Judgment : Dt.26.4.2017
Mrs. Balaka Chatterjee, Member
This complaint petition is filed under section 12 of C.P.Act by Rama Rawat alleging deficiency in service by the OP namely Tilak Majumder in respect of delivery of flat.
Case of the Complainant in brief is that she entered into an agreement with the OP in respect of a flat at 2/20, Arobindo Nagar, KMC Ward No.95, P.S.-Jadavpur, Kolkata-700 040 at a consideration of Rs.8,00,000/-. The Complainant has stated that she had paid Rs.3,50,000/- only as to booking amount and it was agreed that the balance amount of consideration would be paid at the time of delivery of possession and registration of the said flat. The Complainant has further stated that the OP has failed to complete/delivery of the said flat to the Complainant receiving the balance amount of consideration. Subsequently, the Complainant served a letter dt.14.6.2012 asking the OP to complete the project immediately in reply of which the OP stated that the flat would be delivered only after receiving extra amount of Rs.4,50,000/-. Accordingly, a deed of compromise was executed by and between the parties. The Complainant sensing ill intention of the OP lodged an F.I.R. on 8.9.2012 before Deputy Commissioner of Police.
As per terms of the agreement of compromise, the OP refunded Rs.2,25,000/- to the Complainant and issued cheques for an amount of Rs.4,00,000/-. The cheques were dishonoured by the bank due to insufficient fund and the Complainant took steps under section 138 of the N.I.Act. It is further stated by the Complainant that the Complainant filed a case before the District Forum which was dismissed by this Forum. Thereafter, the Complainant preferred an appeal before the Hon’ble State Commission and after hearing both sides the State Forum remanded back to the district Forum. But, at that time also the case was dismissed for default. Accordingly, the Complainant has prayed for refund of Rs.4,00,000/- along with interest @ 9% p.a., to pay Rs.2,00,000/- towards compensation and Rs.15,000/- for the cost of litigation.
The OP appeared, contested and filed written version stating, inter alia, that the agreed consideration amount of the flat was Rs.8,00,000/- out of which the Complainant paid Rs.3,50,000/-. It is further stated that the Complainant executed a compromise petition and also filed criminal cases. According to the OP he has no deficiency in providing service and thus the petition of complaint may be dismissed.
Parties adduced evidence.
Points for determination
Is there deficiency in providing service on the part of the OP?
Is the Complainant entitled to the relief as prayed for?
Decision with reasons
Admittedly the Complainant entered into an agreement for sale on 6.3.2012 and subsequently executed another deed of compromise, copy of which he annexed to petition of complaint having pagination No.15 & 16. It appears from the record that as per terms of the said compromise agreement the OP was to have refunded Rs.6,25,000/- by installments by 31.01.2013 but, the Complainant received Rs.2,25,000/- only and the cheques for Rs.4,00,000/- were dishonoured due to insufficient fund for which the Complainant initiated proceeding under Section 138 of N.I. Act.
It appears from the petition of complaint that the Complainant has claimed relief for refund of Rs.4,00,000/- along with interest @ 9% p.a. to be accrued thereon alternatively, for delivery of the flat at the agreed consideration as per terms of the agreement for sale Dt.6.3.2012 under prayer No.(III). As regards this prayer, it is evident that the Complainant has already initiated proceedings under N.I.Act regarding the said amount of Rs.4,00,000/- and further claims of refund of the said amount of Rs.4,00,000/- before this Forum. The Complainant, however, is not entitled to get such double benefit.
Further, as regards the alternative prayer for delivery of the said flat, it is on record that the Complainant entered into deed of compromise with the OP and acted upon in terms of the said deed of compromise although the Complainant averred in paragraph 13 of the petition of complaint. The Complainant has further stated that since the OP failed to refund the agreed amount within stipulated time the agreement for sale dt.28.9.2012 would be revived. But, facts remain that no such term has been found in the copy of deed of compromise dt.28.9.2012 annexed to the petition of complaint under page No.15 & 16. Therefore, the prayer for delivery of the said flat cannot be allowed.
Since the prayer for refund of consideration amount and the alternative prayer for delivery of the flat at agreed consideration amount are not allowed herein the question of granting compensation or cost does not arise at all.
Points No.1 & 2 are decided accordingly.
In the result, the petition of complaint does not succeed.
Hence,
ordered
That CC/449/2016 is dismissed on contest without costs.
