Date of filing: 21/09/2020
Judgment date: 26/06/2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by Smt. Sumita Goswami under section 35 of the Consumer Protection Act, 2019 against opposite parties (referred as OPs hereinafter) namely (1) Sri Samar Biswas (2) Sri Samprit Chakraborty (3) Sri Ajit Chakraborty (4) Sri Biswajit Chakraborty and (5) Mun Mun Chakraborty @ Sabnam Begam alleging deficiency in service on the part of the OPs.
Case of the complainant in short is that OP Nos. 2 to 5 being owners of the property entered into a development agreement dated 31/10/2012 with the OP 1 to construct a G+3 storied building upon the land described in the schedule of the said agreement. A power of attorney was also executed by OP 2 to 5 on 31/10/2012 in favour of OP 1. Subsequently OP 1 agreed to sell a flat and car parking space to the complainant and they entered into an agreement for sale on 28/02/2015. Complainant paid a total sum of Rs. 21,00,000/- out of the settled consideration price of Rs. 25,87,500/-. Complainant has also paid an additional amount of Rs. 1,50,000/- to the OP 1 for preparing and registration of the draft deed of conveyance including stamp duty. Despite several persuasion by the complainant, OP 1 failed and neglected to complete the transaction and thus in the month of March, 2019 OP 1 refused to sell the flat and car parking space informing the complainant that he would return the amount of Rs. 21,00,000/- paid by her and also Rs. 1,50,000/-. The agreement was also executed in this regard dated 14/03/2019 and on the said date a sum of Rs. 6,85,000/- out of Rs. 21,00,000/- was paid to the complainant by OP 1. The remaining Rs. 14,00,000/- was to be paid within one year from the date of said agreement. But OP failed to pay the said amount and ultimately gave a declaration in writing on 12/03/2020 that he would pay a sum of Rs. 10,50,000/- within March, 2020 and in case he fails to repay the whole amount than he will pay a sum of Rs. 10,000/- per month as penalty. Six cheques were issued by the OP 1 but they were returned by bank on the ground of fund insufficient. Thus the present complaint has been filed by the complainant prying to direct to OP to execute and register the deed of conveyance in favour of the complainant as per agreement for sale dated 28/02/2015, to direct the opposite party to hand over the keys of the flat, to provide completion certificate, to pay Rs. 5,00,000/- as compensation and Rs. 50,000/- towards cost of the proceeding in alternatively to direct the OP 1 to pay sum of Rs. 10,50,000/- together with interest accrued thereon.
OP 1 has contested the case by filing the written version denying and disputing the allegation contending inter-alia that complainant being the purchaser paid a sum of Rs. 21,00,000/-. But on 08/05/2017 vide a letter she cancelled the said agreement for sale stating that she was unable to take the said flat due to unforeseen financial constrains. It is further contended that the complainant on different dates by way of cash as well as account payee cheque received back her total sum of Rs. 21,00,000/-. So the OP 1 prayed for dismissal of the case.
On perusal of the record it appears that on service of notice OP 2 to 5 did not take any step and thus the case has been heard exparte against them.
During the course of the evidence complainant filed affidavit in chief but no step was taken by OP 1 since after filing of the writer version. So ultimately the case was fixed for argument. BNA has been filed by the complainant but OP 1 did not participate even during the argument
Thus following points requires determination:-
- Whether there has been any deficiency in service on the part of the OPs.
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASON
Both the points are taken up for a comprehensive discussions.
In order to substantiate her claim, complainant has filed agreement for sale dated 28.02.2015 entered into between the parties, money receipts showing payment of Rs. 21,00,000/-, six cheques along with banks’ cheque return memo, an agreement dated 14.03.2019 and a declaration by the OP dated 21.11.2019 undertaking thereby to return Rs. 10,50,000/- by January 2020.
On perusal of the written version filed by the OP 1 the developer, it appears execution of agreement for sale dated 28.02.2015 as well as agreement dated 14.03.2019 has not been disputed and denied by him. He has not disputed that out of total consideration price of Rs. 25,87,500/- towards purchase of flat and car parking space as per agreement dated 28.02.2015, complainant had paid total sum of Rs. 21,00,000/-. However according to him, he has already returned the entire sum. But in support of his said claim, OP 1 has not filed any document. On the contrary as per agreement dated 14.03.2019, OP 1 agreed to return Rs. 21,00,000/- paid by the complainant and paid Rs. 6,85,000/- to the complainant on the date of the execution of the said agreement dated 14.03.2017 and promised to return remaining Rs. 14,00,000/- within one year. It also appears that OP 1 further undertook that he would not transfer or sell the flat to any third party unless the cheques given by him to the complainant is cleared.
Complainant has filed those un-cleared cheques which are six in number amounting to Rs. 50,000/- dated 21.12.2019, Rs. 1,70,000/- dated 10.12.2019, three cheques dated 20.12.2019 two of Rs. 2,00,000/- each and one for Rs. 1,00,000/- respectively and further one cheque dated 04.12.2020 of Rs. 2,00,000/-. These cheques were returned by the bank on the ground of insufficient fund. The declaration dated 21.11.2019 by the OP No. 1 indicates that he had promised to pay Rs. 10,50,000/- by January 2020 and had assured that if he failed to pay the same than he was liable to pay Rs. 10,000/- per month as penalty.
The aforesaid six cheques appears to have been issued after execution of the said declaration dated 21.11.2019. But apparently they were returned unpaid. Since OP No. 1 has not filed any document to support his claim that he has repaid the entire sum as per declaration dated 21.11.2019, he is liable to refund the same. However it may be pertinent to point out that since complainant has claimed refund of Rs. 10,50,000/- only, it indicates that she has already received Rs. 11,00,000/- out of Rs. 21,00,000/- paid by her towards consideration price. It is also evident that all along complainant emphasized for refund of sum. So in such a situation, we find no justification to pass any direction as to handing over of possession and execution and registration of the deed of conveyance. Though she is entitled to compensation in the form of interest for harassment and also the litigation cost.
Hence
ORDERED
CC/202/2020 is allowed on contest against OP No. 1 and dismissed exparte against OP 2 to 5. OP No. 1 is directed to refund Rs. 10,50,000/- to the complainant along with interest on the said sum @ 10% p.a. from 21.11.2019 to till this date within 60 days from the date of passing of this order. He is further directed to pay Rs. 10,000/- as litigation cost within the aforesaid period of 60 days. In default of payment entire sum shall carry interest @ 10% p.a. till realization.
