Sri     Swapan Kumar Mahanty, President.

This is an application u/s.12 of the C.P. Act, 1986.

            That the complainant No.1 and his wife Sumitra Ghosh, since deceased entered into an Agreement for Sale with the OP for purchasing two flats on the 1^st and 2^nd floor of the proposed building measuring about 600 sq. ft. each at a total consideration of Rs.7,12,500/-.  Out of total consideration complainant No.-1 and his wife had already paid Rs.5,00,000/- to the OP against money receipt.  In terms of the aforesaid Agreement for Sale the possession of the flats was to be delivered to complainant No.1 and his wife within 12 months from the date of execution of the agreement.  On the demise of said Sumitra Ghosh her right sue devolve upon the complainants as legal heirs.  The grievance of the complainants is that the possession of two flats has not been delivered to the complainants despite they having already paid Rs.5,00,000/- to the OP.  The OP deliberately adopting unfair trade practice and also trying to deprive the complainants from their lawful right to refund the amount paid.  The complainants are, filed the instant consumer complaint before this Forum seeking refund of the amount paid along with compensation.

            The complaint has been resisted by the OP which has admitted the written agreement between the parties but has disputed regarding non-payment of advance amount.  The specific case of the OP is that the development work of the proposed building could not be done due to some dispute with the landlord and he refunded the entire advance amount to the complainants partly in cash and partly in cheque.  As such, there is no deficiency in service and/or unfair trade practice on the part of the OP.  Accordingly, the OP has prayed for dismissal of the complaint.

            In the light of the above pleadings the following points necessarily came up for determination:-

1. Has the OP deficient in rendering services to the complainants?
2. Has the OP indulged in unfair trade practice?
3. Are the complainants entitled to get any relief or reliefs as prayed for?

Decision with Reasons

Points No.1 to 3 :

All the points are taken up together for the sake of convenience and brevity in discussion.

            Both parties have tendered evidence through affidavit.  They have also given reply against the questionnaire set forth by their adversaries.  Complainants have filed Brief Notes of Argument.

            It remains undisputed that the complainant no.1 and his wife Sumitra Ghosh since deceased executed an Agreement for Sale dated 02-04-2004 (annexed with the complaint petition) with the OP for purchasing two flats of the proposed building for a total consideration of Rs.7,12,500/-.  Pursuant to the said agreement complainant and his wife had already paid Rs.5,00,000/- to the OP against money receipts dated 10-04-2004 and 15-05-2004 (annexed with the complaint petition).  It is true that the OP could not construct the proposed building due to some dispute with the landlord.  It is also true that Sumitra Ghosh died on 25-02-2016 and on her demise her right sue devolve upon the complainants as legal heirs.

            The grievance of the complainants is that the possession of two flats has not been given to them within 12 months from the date of execution of the Agreement for Sale.  On the contrary, the OP denied the grievance of the complainants and claimed that he has already refunded the entire amount against money receipt.  On perusal of the money receipt and Bank Statement (annexed with the written version) that the OP paid Rs.30,000/- by cash, Rs.25,000/- and Rs.50,000/- by A/c. Payee cheques to the complainant No.1.  Both the cheques were encashed.  During pendency of the consumer complaint the OP also issued an A/c. payee cheque of Rs.50,000/- to the complainant No.1.  Thus, the OP has paid Rs.1,55,000/- to the complainants out of Rs.5,00,000/-.  The OP failed to produce any single document to establish that he paid the balance amount of Rs.3,45,000/- to the complainants.  Thus, the claim of the OP is not true and correct.  Therefore, it is crystal clear that the complainants are till entitled to get refund Rs.3,45,000/- from the OP.  Had the OP paid the entire amount in favour of the complainants, it would not be for the complainants to take shelter of the Forum by taking trouble.  Since coming to the Forum is not a fashionable game for an individual rather everyone tries to avoid legal complications by coming to a Court of Law taking all hazards unless they are otherwise compelled to come to the Forum.

            At the time of hearing the Ld. Advocate for the OP emphasized that the matter with regard to the bouncing of cheque is pending in the Court of Judicial Magistrate, Alipore, and hence, the present proceeding before the Consumer Fora could not be undertaken. 

            We are examined the entire material on record and given a thoughtful consideration to  the argument advanced before us.

            Main point for consideration in the present case is whether the Consumer Fora are competent to entertain the complaint under the Consumer Protection Act, 1986, keeping in view of the fact that proceeding is pending before the Judicial Magistrate, Alipore, u/s.138 of the Negotiable Instruments Act.  It is clearly admitted by the OP that he issued cheques for refund of the advance consideration amount but the said cheque bounced due to insufficient fund.  The complainants instituted proceedings in the Court of Judicial Magistrate, Alipore, u/s.138 of Negotiable Instrument Act.  In so far as, these proceedings are concerned a Court having Criminal Jurisdiction has to adjudicate, whether any punishment was required to be given to the OP, because the cheque issued by him had bounced.  In so far as, the refund of the amount in question is concerned the complainants are well within their rights to get their money back by instituting proceeding before an appropriate Forum since the OP issued cheque of Rs.50,000/- to the complainant No.1 it implies that he admitted his liability towards the complainants and, hence, decided to return the amount deposited with them.  The only contention raised by the OP is that Consumer Fora could not have entertained the consumer complaint in question.  We, however, do not find any reason to agree with the said contention of the OP that the Consumer Fora are not competent to entertain the complaint in question because the amount refunded by the OP was not received by the complainants due to insufficient fund.  There is a clear cut deficiency in service on the part of the OP because the cheque issued by him bounced when presented to the Bank.  He is, therefore, liable to return the money to the complainants along with compensation. 

            All the points under determination answered affirmative.

Hence,

Ordered

That the Consumer Complaint No.459 of 2017 be and the same is allowed on contest against the OP with litigation cost of Rs.5,000/-(Rupees Five thousand) only.

            The OP is directed to refund Rs.3,45,000/-(Rupees Three lakhs forty-five thousand) only to the complainants within 45 days from the date of this order along with litigation cost.

            The OP is also directed to pay compensation of Rs.20,000/-(Rupees Twenty thousand) only to the complainants for mental pain, agony and harassment within the stipulated period.

The OP is further directed to deposit Rs.5,000/-(Rupees Five thousand) only to this Forum for adopting unfair trade within the stipulated period.

            Copies be supplied to the parties as applied for.

Liberty be given to the complainants to put the order in execution, if the OP transgresses to comply the order.