J U D G E M E N T
The door of this Forum has been knocked by the Complainant, for redressal arising out of the consumer dispute as per the Consumer Protection Act, 1986.
In diminutive, the case of the Complaint, is that, the Complainant had agreed to purchase the flat being No. ‘B’ on the 1st floor, measuring of 710 sq. ft. specifically described in the ‘Schedule’ of the complaint, for total consideration amount of Rs. 14,20,000/- only. Accordingly the Complainant had paid a sum of Rs. 6,92,250/- only by cheques to the Opposite Party on issuing the ‘Money Receipt’.
The Opposite Party assured to hand over the said flat within one month from the date of first received of part consideration amount from him. But after expiry of the stipulated time when the Complainant requested the Opposite Party to execute a ‘Sale Deed’ the Opposite Party did not pay any heed to him for which the Opposite Party is bound to do. The Opposite Party neither handed over the possession of the said flat to the Complainant nor they ready to execute the ‘Sale Deed’ in favour of the Complainant in spite of receiving the part consideration amount, what amounts to deficiency and negligent manner of service on the part of the Opposite Party and by such indifferent attitude of the Opposite Part caused mental agony and harassment to the Complainant for which he asked for compensation along with redressal as prayed for.
Resisting the Complaint, the Opposite Party filed Written Version for denying the contentions and all material allegations made by the complainant in the Petition of Complaint and stating inter alia, that the Complainant has no cause of action to file the instant case, is not maintainable and is barred by limitation.
The case, as a whole, stated by the Opposite Party, in crisp, is that, had strictly denied the total case of the complaint and stated that the Complainant approached the Opposite Party to invest some money in his construction business to gain profit out of the said business upto the limit of Rs. 30,00,000/- only to be paid time to time and the Opposite Party had agreed to receive the money as loan on payment of simple bank interest. But when the Complainant requested the Opposite Part to provide a flat within the Hoogly – Chinsurah Municipality at a subsidized rate to which the Opposite Party had also agreed and accepted the money as aforesaid loan from the Complainant.
But the Complainant within a very short period asked the Opposite Party to refund the money and the Opposite Party had agreed to refund the same with simple bank interest in 2/3 installments. But in the mean time the Complainant had filed the instance case.
Although the Opposite Party is always ready and willing to refund the entire amount paid by the Complainant with simple bank interest in 2/3 installments to the Complainant. Thus the Opposite Party had denied any negligence or/ and deficiency in rendering service on their part and the Complainant is not entitled to get any relief as prayed for. Hence, the Opposite Party prayed for dismissal of this case.
Points for Determination
1. Is the complaint maintainable under the C. P. Act ?
2. Was there any negligence or deficiency in service
on the part of the O.Ps ?
3. Is the complainant entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for the sake of convenience and brevity.
The main dispute between the Complainant and the Opposite Party is that in spite of part payment to the Opposite Party whether the Complainant is entitled to get relief as prayed for or not.
We have carefully considered and scrutinized the submission made before us by the Ld. Advocate for the Complainant and also the Ld. Advocate for the Opposite Party and also critically perused all the material documents on record.
On overall evaluation of the argument advanced by the Ld. Advocates of both the parties, and on critical appreciation of the case record, it is clearly evident that no ‘Agreement for Sale’ was executed by and between the Complainant and the Opposite Party for purchasing any flat.
It is revealed from the photocopies of the documents filed by the Complainant that two ‘Money Receipt’ was filed from which it is evident that the Complainant had paid a sum of Rs. 6,92,000/- only in total (one of Rs. 51,00/- only and another of Rs. 6,41,000/- only) by cheques which was received by the Opposite Party and the said fact of receiving the money is not denied by the Opposite Party at all.
Moreover the record reveals that the Opposite Party admitted the fact to receive the said amount from the Complainant, but only stated that the said amount was actually received as loan and agreed to refund the same with simple bank interest.
But the fact remains that no formal ‘Agreement for Sale’ was executed and the photocopies of two ‘Money Receipt’ only shows that the Opposite Party only received the said money. Nowhere in the said ‘Money Receipt’ it is shown or evident that the said amount was received against purchase or sale of any residential flat.
Manifestly the record reveals that at the time of the hearing argument the Opposite Party stated that the disputed flat which was mentioned in the ‘Schedule’ of the Complaint was actually agreed to sell to another third party and to prove the same the Opposite Party submitted an ‘Agreement for Sale’ dated 05.03.2012. Furthermore the Opposite Party specifically stated that he had previously agreed and still ready and willing to refund the entire paid amount to the Complainant with simple bank interest.
So, the Complainant has only proved that he had paid the said alleged amount of Rs. 6,92,000/- only to the Opposite party, but had miserably failed to prove that the said amount was paid to purchase a residential flat. Thus the Complainant is only entitled to get the refund of the said paid amount from the Opposite Party. But the fact remains that the Opposite Party is liable to pay the interest over the said amount not at the rate of simple bank interest but much more than that as because it is the version of the Opposite Party that the Complainant had approached the Opposite Party to invest some money in his construction business to gain profit out of the said business. So if it be the real fact then the Complainant had invested the said amount for more interest than bank interest and the Opposite party is liable to pay that more interest and Complainant is entitled to get the same.
Thus, in view of the above findings we are inclined to hold that in the present situation the Complainant is entitled to get only the refund of the said amount of Rs. 6,92,000/- only, along with an interest of 10% p.a. from the date of actual payment till its realization can only be awarded in favour of the Complainant.
Therefore, in light of the above analysis, we are inclined to hold that the Complainant has successfully proved his case and is entitled to get the relief as prayed for and consequently the points for determination are decided in affirmative.
In short, the Complainant deserves success.
In the result, we proceed to pass
O R D E R
That the case be and the same is allowed on contest against the Opposite Party with cost of Rs. 3,000/- only payable by the Opposite Party within one month from the date of this ‘Order’.
That the Opposite Party is directed to refund the entire paid amount of Rs. 6,92,000/- only, along with interest of 10% p.a. from the date of actual payment of the said amount i.e. from 26.03.2013 till its realization, to the Complainant, within one month from the date of this ‘Order’.
In the event of non compliance of any portion of the order by the O.P. within a period of one month from the date of this order, the O.P. shall have to pay a sum of Rs. 200/- per day, from the date of this order till full satisfaction of the decree, and such amount shall be paid and shall be deposited by both the O.P. to the State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
