Present         (1)      Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                               President

                    (2)      Smt. Karishma Mandal,

                              Member

Date of Order : 30.09.2016

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to refund the amount of Rs. 4,72,000/- ( Rs. Four Lakh Seventy Two Thousand only ) with interest.
2. To direct the opposite parties to refund the brokerage amount of Rs. 1,100/- ( Rs. One Thousand One Hundred only ).
3. To direct the opposite parties to pay Rs. 50,000/- ( Rs. Fifty Thousand only ) as compensation.
4. To direct the opposite parties to pay Rs. 10,000/- ( Rs. Ten Thousand only ) as litigation costs.

2. The facts of this case lies in a narrow compass which is as follows:-

The complainant has asserted that vide agreement dated 11.10.2008 one Chandrajeet Singh agreed to sell flat no. 104, 1^st floor without parking for consideration amount of Rs 53,50,000/-. On the same date the complainant paid Rs 1,100/- to opposite party broker ( vide annexure – 1) who was mediating in this regard. The complainant thereafter paid Rs. 4,72,000/- to opposite party no. 1 till 22.011.2008 as will appears from annexure – 2.

It is further case of the complainant that thereafter she requested Chandrajeet Singh ( opposite party no. 2 ) to produce the documents of title and other relevant papers of the said flat for the purpose to examine the genuineness of the title of seller i.e. Chandrajeet Singh. But he did not produced any documents before her despite repeated request of the complainant. Thereafter complainant sent a letter dated 19.11.2009 to opposite party no. 1 for refunding the amount of Rs. 4,72,000/- but he failed. Thereafter the complainant gave a legal notice vide annexure – 3 to opposite party no. 1 for refunding her amount.

In Para – 9 of complaint petition it is mentioned that the agent of opposite party no. 1 informed the complainant that opposite party is ready to refund the amount which was paid by the complainant to Proprietor Dayal Properties opposite party no. 1. Later on opposite party no. 1 assured the complainant that the amount paid by her shall be refunded but the said has not been refunded.

A supplementary affidavit has been filed on behalf of complainant from which it appears that certain cheques were issued by the complainant which was drawn on Panjab National Bank, Kankarbagh, Patna and ICICI, Patna.

From judicial record it appears that when the opposite parties did not appeared despite service of notice then the case was heard ex-parte.

It further appears that the complainant has filed an affidavit stating therein that notice have been served on opposite parties.

Heard the learned counsel for the complainant.

So far maintainability of the case is concerned it is stated that as some of the payment has been made from Patna hence part of the cause will deemed to have been arisen at Patna and as such this maintainable before this forum.

From perusal of complain petition as well as legal notice and the photocopy of the deposit slips it is crystal clear that the amount was paid to opposite party no. 1 who is a broker.

So far the agreement to sell (annexure – 1) it appears that it was made between the complainant as well as one Chandrajeet Singh i.e. opposite party no. 2 who has been made party later on and has received the amount paid by the complainant through opposite party no. 1.

Heard the learned counsel for the complainant and perused the relevant record case fully.

As the entire payment has been made through opposite party no. 1, and it is the opposite parties who are bound to return the amount because the transaction could not be materialized due to non – supply of the papers to the complainant by opposite party no. 2 who has entered in agreement with complainant through opposite party no. 1. Hence there is gross deficiency on the part of opposite parties.

From the complaint petition it is crystal clear that the entire consideration amount of the flat has been paid by the complainant to opposite party no. 2 through opposite party no. 1 who is property dealer. It further appears that as the real seller fails to deliver relevant papers of title of the flat in question, hence the transaction could not be materialized.

It is needless to say that the Hon’ble National Consumer Dispute Redressal Commission, in citation reported in 11(1995) CPJ (NC) Sudhir Kashyap Vrs. N. Palta have been pleased to hold that property dealer also render service and hence their “ Service” is also covered under Sec 2 (I) (o) of the Consumer Protection Act 1986. It goes without saying that written statement Sec 17 of the Registration Act 1986 an agreement for selling immovable property may not be registered because it is not compulsory.

When we examine the complaint petition in the light of aforementioned legal provision then clear picture emerges.

For the discussion made above we direct the opposite parties to refund the amount of Rs. 4,72,000/- ( Rs. Four Lakh Seventy Two Thousand only ) as well as Rs. 1,100/- ( Rs. One Thousand One Hundred only ) to the complainant within the period of two months from the date of receipt of this order or certified copy of this order failing which the opposite parties will have to pay an interest @ 10% on the said amounts till its final payment.

Opposite parties are further directed to pay Rs. 10,000/- ( Rs. Ten Thousand only ) to the complainant by way of compensation and litigation costs within the period of two months.

Accordingly, this complaint petition stands allowed to the extent referred above.

                             Member                                                                              President