DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION 

NORTH 24 PGS., BARASAT.

M.A. 26 / 2020

Arising Out in C.C. NO. 223/2019

Date of Filing                                                                                                     Date of Disposal

  14.02.2020                                                                                                                10.03.2022

Complainant/s :-                 1. Dr. Saurav Das, S/o Late Jadab Chandra Das.

                                                2. Smt. Amrita Das, W/o Dr. Saurav Das, both are

residing at Malancha Abasan, Flat – A, 4^th Floor, 27, Natagarh Main Road, Sodepur, P.O. – Natagarh, P.S. – Ghola, Kolkata – 700113, District 24 Parganas (North).

=Vs=

O.P/s :-                                  Sri Sandeep Banerjee, Proprietor of M/S. Sombit Construction, Residing at Swapnaneel Apartment, 1^st Floor, 9, Indrolok, P.O. Sodepur, Kolkata – 700 110

P R E S E N T           :-  Shri Debasis Mukhopadhyay………..…..President.

                                    :- Smt. Monisha Shaw ………………… Member.

                                    :- Sri Susmit rishikesh Bhattachariya…..Member

       Judgment / Final Order

            The O.P.  by filing this M.A. case challenged the maintainability of the complaint. The O.P. petitioner stated that the complaint case was that the Complainants decided to purchase the flat at total consideration of Rs. 7,64,000/- and paid advance. Since the O.P. did not start the project they decided to withdraw their decision to purchase the flat and garage and asked for refund of money from the O.P. and when the O.P. did not refund, the Complainants lodged this case. O.P. stated that there was no written or oral contract and if for argument’s sake it is considered that there was an oral contract for sale it will be revealed that the Complainants decided to withdraw their decision and demanded refund of their money. Therefore, the Complainants cannot be termed as consumer under the Consumer Protection Act, 1986 the moment the Complainants cancelled their decision to purchase the flat and asked for refund and then automatically the contract was determined and the Complainants can no longer be a consumer. Hence, the O.P. petitioner contended that this complaint case is not at all maintainable and should be dismissed.

            The Complainant by filing written objection stated that this M.A. application is misleading, misconceived and should be rejected. The Complainant stated that they have already paid Rs. 7,65,000/- in 2013 and thereafter, because of mutation the O.P. petitioner agreed to pay Rs. 7,65,000/- with interest and subsequently a few installments have been paid by the O.P. but not entire amount with interest. Therefore, there is no question of dismissal of the case on the ground of maintainability.

            Considering the facts and circumstances of the case we find that there is a dispute regarding payment of interest. The Complainant while writing to the O.P.  for cancellation of flat on 20/08/2016 clearly stated that due to unavoidable circumstances he wanted to cancel the booking and wanting the money refund with bank interest. Admittedly no such bank interest was paid by the O.P. to the Complainant while refunding the amount. Thus, there is a dispute regarding the amount of refund and it is a mixed question of law and fact which cannot be determined as a preliminary issue of maintainability since it is not a pure question of law.

            Contd. To Page No. 2 . . . ./-

: :  2  : :

        M.A. 26 / 2020

Arising Out in C.C. NO. 223/2019

The Ld. Advocate for the O.P. petitioner by citing one decision of the N.C.D.R.C. submitted that once a Complainant cancelled his agreement of flat and was paid refund he cannot be termed as consumer any longer but I find from the decision that the word “unconditional” was used in the decision and in this case the Complainant cancelled and a refund was conditioned with interest. Therefore, the cited decision is not applicable. Once the consumer dispute arises between the parties then it remains a consumer dispute until the full obligation out of the transaction is discharged. Therefore, we find no merit in this M.A. case to challenge the maintainability of the complaint case and the M.A. case is liable to be rejected.

Hence,

It is ordered,

            That the M.A. being No. 26 /2020 is rejected on contest.

            To__________________ for filing evidence of the Complainant.

             Let plain copy of this order be given to the parties free of cost.      

Dictated and corrected by me.

President

Member                                                Member                                          President