 2 might have paid a sum of Rs. 1.24,000/- for the flat of Block B, but there is no authentic reason for the appellant to return a sum of Rs. 1,87,000/- against the receipt of Rs. 1,24,000/- for the cancellation of flat of Block-B. Actually the return of advance money was related with the flat of Block - A but the Respondent No - 1& 2 are trying to twist the fact purposefully for their illegal gain and wrongful loss to the appellant. The Respondent No - 1 & 2 have never booked any flat of Block – B, nor they have received any money from the appellant against the cancellation of flat of Block - B not only that the appellant also did never received any booking money against flat of Block - B. When there is no agreement regarding the booking of flat of Block – B, the question of cancellation of the same does not arise. After clearing the entire loan money, this appellant duly informed the clearance of the loan money to the Respondent No 1. So, this Respondent No - 1 & 2 have lost their every right over the said flat which they cancelled to purchase and when they get back their advance money and when the appellant cleared the entire loan money to the Respondent No -3 on behalf of the Respondent No - 1 & 2. After getting information of the clearance of the loan money, the Respondent No 1 visited the office of the appellant and has taken the entire documents from him save and except the said deed of agreement. On the day of receiving the documents, the Respondent No - 1 again demanded a further sum of Rs. 50,000/- from the appellant but the appellant has refused to pay any money to the Respondent No 1 and upon his refusal the Respondent No - 1 has threatened the appellant that he will involve him in false cases and the present case of the Respondent No-1 & 2 is nothing but the outcome of the said threatening of the Respondent No 1. It is also denied by the appellant that the Respondent No-3 have committed any mischief in collusion with the appellant by delivering the original deed of agreement of the suit flat. The fact is that after having the information of cancellation of deal of suit flat and when the Respondent No - 3 received the entire loan amount form the appellant, the Respondent No-3 has handed over the original deed of agreement to the appellant and the said fact was well within the knowledge of the Respondent No. 1 It is further stated by the appellant that the Ld. District Forum has no Jurisdiction to entertain the application of the petitioner when there is a clause of Arbitration in the said agreement. Apart from that this forum has no jurisdiction to decide the matter of Specific Performance of Contract Act and this Ld. Forum has also no jurisdiction to entrain the claim beyond the limit of Rs. 20,00,000/ apart of that the cause of action was ended when the Respondent No. 1 & 2 came under mutual settlement for the cancellation of the flat. The complaint of the Respondent No -1&2 is based on the pool of lies and they filed the same to hear the appellant for their illegal gain and wrongful loss to the appellant as such the appellant is entitled to get adequate compensation from the Respondent No. 1 & 2 and the complaint of the Respondent No - 1 & 2 is liable to be dismissed with heavy cost.

After hearing both sides afresh and after recording additional evidences in view of amendment of consumer complaint, Ld. Forum delivered the impugned order challenged in the appeal on the grounds that the judgement and order passed by the LD. Forum was bad in law, erroneous and contrary to the factual preparation.

The appeal has been contested by the respondent/complainants.

Ld. Advocate Mr. B. Prasad & others has conducted hearing on behalf of appellants, Ld. advocate M. Paul has represented the respondent No 1 and 2 while Ld. Advocate Mr. P. Sikdar has represented the respondent No. 3 S.B.I

                                                                          Decision with reasons   

Having heard the Ld. Legal counsels of all sides, it is transpired that there is no dispute about the agreement to sale of a Flat between the parties in block -A, measuring 850 S.Q. ft Flat @950 per. Sq. ft marked as flat No 1 comprised within plot No. 418 apporting to khatian No. 490 of Mouses Dhkitaka of P.S. Matigara, Darjeeling and it is undisputed that the complainants/ respondents paid Rs.1,77,650 as initial payment and loan was obtained for the remaining price of the flat from SBI at the instance of appellants and after settlements to the appellants which was mortgaged in lien of loan.

If we go through the documents furnished and relied upon in this case, it is revealed that actually the respondents had negotiated with the appellants about two flats for purchase, one in ‘A ‘Block and the other comprised in ‘B’ block.

After the observation of hon’ble NCDRC in the appeal case, that after a settlement one of the flat was cancelled.

Now the question is actually the programmed of purchasing block ‘A’ flat was cancelled or block ‘B. If block ‘A’ flat is cancelled. The entire case of the respondents will fail.

Ld. Advocate of the respondent(1&2) in their argument mentioned the Complainants/Respondents booked a flat in the First Floor of Block "A" of a building NAMED Sharada Enclave, which was being constructed by the Opposite Party/Appellant No. 1, the Complainants/Respondents paid a sum of Rs. 1,77,650/- as advance and entered into an agreement for sale dated 01.08.2007 with the Opposite Party/Appellant No. 1. The Complainants/Respondents were in need of financial assistance for paying the remaining amount. The Opposite Party/Appellant No.1 insisted the Complainants/Respondents to take financial assistance from the Opposite Party/Appellant No. 2, citing the reason that the Opposite Party/Appellant No.1 has good relation with the officials of the Opposite Party/Appellant No. 2 and as such the Complainants/Respondents would not have to be bothered about the formalities, follow ups and repayment with the bank. Being impressed by the representation of the Opposite Party/Appellant No. 1 the Complainants/Respondents finally opted to take financial assistance from the Opposite Party/Appellant No. 2. Finally, a loan amount of Rs.7,49,000/ was sanctioned in favour of the complainant by the Opposite Party/Appellant No. 2. In order to secure the loan, the original deed of agreement dated 1.08.2007 along with necessary papers were deposited with the Opposite Party/Appellant No. 2. Thereafter the Complainants/Respondents started demanding for the final registration of the flat from the Opposite Party/Appellant No. 1 and meanwhile since the Opposite Party/Appellant No. 1 portrayed the he had very good relations with the Opposite Party/Appellant No. 2 and it was told by him that the Complainants/Respondents need not have to go to the Opposite Party/Appellant No. 2 for repayment of loan & EMI/installments the Complainants/Respondents carried on handing over the installment amounts to the Opposite Party/Appellant No. 1 by cash. The Complainants/Respondents not only paid regular installments but at times even paid more than the regular installments with the intention that the same would be adjusted with the future installments by the Opposite Party/Appellant No. 1 while depositing to the Opposite Party/Appellant No. 2. In the meantime, the Complainants/Respondents requested the Opposite Party/Appellant No. 1 to register the flat in their names. However, all of a sudden on 30.10.2010 the Complainants/Respondents received a letter from the Opposite Party/Appellant No.2 wherefrom the complainant came to know that certain amounts were due. Being worried, the Complainants/Respondents immediately contacted to the Opposite Party/Appellant No. 1 who assured that he will take care of the matter as officials of the Opposite Party/Appellant No. 2 are well known to the Opposite Party/Appellant No. 1. Consequently there were no further demand from the OP No.2. Till this point of time the Opposite Party/Appellant No. 1 had not registered the flat in favour of the Complainants/Respondents. The Complainants/Respondents wrote to the Opposite Party/Appellant No.2 to look into the matter but nothing was done. All the installments were paid to the Opposite Party/Appellant No.1 and the Opposite Party/Appellant No.1 was also requested to execute and register the deed of sale in favour of the Complainants/Respondents. Finding no other alternative, the Complainants/Respondents issued a legal notice dated 15.02.2011 demanding the execution and registration of deed of sale and the said notice was also duly received. In the meantime, the loan of the Complainants/Respondents was cleared through the Opposite Party/Appellant No. 1 by the money that was paid to the Opposite Party/Appellant No. 1 by the Complainants/Respondents.

The Opposite Party/Appellant No. 2 released the original copy of agreement for sale dated 01.08.2007 along with other which deposited documents were by the Complainants/Respondents in the custody of the Opposite Party/Appellant No. 2  and in favour of Opposite Party/Appellant No. 1. The Opposite Party/Appellant No. 2 entered into a loan contract with the Complainants/Respondents and as such it does not have any right to return the secured documents to anyone else. By this act of the Opposite Party/Appellant No.2, the Opposite Party/Appellant No.1 started taking upper hand and deliberately failed and ignored to register the flat in favour of the Complainants/Respondents.

Thus, this case was filed by the Complainants/Respondents with the prayer to direct the Opposite Party/Appellant No. 1 to register the flat in favour of the Complainants/Respondents along with other reliefs.

The Complainants/Respondents immediately brought the truth before the Ld. Forum and placed the money receipts of the flat in Block "B" and adduced evidence to that effect. However, the Complainants/Respondents committed a technical error by not amending the complaint to that effect. As per the order of the Hon'ble National Commission the Complainants/Respondents have brought the fact about the cancellation of the Flat in block "B" and the specific claim over the flat in Block "A" in the amended complaint but the basic argument of the Complainants/Respondents remains the same as that were urged during the initial hearing of the case before the Ld. Forum.

In order dated 02.02.2016, the Hon'ble National Commission has categorically observed that originally the complainant had asked for 2(two) flats. The OP has not preferred any appeal/review/revision against this order and cannot plead to the contrary.

Records will reveal that during the entire trial before the Ld. Forum the Opposite Party/Appellant No.1 has never raised any objection as to the original receipts filed in connection the flat in Block "B" thereby admitting the same.

The Opposite Party/Appellant No.1 remained silent even after receipt of a specific legal notice.

 That Opposite Party/Appellant No.1 alleges that the agreement dated 01.08.2007 was cancelled by an alleged document dated 07.03.2009 whereas the Opposite Party/Appellant No.1 kept silent upon the receipt of legal notice dated 15.02.2011.

Ld. Advocate of the appellant mentions that as per their mutual understandings, the appellant started repayments of the bank loan of the Respondent No - 1 & 2 out of his funds in a hope yhat the Respondent No-1 & 2 will either return the money what-so-ever he is paying to the Respondent No-3 on their behalf or they will surrender the flat. It has further stated by the appellant that on 11-8 -2008 he paid a sum of Rs. 32,000/- and on 19-12-2008 a sum of Rs. 32,5000/-. After some time the Respondent No-1 & 2 have decided to cancel the flat of Block A and on 7-3-2009 the Respondent No - 1 visited to the office of the appellant and has finally declared to cancel the flat and an amicable settlement took place in between them that the appellant had to return the entire advance money amounting to Rs 1,77,650/- to the Respondent No - 1 & 2 in addition of an excess money amounting to Rs - 10,000/- and the appellant had to pay the entire loan amount of the Respondent No - 1 & 2, for which the appellant agreed and on the same day the Respondent. No - 1 received a sum of Rs. 50,000/- on account of cancellation of flat and he signed the acknowledgement for cancellation of flat of Block-A. Thereafter on 23-6-2009 the Respondent No-1 again received a sum of Rs. 1,27,000/- and on 28-8-2009 he again received a sum of Rs. 10,000/- as his full and final return of advance money and an excess amount of Rs. 10,000/-in respect of alleged money receipt dated 14-7-2007. The appellant has categorically stated that thus money receipt bearing No-1 19/0607 for the sum of Rs. 50,000/- has already been issued by his office on 23-5-2007 causing the same serial number cannot be put for the same year and it is further stated that the Respondent No 1 & 2 managed to collect his blank singed money receipt in collusion with his any staff or has collected the blank money receipt from his office. Though the alleged money receipt was prepared in the name of Umarayati dibi Prasad but the same has been signed by one Dasrath Prasad in the column of signature of the purchaser. In respect of alleged money receipt dated 28-7-2007 for the sum of Rs. 30,000/-, the appellant denied to receive any cheque for the sum of Rs. 30,000/- as stated in the said money receipt and the same has also been prepared in the name of Umarayati dibi Prasad and signed by Dasrath Prasad and the appellant has denied his signature and writing of averments. In respect of money receipt dated 30-12-2007 for the sum of Rs. 25,000/- and dated 6-3 2008 for the sum of Rs. 21,000/- has also been denied by the appellant and also denied to receive any cheque for the Rs. 25,000/- and 21.000/- as stated in the alleged money receipt and also denied his signature and writing of averments. In respect of alleged money receipt dated 18-6-2008 for the sum of Rs. 10,000/- it has been denied by the appellant and what purpose the said money receipt was prepared is also not cleared from the averments of the said money receipt and the appellant has also denied his signature and writing of averments of the alleged money receipt. In respect of money receipt dated 19-6-2008 for the sum of Rs. 4,000/- the appellant has categorically denied his signature and writing and has disputed the same on the pleading that the consideration price of any booked flat includes every fitting causing there is no need to issue any separate money receipt on the head of any fitting like gate, grill etc. In respect of money receipt for the sum of Rs. 13,000/- the appellant has denied his signature and writing of the averments and he disputed the quantum of amount of the alleged money receipt which is written as 13,000/- in figure and thirty thousand in words and from the averments of the same is not clear for what purpose the alleged money receipt has been prepared.

Appellant has further stated the Respondent No- 1 & 2 have neither booked any flat of Block-B nor have paid any booking money against the flat of Block-B. So question of cancelation of Flat of Block-B and return of money does not arise and he further stated that he never entered into any agreement with the Respondent No-1 & 2 to deal with any flat of Block -B. The appellant has further stated that he entered into agreement with the Respondent No - 1 & 2 for the flat of Block-A which was subsequently cancelled and the Respondent No - 1 & 2 have acknowledge to receive the advance money against the cancellation of deal of the said flat of Block-A.

The appellant further stated that though he received a sum of Rs. 8,27,650/- but he had to return a sum of Rs. 11,46,1000/- for clearing the flat. He further stated that as the flat is cancelled by the Respondent No -1 & 2 and as the appellant has returned the entire advance money to the Respondent No - 1 along with their loan money, against the cancellation of flat of Block-A, the Respondent No - 1 & 2 are not entitle to get any relief from the Ld. Forum.

That the Ld. Forum should have consider that the story of another agreement for purchasing another flat raised by the respondent No. 1 and 2 in their evidence are all together false and frivolous just to overcome the situation of the complaint case. The complainant has not incorporated the said fact in the complaint of their first time and they by amendment in the first complaint have deleted the fact of the flat of Block B to make sure the transaction of Flat of Block A and have brought the new fact before the Hon’ble National Commission in their revisional application.

   After careful scrutinization of money receipts produced by the complainant/respondents, it is revealed that on behalf of sarada enclave, the appellant No.1 received cash Rs. 50,000/- on 23/05/2007, Rs, 77,650/- on 21.05.2017 and Rs. 50,000/- on 19.05.2007 from respondent No.1 total- 1,77,650/- and SBI sanctioned loan for payment of rest amount (7,49,000/-) of the consideration money which was credited in the A/C of appellant directly from the bank.

The letter of acknowledgement dated 07.03.2009 was duly signed by respondent No. 1 & 2 where in they have agreed to cancel the said agreement which was mortgaged to the bank and admitted the outstanding loan amount was realized by bank from the appellants and released the mortgaged documents including the agreement to sale dated 01.08.2007.

There is no document on the part of the respondent to show that beside the initial payment of RS. 1,77,600/- the rest amount of considering money of the flat of block ‘A’ was ever being paid by the complainants/respondents.

The respondents claim that they have liquidated the loan amount to the bank from their own fund, but no documents is there to support their contention while they have admitted that the Ops always deposited the monthly installments of loan on behalf of respondents.

According to agreements of respondent No. 3(SBI) on 01/11/2010 the appellant has cleared the entire outstanding amount of the said loan of respondent No. 1 and 2, by virtue of cancellation document dated 07/03/2009 executed by the respondents and the respondent bank after receiving the outstanding amounts has returned back the original document of agreement to sale deed dated 01/08/2007 to the appellants.

It is crystal clear now that agreement to sale dated 01/08/2007 was meant for the flat block ‘Ä’ and not block ‘B’.

No solid evidence is there that there was also an agreement of purchase flat of block ‘B’. An initial talk might have happen.

It is also not proved by any cogent evidence on the part of the appellant that they have return back the earnest money Rs. 1,77,650/- to the respondents.

So there is ground to presume that after some dispute, misunderstanding and differences of mind between the parties to the case, the process of purchasing flat of block ‘A’ by the respondents was abandoned and the appellants did not return back the earnest money as respondents where not willing to get registration of the flat by paying the rest consideration money.

By amendment, the respondents took the place that there was agreement and negotiation ofpurchasing two flats, while the agreement to sale was confined to flat no. 1 of block ‘A’.No. scrap of paper is there to hold that agreement was also there to purchase second flat of block ‘B’.

If there was no such agreements, the question of cancellation of agreement of the flat block ‘B’ does not arise.

There fore, there is no hesitation to hold that inspite of initial talk of purchasing two flats between the parties, their agreement was confined to only one flat in block ‘A’ and out of such agreement the appellants  all together received Rs. 1,77,600/- from the respondents. The rest amount of purchase money was funded by SBI, Kurseong Branch, as loan and the said loan amount including interest on loan ultimately returned to the bank by the appellants after cancellation of agreement on the part of the respondents. The appellants did not return back the booking money Rs. 1,77,650/-. So this dispute and the respondents are well entitled to get refund of the said amount from the appellants.

Ld. Forum was confused at the time of adjudication of the dispute and relied upon the statement of the respondent (complainants) about the talk of agreement of second flat comprised in block ‘B’ and cancellation of such purchase of block ‘B’ flat.

So the order of the Ld. Forum appears to be erroneous, defective and based on misappreciation  of factual aspects.

Thus the appeal deserves to be allowed with suitable modification of final order of Ld. Forum dated 30/06/2016.

Hence, it is ordered

That the appeal be and the same is partly allowed as contest without cost.

The final order of the Ld. DCDRF. Siliguri, dated 30/06/2016 in CC N. 51/05/2011 stands set aside subject to modification that the complainants/ respondents are only entitled to get Rs. 1,77,650/- from the Ops/appellants which was received by the appellants from the respondent No. 1 and 2 at the time of agreement to sale on 01/08/2007 as booking money which was actually paid on 19/05/2007, 21/05/2007 and 23/05/2007 by three money receipts.

So the appellants (OP NO. 1 and 2) are directed to return back Rs. 1,77,650/- to the complainant/respondent along with interest @6% P.A. since 23/05/2007  within two months from this day, failing which additional interest @ 7% P.A will carry for non-compliance of the order.

Let a copy of this order be supplied to the parties free of cost and the same to be communicated to the Ld. DCDRF, Siliguri.