Order-47.
Date-18/06/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that on 04-02-2011 he entered into an agreement for sale with the OP for purchasing the said flat at a total consideration of Rs.20,00,000/- out of which Rs.3 lakhs were paid on the same date of the execution of the said agreement and the rest of the remaining amount shall be paid as per agreed terms and condition by a letter OP. Beside the above consideration amount complainant had also paid other huge sum of money to the OP who had gladly accepted the money by endorsing his signatures against the document and in spite of paying the huge and hefty amount of money, the OP failed to register the transfer of property in favour of the complainant and complainant registered a protest letter by issuing an Advocate’s notice through his Ld. Advocate Sri Sanjay Jha on 03-12-2011 against the blatant and flagrant violation of the agreement for sale by the OP and OP has failed to return the money of the complainant by issuing some A/c. payee cheques each of which has got dishonoured by OP through his Bank due to the insufficient of fund as per the Bank memo. Complainant instructed his Ld. Advocate to take action as per the Law and on his behalf his advocate issued a notice u/s.138 of the Negotiable Instrument Act, 1988 against the OP but no fruitful result on the part of the OP is shown.
OP is a promoter/developer by profession and is very influential person across the party level and complainant finds it difficult to get redressal of his grievances and so, complainant is compelled to file this compliant for negligent and deficiency in service and also for adopting unfair trade practice and prayed for redresal.
OP by filing written statement on 31-10-2013 submitted that this complaint is not maintainable and denied all other allegations and it is further submitted that it is mala fide and it is further submitted that the complainant neglected to pay the amount as agreed in the agreement of sale without paying the whole amount for which complainant was asked for registration of the flat in question. There is no irregularities in respect of the transfer of property in question on the part of the OP and further prayed for dismissal of this case.
Decision with Reasons
On careful consideration of the complaint and the written version and also hearing the Ld. Lawyers of both the parties and further considering the order sheet displays that on 06-03-2014 OP Swapan Kumar Bose prayed to permit him to submit a draft of total prayed amount of the complainant that is Rs.8,60,000/-. Subsequently, it is found that complainant received Rs.8,60,000/- as per order of this Forum and complainant’s Ld. Lawyer submitted that he has already received Rs.8,60,000/- but the interest accrued from the said amount with effect from 20-01-2012 has not been paid as yet because the complaint was filed on 20-01-2012. So, considering the payment ultimately in the year 19-06-2014, it is proved that total advanced amount of Rs.8,60,000/- has been paid finally by the OP on 19-06-2014 but no interest has been paid by the OP and that must be paid by the OP when with the help of the said amount OP has developed, constructed the flat and sold away the flat at a higher rate to some other persons deceiving the complainant. So, OP by receiving the said Rs.8,60,000/- from the complainant prior to 2012 invested for his own business and made profit on high rate by selling the flat on higher rate and no doubt complainant has been deceived by the OP and for which complainant is entitled to get interest at the rate12 percent over the said amount and within 2012 to 2014 the said interest as accrued was about Rs.1,80,000/- and up to this date the interest is another Rs.86,000/-. So, the complainant is entitled to a sum of Rs.2,66,000/- as interest up to this date of due and OP is liable to pay the sum when complainant did not get the flat and that flat had been sold by the OP at a high rate by making profit and truth is that by using complainant’s fund OP completed the flat and sold away that means he made huge profit out of that only 10 percent interest over the said amount shall be paid and that has been assessed up to this date and so, when entire received amount has been paid this Rs.8,60,000/- and over that amount the interest has been assessed from the beginning of 2012 to June up to this date and practically the agreement to sale was not executed, OP did not act rather OP for the benefit and more profit sold away the property to deceive the complainant and practically complainant has been deceived and now-a-days it is not possible to purchase a flat with such amount. So, the allegation of the complainant is well proved when OP already during pendency of this complaint retuned Rs.8,60,000/- that means OP admitted that he received that amount, enjoyed that amount, invested that amount and enjoyed the profit whereas complainant has lost 4 to 5 years, has been chewing his finger on the road but relief was actually given by this Forum when the order was passed against the OP during pendency of the case to refund the advance amount of the flat OP paid but he is unwilling to pay interest but that is not principle of law that one shall have to enjoy profit with the help of money of customer and customer shall have to chew finger on the road up to higher Fora that cannot be, Rule of law must be properly implemented by Fora otherwise there is no necessity of the Fora but in this case it is proved that complainant is entitled to interest over the said amount from 2012 to 2015 and that has been assessed at the rate10 percent over the total amount and accordingly complainant is entitled to a sum of Rs.2,66,000/- as interest and OP is legally bound to pay that and in fact, complainant has suffered much financially and mentally and actually for the negative attitude of the OP and for selling the flat at higher rate to 3rd party complainant’s hope for purchasing the flat is nipped in the bud.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against the OP with a cost of Rs.5,000/-.
OP has already paid by instalment the entire advance amount of Rs.8,60,000/- so, OP shall have to pay total interest from 2012 to 2015 upto his date of order that is total assessed interest of Rs.2,66,000/- to the complainant within one month from the date of this order failing which for non-compliance of the Forum’s order penal interest at the rateRs.10 percent over the said amount till full satisfaction of the decree shall be paid by the OP and even if it is found that OP is unwilling to comply this order, OP shall have to pay penal damages of Rs.25,000/- to this forum and further penal action shall be started against them for non-compliance of the Forum’s order.
