Dt. of filing – 21/06/2018

Dt. of Judgement – 16/11/2018

Mrs. Sashi Kala Basu, President

        This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 by the Complainant Sri Suresh Chandra Das against Opposite Party namely Amit Das @ Haridas Das alleging deficiency in service  and unfair trade practice on the part of the Opposite Party.

          Complainant’s case in short is that Opposite Party being owner of the two storied building described in the schedule, entered into an agreement for sale with the Complainant on 22/06/2016 in respect of the ground floor flat on consideration price of Rs.8,00,000/-. Complainant paid Rs.3,00,000/- to the Opposite Party by a cheque dated 22/06/2016 on the said date of agreement. But the Opposite Party neither handed over the possession of the ground floor flat nor has returned the money taken as advance. A demand notice dated 23/05/2018 was also sent by the Complainant through his Ld. Advocate but all in vain. So present complaint is filed by the Complainant praying for directing the Opposite Party to pay back the advance amount of Rs.3,00,000/- with interest, to pay compensation of Rs.5,00,000/- and Rs.5,00,000/- as damages for arbitrarily breaching the contract and litigation cost of Rs.10,000/- .

          It appears from the record that the notice was sent to Opposite Party but inspite of its service as no step was taken, vide order dated 07/09/2018 the case was fixed for ex-parte hearing.

          During the course of evidence, Complainant has filed affidavit-in-chief. The argument has been heard.

          Along with the petition of Complaint, Complainant has also filed documents which are copy of the agreement, extract of the passbook showing relevant entry of encashment of cheque in the bank account, some photographs and copy of notice dated 23/05/2018

          Only point requires determination is whether the Complainant in entitled to the reliefs as prayed for?

Decision with reasons

          The agreement for sale is filed by the Complainant from which it is evident that the same was executed between the Opposite Party and the Complainant on 22/06/2016. The agreement is very categorical that the Opposite Party acquired the property  by way of a deed of settlement and agreed to sell the ground floor flat mentioned in Schedule B to the Complainant on a total consideration of Rs.8,50,000/-. Complainant paid Rs.3,00,000/- as an advance payment by a cheque being no.620802 dated 22/06/2016 drawn on S.B.I, Parnashree Branch, on the said date of execution of agreement.

          As per the agreement, flat was to be handed over on realization of full consideration money of Rs.8,50,000/- and deed of conveyance was to be executed within 6 months from the date of execution of agreement for sale. But according to Complainant, Opposite Party has neither handed over the flat nor has returned the advance money taken by him.

          In order to substantiate that the cheque being no.620802 dated 22/06/2016 of Rs.3,00,000/- was given to Opposite Party and that it was encashed, relevant passbook has been filed. It appears that the said cheque was encashed on 27/06/2016.

          Further payment of consideration amount was agreed to be paid at the time of starting of work and during handing over of possession of the flat. But according to the Complainant, Opposite Party did not start the construction works. Some photographs have been filed to show that construction was not started even though some demolition appears to have been done. So since the flat as agreed has not been handed over within the period as agreed and neither the part payment of Rs.3,00,000/- has been returned, there has been unfair trade practice on the part of the Opposite Party especially when no contrary evidence is forthcoming. Thus the Complainant is entitled to get back the amount of Rs.3,00,000/- and also compensation of Rs.1,50,000/- in total for losing the interest on the said amount and for suffering harassment and mental agony. He is also entitled to the litigation cost as he has been compelled to file this case. However as compensation is awarded, we are not inclined to pass any order as to damages as prayed.

Hence,

ORDERED

CC/373/2018 is allowed ex-parte against the Opposite Party. Opposite Party is directed to pay back the advance amount of Rs.3,00,000/- and compensation of Rs.1,50,000/- along with litigation cost of Rs.15,000/- (total sum of Rs.4,65,000/- ) within three months from the date of this order failing which same shall carry interest @ 5% p.a. till its realization.