Date of Filing : 08 May, 2018.
Date of Judgement : 26 November, 2024.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
This case arises when Sri Shibnath Mitra, hereinafter called as the Complainant, filed a complaint under Section 12 of the Consumer Protection Act, 1986 (the Act) against Sri Shibsankar Santra, hereinafter called as the Opposite Party or OP, alleging deficiency in service on the part of the OP for non-payment of balance consideration paid by him to the OP.
Facts as emerged from the complaint petition are that the complainant entered into an Agreement for Sale on 29/05/2017 with the OP intending to purchase a 650 sq ft flat on the 3rd floor of the building at premises no. 51+52, Biseswar Banerjee Lane, P.S.–Bantra, HMC Ward No.–23, Howrah–711101 for a total consideration of ₹13,00,000/-. Complainant paid ₹5,00,000/- before execution of this sale agreement. The OP verbally committed to the complainant that he would provide the “As Made Plan” of the construction in due course. But the OP failed to provide the expected “As Made Plan” to the complainant for which the complainant demanded refund of the money of ₹5,00,000/- already paid to the OP. As per mutual consent the OP returned ₹3,00,000/- to the complainant through cheque. The OP further issued a cheque of ₹2,00,000/- which was allegedly bounced and subsequently the complainant returned this cheque to the OP. Thereafter, the OP paid ₹70,000/- to the complainant after several pursuance on different dates through cash and cheque. But the OP did not return the balance amount of ₹1,30,000/- to the complainant. On 30/03/2018 complainant sent a legal notice to the OP through his Ld. Lawyer demanding refund of the due amount together with interest, but the OP did not respond to this legal notice for which the complainant filed the instant complaint before the erstwhile Forum, now the Commission, praying to direct the OP to return the due amount, to pay compensation for mental harassment, litigation cost and to pass such other order/orders as this Forum/Commission may deem fit and proper for ends of justice.
Complainant filed copies of (i) the Agreement for Sale executed on 29/05/2017, (ii) a cheque issued by the OP of ₹2,00,000/- having Cheque No. 692522 of IDBI Bank, dated 29/09/2017 and (iii) an unauthenticated and undated cheque return details as annexure to the complaint petition.
Notice was served upon the OP, after admission, to appear and contest the case by filing his written version. OP appeared through his Ld. Lawyer and filed his written version. Then the complainant filed his Evidence on Affidavit in the form of Affidavit-In Reply and also filed Brief Notes on Argument. OP then filed his Evidence. Questionnaires and replies have been filed by both the parties. B. N. A. has been filed by the OP. But in the argument stage OP repeatedly failed to attend argument for which show cause notice was issued to the OP and as the OP failed to file the show cause reply, ex parte argument was heard in full from the complainant side.
We have now come to the position to deliver the Final Order in this case. We have to decide:
(a) whether the complainant is a consumer under the OP in accordance with the C. P. Act, 1986;
(b) whether the OP is deficient in rendering proper service to the complainants;
and (c) whether the complainant is entitled to get relief(s) as prayed for.
Let us take these points together in our discussion to avoid repetition.
DECISION WITH REASONS
Factual matrix emerged from the complaint and the annexed documents:
It is the contention of the complainant that being desirous to purchase a residential flat he entered into an Agreement for Sale with the OP on 29/05/2017 intending to purchase a 650 sq ft flat on the 3rd floor for a total consideration of ₹13,00,000/- at the premises at 51+52, Biseswar Banerjee Lane, P.S.–Bantra, Howrah–711101. He paid ₹5,00,000/- out of total consideration. But the OP failed to provide “As Made Plan’ for which the complainant demanded return back the paid amount. The OP paid back ₹3,70,000/- to the complainant on different dates but did not pay the rest amount for which the complainant filed this instant complaint.
The complainant brought forward all the statements of his complaint petition in his evidence.
Rival Submissions:
In his written version OP denied and disputed the allegations put forward in the complaint petition and pledged for non-maintainability. He stated in his written version that ‘As Made Plan’ had been submitted to the concerned authority for sanction and it was still pending for sanction. He admitted that he had received ₹5,00,000/- from the complainant and as the complainant was persistently demanding return of the paid up amount he already refunded ₹3,70,000/- and expressed his willingness to return the balance amount of ₹1,30.000/- to the complainant in easy instalments and without any interest imposing on it. He also stated that the fact of bouncing the cheque was partly true but it was not an act of forgery and fraudulence from his part.
The OP has put the statements of his written version in his evidence.
Findings:
When we scrutinize and scan the complaint petition and documents annexed therein we find that the complainant entered into an agreement for sale on 29/05/2017 with (1) Sri Partha Mallick and (2) Sri Dilip Kumar Mallick, both were resident of 56, Hriday Krishna Banerjee Lane, P.S. – Bantra, Howrah, as Owners/First Party and M/s. Sneha Construction, represented by its sole proprietor Sri Shibsankar Santra as the Developer/Confirming Party/Third Part. The Complainant has been stated in this agreement as the Purchaser/ Second Part. In this agreement for sale it is stated that the owners and the developer entered into a development agreement which was duly registered on 23/04/2015 and also executed a registered Power of Attorney on the same date in order to construct a multi-storied building at the owners premises at 51+52, Biseswar Banerjee Lane, P.S.–Bantra, Howrah comprising of a bastu land of area 1 Cottah 9 Chittack 42 sq ft area with 300 sq ft R. T. shed. Thereafter the developer constructed a multi-storied building at the said premises and the complainant approached to the developer to purchase a flat of 650 sq. ft. flat for a total consideration of ₹13,00,000/- and the complainant/purchaser paid ₹5,00,000/-. Throughout this sale agreement it is stated that the subject flat is on the 4th floor, but in the second schedule this flat is stated to be on the 3rd floor. It is also stated in this agreement that the purchaser/complainant approached to the developer to purchase the subject flat and in another paragraph it is stated that the purchaser/complainant approached to the First Party, i.e. the owners to purchase this flat. In this agreement it is also stated that the purchaser had paid ₹5,00,000/- to the First Party and the balance consideration would be paid to them by the purchaser within six months from the date of this agreement. But the Memo of Consideration annexed in Page – 10 has been signed by the OP stating that he received ₹5,00,000/- from the purchaser/complainant through cheque No. 000002 of Indian Overseas Bank, dated 24/05/2017. None of the parties has annexed the copy of this cheque or account statement to prove the transaction. But this Memo of Consideration itself assures us that the OP had received this amount.
It is stated in the complainant petition that a verbal commitment had been made by the OP that he would provide the purchaser the As Made Plan duly sanctioned by the concerned authority. As the OP failed to provide such sanctioned plan, then the complainant demanded refund of the paid amount and thereafter the OP refunded ₹3,70,000/-. The OP admitted this fact through his written version and evidence. Moreover, the OP assured of returning the balance ₹1,30,000/- by instalments without interest thereon, but has not paid any amount thereafter. This indicates that the complainant is a ‘consumer’ as is defined under Section 2(1)(d) of the Consumer Protection Act, 1986 and there is a deficiency in ‘service’, as per Section 2(1)(o) of the said Act, occurred from the part of the OP . The OP has failed to provide the promised building plan for which an intending purchase has every right to demand refund of the invested money, whether the flat has been completed or not. As the OP failed to provide the promised plan and even failed to refund the entire amount paid by the intending purchaser/complainant, so the OP is deficient in rendering service to the purchaser/complainant.
The above discussion leads us to conclude that the complainant is a consumer who is entitled to get back his money and the OP is liable to refund it. Complainant demanded compensation and litigation cost. We are of the view that a 9% interest on ₹1,30,000/- from the date of filing this complaint before this Forum/Commission will be enough for compensation and a litigation cost of ₹5,000/- to be paid by the OP.
It is, therefore,
ORDERED
that the Complaint Case bearing No. CC/154/2018 be and the same is allowed on contest against the Opposite Party and with cost.
The Opposite Party is directed to refund ₹1,30,000/- along an interest at the rate of 9% per annum from the date of filing this complaint, i. e. from 08/05/2018 till the date of this order within 45 days from the date of this order. The Opposite Party is also directed to pay ₹5,000/- to the complainant as litigation cost within this time period.
If the Opposite Party fails to comply with this order the complainant will have the liberty to take steps under the law.
Both the parties have the liberty to get a free copy of this order.
Dictated and corrected by me
Member.
