Date of Hearing the 29th Day of September, 2015
Date of Judgment Friday, the 9th Day of October, 2015
JUDGMENT
The instant appeal u/s. 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the instance of Opposite Party No.1/Developer to impeach the Judgment/Final Order dated 25.04.2014 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (In short, Ld. DCDRF) in Consumer Complaint No.451 of 2013,
The Respondent No.1 herein being Complainant initiated the Consumer Complaint u/s. 12 of the Act alleging that in the year 2009 he has paid an amount of Rs.1,50,000/- to Opposite Party No.1 to purchase a flat measuring about 841 sq. ft. lying and situated at premises No. 37, Banerjee Para Road, P.S. Parnashee, Kolkata-700060 at a total consideration amount of Rs.15,00,000/-. In the year 2012 when the construction of the building was about to complete he approached Opposite Party No.1/Appellant to execute and register the Deed of Conveyance in respect of the flat in question after receipt of balance consideration amount but it was remain unheeded. Hence, the Consumer Complaint for deficiency of service.
Opposite Party Nos.1&2 by filing separate Written Version disputed the claim. The Opposite Party No.1 has categorically stated that he did not enter into any agreement with the Complainant and the amount of Rs.1,50,000/- was taken by him from Respondent No.1 was a personal loan.
Considering the materials on record including the evidence and having heard the Ld. Advocates appearing for the respective parties, Ld, DCDRF by the impugned order allowed the Complaint Case with a cost of Rs,5,000/- directing the Opposite Party No.1 to pay back the amount of Rs.1,50,000/- together with interest thereon at the rate of 9 per cent per annum and also make payment of compensation of Rs.5,00,000/- for mental agony and harassment which prompted the Opposite Party No.1 to prefer this appeal.
The point arises for consideration in the appeal as to whether or not the Ld. DCDRF was justified or not in passing the order impugned including imposition of compensation of Rs.5,00,000/-.
Upon hearing the Ld. Advocates for the respective parties and on going through the materials on record we find that the Opposite Party No.1/Appellant received a cheque amounting to Rs.1,50,000/- on 02.11.2009. According to the Complainant the amount was taken as an earnest money to sell a flat measuring about 840 sq. ft. being flat No.’C’ on 3rd Floor at premises No.37, Banerjee Para Road, P.S. Parnashree, Kolkata-700060 at a total consideration of Rs.15,00,000/- and out of the said amount the amount of Rs.1,50,000/- was paid as an earnest money. On the contrary, the Opposite Party No.1 has contended that the amount was taken as a personal loan from the Complainant.
Whether the amount of Rs.1,50,000/- was paid by the Complainant to Opposite Party No.1 was essentially an earnest money for purchase of the flat or personal loan could be gathered from the document itself. However, there is no document in this regard to show the intention of the parties behind the payment of Rs.1,50,000/-. It absence of any document it is quite difficult to ascertain whether the intention of the Opposite Party No.1 was to provide a flat to the Complainant or whether the Complainant has paid the said amount to the Opposite Party No.1 as personal loan.
Needless to say, when the Complainant has alleged that he has made payment of Rs.1,50,000/- to the Opposite Party No.1 as earnest money or part of consideration amount of total consideration price of Rs.15,00,000/- in respect of the flat in question the burden lies upon him to proof the same. Surprisingly enough, the Ld. DCDRF attributed the liability upon the Opposite Party No.1 for failing to produce any supporting document. Since there is no agreement by and between the parties, there was hardly any scope to draw any conclusion in this regard. Be that as it may, since the Opposite Party No.1 has received Rs.1,50,000/- from the Complainant on 02.11.2009 certainly he is liable to refund the same with interest thereon. However, the amount of compensation of Rs.5,00,000/- imposed by the Ld. DCDRF appears to us excessive and in absence of any document or agreement for sale, question of expectation of purchasing of a flat cannot arise at all. Had there been any document showing intention of Opposite Party No.1 being Developer to sell out the flat in question series there should have been justification for imposition of huge amount of Rs.5,00,000/- as compensation. It is well settled that a complaint can be dismissed on the ground of absence of written contract between the parties. In 2012 (I) CPR 229 (B.K. Srivastava – Vs. – A.G. Verma) the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held that in absence of quotation no relief can be granted to the Petitioner. The principle of law laid down in that case squarely applies in the facts and circumstances of our case.
Considering the above, though we are in agreement with Ld. DCDRF that the Complainant is entitled to get back of Rs.1,50,000/- together with interest thereon at the rate of 9 per cent per annum from the date of receipt of the amount from the Complainant along with the costs of rs.5,000/- but so far compensation is concerned, we are reducing the amount from Rs.5,00,000/- to Rs.1,00,000/-.
For the reasons aforesaid, the appeal is allowed on contest in part but without costs with a modification of impugned Judgment/Final Order to the extent that the Opposite Party No.1/Appellant shall make payment of compensation of Rs.1,00,000/- in place of Rs.5,00,000/-.
The Judgment/Final Order passed by the Ld. District Consumer Disputes Redressal Commission, South 24 Parganas at Alipore in Consumer Complaint No.451 of 2013 is allowed in part on contest and modified to the extent indicated herein above.
