Presented by Sri G.S.Pradhan, President .<br /> Brief fact of the case is that, the Opposite Party, the proprietor of M/s Saraswati Builders and Developers has constructed Two Bed Rooms flat apartment in the name and style of Saraswati Tower in Saraswati Enclave having super built of area of 1100 (one thousand one hundred)sq. ft(approximately) each having a price band of Rs.6,29,000/-(Rupees six lac twenty nine thousand)only. On Nanda Kishor Patwari initially has applied before the Opposite Party to purchase a flat i.e. Unit No. 3(three) first floor of Saraswati tower with a super built of area 1100 (one thousand one hundred)sq. ft. Accordingly he had paid Rs.6,29,000/-(Rupees six lac twenty nine thousand)only towards the full and final payment and had also initiated all necessary paper works with the Opposite party, but the ownership of the flat in question had not been transfered in favour of Nanda Kishor Patwari. The Complainant and her family members by then were staying in that flat being permitted by Nanda Kishor Patwari.<br /> Due to some personal problem Nanda Kishor Patwari did not want to proceed with the ownership of the flat so the Complainant wanted to purchased the same and to get transfer the ownership in her name. After receiving a sum of Rs. 10,000/-(Rupees ten thousand)only towards necessary paper works and fulfillment of other paraphernalia from the Complainant, the Opposite party has entered into an agreement with the Complainant to make the deal final. Thereafter the Complainant paid Rs.6,84,000/-(Rupees six lac eighty four thousand)only on Dt. 26/08/2008 and Rs. 33,000/-(Rupees thirty three thousand)lonly on Dt. 23/01/2008 to the Opposite Party towards the cost of the additional work of the flat in question. Nanda Kishor Patwari was refunded Rs. 6,29,000/-(Rupees six lac twenty nine thousand)only i.e. Cost of the unit out of Rs. 6,84,000/-(Rupees six lac eighty four thousand)only paid by the Complainant. So the Complainant is entitled to be refunded with a sum of Rs. 55,000/-(Rupees fifty five thousand)only (i.e. the excess amount paid by the Complainant) by the Opposite Party.<br /> <br /> The Complainant requested the Opposite Party several time to refund the excess amount of Rs. 55,000/-(Rupees fifty five thousand)only but the Opposite Party was deferring the matter on some pretext or other and finally on Dt. 21/11/2008 he denied fluently to refund the amount. At last the Complainant served a pleader notice on Dt. 25/11/2008 on the Opposite Party requesting him to refund the said excess amount but the Opposite Party has given a reply with some imaginary assessment claiming an accounted sum of Rs. 27,000/-(Rupees twenty seven thousand)only from the Complainant.<br /> <br /> Despite repeated request the Opposite Party did not take any steps for refund of the excess amount or to allot the flat in the name of the Complainant is amounts to deficiency and negligency in service and unfair trade practice by the Opposite Party towards the Complainant.<br /> The Complainant claims Rs.55,000/-(Rupees fifty five thousand)only as the excess amount, Rs.10,000/-(Rupees ten thousand)only towards deficiency and unfair trade practice and Rs. 5,000/-(Rupees five thousand)only towards litigation expenses.<br /> <br /> In its version the Opposite Party denied to have cause any deficiency in service towards the Complainant so also denied all others allegation made by the Complainant.<br /> The Opposite Party contend that, the Parties has entered into a fresh agreement with the consent and presence of Nanda Kishor Patwari. As per the agreement the Parties are bound by the increase or decrease of the additional built of area/super built up area and to calculate the cost as per the agreed rate and purchaser is liable to pay for the increase area/entitled to be refunded with decrease area. But the Complainant has not extended any sort of co-operation for measurement of the build up area and super build up area till today which can be calculated by joint verification. The Complainant has not taken any steps for full and final settlement of the transaction with the Opposite Party enabling him to transfer the ownership in her name.<br /> <br /> As per the loan availed by the Complainant, the S.B.I. Commercial Branch Bargarh has issued a cheque amounting to Rs. 6,84,000/-(Rupees six lac eighty four thousand)only in favour of the Opposite Party which includes the cost of the land, cost towards construction of the building and cost towards additional work and Rs. 33,000/-(Rupees thirty three thousand)only paid by the Complainant towards advance as additional work in total the Complainant has paid a sum of Rs. 7,17,000/-(Rupees seven lac seventeen thousand)only to the Opposite Party and in additiona to it the Complainant is liable to pay the cost of super built up area in excess of 1100 sq. ft as per the term of agreement.<br /> <br /> The Complainant is not entitled to be refunded with a sum of Rs. 55,000/-(Rupees fifty five thousand)only as claimed by her and is liable to perform and bound by the terms of agreement and also liable to perform her part of contract in respect to the transfer of ownership of the flat in her name.<br /> <br /> The Opposite Party prays for dismissal of the complaint.<br /> <br /> We have gone through the pleadings of the Parties, copy of documents available on record and also heard the agreement advanced by the learned counsel for the Parties and found as follows:-<br /> <br /> The flat unit was originally booked in the name of Nanda Kishor Patwari and the Complainant was a tenant under the said Nanda Kishor Patwari and due to some personal problem he could not proceed further with the allotment of the flat even after payment Rs. 6,29,000/-(Rupees six lac twenty nine thousand)only towards the cost of the flat is not disputed by the Parties. Further it is also not disputed that the Complainant intended to proceed with the same, has paid a sum of Rs. 6,84,000/-(Rupees six lac eighty four thousand)only and Rs. 33,000/-(Rupees thirty three thousand)only to the Opposite Party on Dt. 28/06/2008 and Dt. 23/01/2008 respectively out of which a sum of Rs. 6,29,000/-(Rupees six lac twenty nine thousand)only was refunded to said Nanda Kishor Patwari and Rs. 33,000/-(Rupees thirty three thousand)only was meant for additional cost of the flat unit towards additional work conversion of land etc. As such the claims that she is entitled for refund of Rs. 55,000/-(Rupees fifty five thousand)only which is paid by her in excess of Rs. 6,29,000/-(Rupees six lac twenty nine thousand)only.<br /> <br /> In this case the Complainant has not alleged any defect in construction nor has alleged any negligence in providing service amounting to deficiency in service under Consumer Protection Act. The Complainant alleges that, the Opposite Party is liable to refund Rs. 55,000/-(Rupees fifty five thousand)only to the Complainant which she has paid in excess of Rs. 6,29,000/-(Rupees six lac twenty nine thousand)only and to take necessary steps for allotment of the flat in favour of the Complainant. The Complainant claims that, Nanda Kishor Patwari has paid a sum of Rs.6,29,000/-(Rupees six lac twenty nine thousand)only to the Opposite Party for full and final amount of the flat in question<br /> <br /> So, now the points for consideration are to be (i) whether Rs.6,29,000/-(Rupees six lac twenty nine thousand)only is the full and final cost of the flat and (ii) whether the Opposite Party is liable to refund Rs.55,000/-(Rupees fifty five thousand) to the Complainant, the differential amount of the amount of the amount paid by the Complainant to the Opposite Party.<br /> <br /> The agreement has been signed by the Complainant and the Opposite Party in present of Nanda Kishor Patwari and the Parties are bound by the terms and condition of the agreement. In the schedule the cost of the building has been mentioned which was been calculated @ Rs.571.81/-(Rupees five hundred seventy one and eighty one paise)only per sq. ft. As per clause 7(seven) of the agreement it has been mentioned that the purchaser will be entitled for refund or liable to pay as the case may be in case of decrease or increase in the additional built up area/super built up area (as defind in page-3(C) of the agreement) and the same will be calculated at the rate mentioned in the schedule. The Complainant in para (ii) of the petition also states that the super built up area of 1100(one thousand one hundred) sq.ft approximately each having a price band of Rs.6,29,000/-(Rupees six lac twenty nine thousand)only per unit. So from the above discussion it is clear that Rs.6,29,000/-(Rupees six lac twenty nine thousand)only can not be said to be full and final cost of the flat unless and until the super built up area is calculated and settled between in parties as per agreement.<br /> <br /> The copy of letter Ref.No.S.T.F.05/Dt.15/01/2008 issued by the Opposite Party to the Complainant reveals that she has acknowledged the cost of the proposed additional woks of Rs. 88,000/-(Rupees eighty eight thousand)only and as per the complaint petition, the Complainant has paid Rs. 33,000/-(Rupees thirty three thousand)only on Dt. 23/01/2008 to the Opposite Party towards the cost of additional works. As such the balance cost of the additional works will be Rs. 55,000/-(Rupees fifty five thousand)only and it is now very much clear that this Rs. 55,000/-(Rupees fifty five thousand)only in addition to Rs. 6,29,000/-(Rupees six lac twenty nine thousand)only which has been refunded to Nanda Kishor Patwari will amount to Rs. 6,84,000/-(Rupees six lac eighty four thousand)only in shape of cheque to the Opposite Party on behalf of the Complainant. So the Complainant is not untitled to get refund of Rs.55,000/-(Rupees fifty five thousand)only from the Opposite Party.<br /> Consequently, the complaint is dismissed.<br /> Complaint disposed of accordingly.<br /> <br /> No cost/compensation.