Date of filing: 27/09/2021

Judgment date: 07/06/2023

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by Sri Basudeb Mondal under section 35 of the Consumer Protection Act, 2019 against opposite parties (referred as OPs hereinafter) namely (1) Sri Mrinal Majhi and (2) M/s. Mrinal Construction  alleging deficiency in service and unfair trade practice on the part of the OPs.

Case of the complainant in short is that OP 1 is the proprietor of OP 2 firm. Complainant had entered into an agreement for sale with the OPs being the developer to purchase a flat by agreement dated 27/03/2027 measuring 550 sq. ft. super built up area at a consideration price of Rs. 13,50,000/-. It was agreed by the OPs as per the said agreement for sale that the possession of the flat shall be handed over described in the Schedule ‘B’ of the said agreement within 12 months from the date of execution of the agreement. Complainant paid a total sum of Rs. 5,50,000/- out of consideration price of Rs. 13,50,000/-. But opposite parties failed to construct the property and consequently in order to refund the sum paid by the complainant, issued four cheques. OP had promised to return Rs. 6,00,000/- in place of Rs. 5,50,000/- towards mental pain and agony suffered by the complainant. But complainant had presented only 1^st cheque being no. 021632 dated 28/10/2020 but did not present other three cheques in order to encash as the opposite parties had decided to pay the balance amount in cash to the complainant. But in spite of several request the rest amount has not been paid by the OPs. Rs. 1,50,000/- only has been paid through the only cheque encashed by the complainant. So the present complaint has been filed praying for directing the OPs to refund  the amount of Rs. 4,00,000/-, to pay Rs. 1,00,000/- as compensation and litigation cost of Rs. 50,000/-.

On perusal of the record it appears, as the OPs did not turn up on service of notice, the case has been heard exparte.

So the only point requires determination is whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASONS

In order  to substantiate his claim complainant has filed the agreement for sale entered into between the parties on March, 2017 wherefrom it appears OP firm being represented by proprietor Mrinal Majhi agreed to sell the flat described in the schedule ‘B’ of the agreement as developer and also as constituted attorney of the owners named therein the agreement. Complainant has also filed the money receipt showing the part payment towards consideration price. From the agreement it appears that the complainant had already paid Rs. 2,00,000/- and he has also filed the three money receipts showing further payment of Rs. 1,00,000/-, Rs. 20,000/- and Rs. 2,30,000/- respectively. So he has paid the total sum of Rs. 5,50,000/-. Complainant has also filed the original three cheques of  Rs. 1,50,000/- each dated 28/11/2020, 28/12/2020 and 2801/2021 appears to have been issued by OP 1 the proprietor of OP 2 firm. Said original three cheques supports the claim of the complainant that they were not presented for encashment on being asked by the OPs. A written undertaking is also filed dated 22/01/2021 appears to have been written by OP 1 that he shall pay the amount in cash for which he had issued the cheques. According to the complainant barring Rs. 1,50,000/-, OPs have neither handed over the flat nor have refunded the rest amount. Since before this commission there is absolutely no contrary material to counter the claim of the complainant, complainant is entitled to refund of the sum of Rs. 4,00,000/- along with compensation in the form of interest.

Hence,

            ORDERED

CC/461/2021 is allowed exparte. OPs are directed to refund Rs. 4,00,000/- along with interest on the said sum @ 8% p.a. from the date of last payment i.e. 22/10/2017 to till this date, within  two months from the date of communication of this order. OPs are further directed to pay Rs. 8,000/- as litigation cost within the aforesaid period of two months. In default of payment by the OPs, entire sum shall carry interest @ 8% p.a. till realization.