Judgment : Dt.17.8.2017

Mrs.Balaka Chatterjee, Member

            This petition of complaint is filed under Section 12 of C.P.Act by Jayati Sen Gupta (Mondal) alleging deficiency in service on the part of the Opposite Parties – (1) Teachers’ Welfare Credit & Securities Ltd., (2) Sri Swapan Kumar Ghosh.

            Case of the Complainant, in brief, is that having no residence owned by her the Complainant entered into an Agreement for Sale with the Opposite Party on 04.05.2013 for purchasing a flat to be constructed in a proposed G + 4 storied building at premises No.33, Upendra Biswas Sarani (Kamarpara) within the limit of Ward No.102, Borough No.XII of the Kolkata Municipal Corporation, along with a car parking space therein for which she had paid Rs.12,00,000/- as advance. It is stated by the Complainant that as per terms of the said agreement the said flat was to have been delivered within twenty four months from the date of agreement, but the opposite party did not initiate the construction work even after lapse of a considerable long spell of time. Ultimately, the opposite party by a letter dt.19.5.2014, intimated that due to technical problem the opposite party had abandoned the project and also assured to refund of Rs.12,00,000/- to the Complainant. The opposite party, subsequently, issued six cheques dt.04.07.2014, 04.08.2014, 24.02.2015, 21.02.2015, 07.02.2015 and 14.02.2015 but all cheques were dishonoured by the drawee Bank on the ground of “insufficient fund”.

            The Complainant requested the opposite party to refund the deposited amount on repeated occasions but all were in vein and having no other alternative she sent a letter dt.11.2.2017 through her authorized representative requesting the opposite party to refund the said amount within 21 days from the date of receipt of the letter but that too produced no fruitful result. Subsequently, the Complainant lodged a complaint with Jadavpur P.S. The Complainant by filing the instant petition of complaint has prayed for direction upon the OP to refund to the Complainant the said advance amount of Rs.12,00,000/- with up-to-date interest, to pay compensation to the Complainant to the tune of Rs.4,00,000/- and to pay Rs.15,000/- as to the cost of litigation.

            In course of hearing Ld. Advocate on behalf of the Complainant narrate the facts mentioned in the petition of complaint.

            Notices were served upon the opposite parties but they did not turn up. So, the case was fixed for ex-parte hearing, vide Order No.6 dt.11.7.2017.

            The Complainant adduced evidence in affidavit.

Decision with reasons

            It is evident from the unrebutted evidence adduced by the Complainant that she had paid Rs.12,00,000/- to the OP towards advance for consideration of a proposed flat to be constructed under a project to be launched by the OP but the said project had been abandoned by the OP who promised to refund the said amount to the Complainant and issued six cheques towards the said refund.

            It is also evident that the said cheques were dishonoured by the drawee Bank. It is also evident that the parties agreed to receive the advanced amount as well as to refund the same and, therefore, cannot resile therefrom and hence the OP is liable to refund the same.

            In course of hearing Ld. Advocate for the Complainant has submitted that the Complainant has not filed any case under Section 138 of N.I.Act. Considering the evidence adduced and submission made by the Complainant we are of opinion that the OP is liable to refund Rs.12,00,000/- to the Complainant. Since a long spell of time has been lapsed from the date of issuance of the said cheques which has not been encashed due to insufficient fund the OP is also liable to pay compensation to the Complainant. We think, it will be just and proper if the compensation amount is paid in form of interest and, it will be just and proper if the rate of interest is fixed @ 7% p.a. to be accrued on the said amount of Rs.12,00,000/- till realization thereof. The OP is further liable to pay litigation cost of Rs.7,500/- to the Complainant since inaction in the  part of the O.P. in respect of the refund of advanced amount compelled the Complainant to file the instant case. In the result, the petition of complaint succeeds.

            Hence,

Ordered

            That the complaint case being No.CC/230/2017 is allowed in part ex-parte against the O.P.

            The OPs are directed to pay Rs.12,00,000/- with cost and with interest @ 7% p.a. to be accrued from 24.2.2015 till realization to the Complainant within two months from the date of communication of this order. The OPs are further directed to pay Rs.7,500/- towards litigation cost within aforesaid period.