23.9.15.
The door of this Forum has been knocked by the Complainant, for redressal arising out of the consumer dispute as per the Consumer Protection Act, 1986.
In diminutive, the case of the Complaint, is that, the Complainant entered into an ‘Agreement for Sale’ on 31.10.2005, with the Opposite Parties for purchasing a space on the Ground floor, measuring of 150 sq. ft. of carpet area specifically described in the ‘Schedule’ of the complaint, for total consideration amount of Rs. 4,50,000/- only. The Opposite Parties proposed the Complainant that if she would pay the entire consideration amount at a time on the first day then she would get the said space on the said price otherwise the same would be much more costly and accordingly the Complainant had paid the entire consideration amount on that day on 31.10.2005 to the Opposite Parties at the time of executing the said ‘Agreement for Sale’. The Opposite Parties assured the Complainant to deliver the said property within one year from the date of the said ‘Agreement’.
But after development of the said project the Opposite Parties offered the Complainant to purchase a minimum space of 250 sq. ft. instead of 150 sq. ft. which was out of the terms and conditions of the said ‘Agreement for Sale’ but the Complainant consented to return of payment of the paid consideration amount. But the Opposite Parties requested the Complainant to return the said amount after 5 years and had executed a ‘Declaration’ on 27.08.2006 on a non-judicial Stamp Paper but the Opposite Parties never intended to pay the said amount after expire of the said 5 years, in spite of several requests made by the Complainant.
Ultimately, the Complainant sent a legal notice to the Opposite Parties on 14.11.2011 which was duly received by the Opposite Parties on 16.11.2011 requesting for necessary step for refunding the said amount but of no response. The Complainant was severally assured by the Opposite Parties to getting back the said amount in installments, and lastly on 30.05.2013 the Opposite Parties refunded a sum of Rs. 25,000/- only and on 02.07.2013 repaid a sum of Rs. 50,000/- only out of the paid amount of Rs. 4,50,000/- only and the rest amount of Rs. 3,75,000/-only was still unpaid towards the Complainant, what amounts to deficiency and negligent manner of service on the part of the Opposite Parties and by such indifferent attitude of the Opposite Parties caused mental agony and harassment to the Complainant for which he asked for compensation along with redressal as prayed for.
Resisting the Complaint, the Opposite Party no. 2 filed Written Version for denying the contentions and all material allegations made by the complainant in the Petition of Complaint and stating inter alia, that the Complainant has no cause of action to file the instant case, is not maintainable and is barred by limitation.
The case, as a whole, stated by the Opposite Party No. 2 in crisp, is that, the Opposite Party had strictly denied the total case of the complaint and stated no case of their own but had denied any negligence or/ and deficiency in rendering service on their part and the Complainant is not entitled to get any relief as prayed for. Hence, the Opposite Party No. 2 prayed for dismissal of this case.
Despite proper service of the notice to the Opposite Party No. 1, the concern Opposite Party never appeared before the Forum to contest the case nor he had filed any ‘Written Version’ on his behalf or through any Ld. Advocate/Representative. Thus the Opposite Party No. 1 has relinquished his scope to refute the case. So, the instant case has been heard ex-parte against the Opposite Party No. 1.
Points for Determination
1. Is the complaint maintainable under the C. P. Act ?
2. Was there any negligence or deficiency in service
on the part of the O.Ps ?
3. Is the complainant entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for the sake of convenience and brevity.
The main dispute between the Complainant and the Opposite Parties is that in spite of executing the ‘Agreement for Sale’ dated 31.10.2005 and also executing the Declaration dated 27.08.2006 the Opposite Parties never refund the balance amount of Rs. 3,75,000/- only to the Complainant.
We have carefully considered and scrutinized the submission made before us by the Ld. Advocate for the Complainant and also the Ld. Advocate for the Opposite Party No. 2 and also critically perused all the material documents on record.
On overall evaluation of the argument advanced by the Ld. Advocates of both the parties, and on critical appreciation of the case record, it is clearly evident that an ‘Agreement for Sale’ was executed by and between the Complainant and the Opposite Parties on 31.10.2005, the photocopies of which was filed by the Complainant.
It is revealed from the photocopies of the documents filed by the Complainant that a ‘Declaration’ was also executed by and between the Complainant and the Opposite Parties on 27.08.2006 wherein the Opposite Parties agreed to pay the total amount of Rs. 4,50,000/- only after a period of 5 years from the date of the said ‘Declaration’ dated 27.08.2006 with the interest of 8% p.a. to the Complainant, which manifestly specify that the Opposite Parties are obliged to pay or to refund the total amount of Ts. 4,50,000/- only within 26.08.2011 along with the agreed interest.
But the fact remains that the Complainant admitted to receive the amount of Rs. 25,000/- only on 30.05.2013 and Rs. 50,000/- only on 02.07.2013, i.e. the Complainant had actually received a total sum of Rs. 75,000/- only out of the entire due amount from the Opposite Parties.
Thus manifestly the record reveals that a sum of Rs. 3,75,000/- only is still due towards the Complainant payable by the Opposite Parties. Moreover, at the time of the hearing the argument the Ld. Advocate of the Opposite Party No. 2 verbally admitted the fact that the aforesaid sum is still due towards the Complainant and specifically expressed that the Opposite Party No. 2 is still ready and willing to pay the rest amount of Rs. 3,75,000/- only to the Complainant.
So, in view of the above findings we are inclined to hold that in the present situation the prayer of refund the Rs. 3,75,000/- only, along with an interest of 10% p.a. from the date of actual payment till its realization can only be awarded in favour of the Complainant.
Therefore, in light of the above analysis, we are inclined to hold that the Complainant has successfully proved his case and is entitled to get the relief as prayed for and consequently the points for determination are decided in affirmative.
In short, the Complainant deserves success.
In the result, we proceed to pass
O R D E R
That the case be and the same is allowed on contest against the Opposite Party No. 2 and also allowed ex-parte against the Opposite Party No. 1 with cost of Rs. 3,000/- only payable by both Opposite Parties within one month from the date of this ‘Order’.
That both the Opposite Parties are jointly and severally further directed to refund the entire paid amount of Rs. 3,75,000/- only, along with interest of 10% p.a. from the date of actual payment of the said amount i.e. from 31.10.2005 till its realization, to the Complainant, within one month from the date of this ‘Order’.
In the event of non compliance of any portion of the order by the O.Ps within a period of one month from the date of this order, both the O.Ps shall have to pay a sum of Rs. 200/- per day, from the date of this order till full satisfaction of the decree, and such amount shall be paid and shall be deposited by both the O.Ps to the State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
