HOWRAH ENCLAVE PVT. LTD. vs DURGA VENUE

IN this revision challenge is to the order dated 30.12.2005 of Consumer Disputes Redressal Commission West Bengal, Calcutta dismissing appeal against the order dated 7.2.2003 of a District Forum whereby petitioners/opposite parties were directed to refund amount of Rs. 3,30,000 with interest @ % p.a. from 5.4.2001, to the respondent/complainant.

RESPONDENT entered into an agreement with petitioner No. 1 company for purchase of a flat at the price of Rs. 14,80,000. Out of this amount he paid a total sum of Rs. 3,30,000. Since the petitioners allegedly failed to perform their part of contract the respondent sent letter dated 11.2.2001 for refund of the amount with interest @ 12% p.a. On amount not being returned, the respondent filed complaint which was contested by the petitioners. Petitioners, inter alia, alleged that respondent cannot seek refund of the money by unilaterally cancelling the agreement. Submission advanced by Mr. S.K. Sharma, for petitioner is that the District Forum has not recorded finding of the petitioners being deficient in service and as such order for return of amount with interest could not have been legally made by it. According to him, inability to take the flat for which payment was made would not furnish cause of action to the respondent to file complaint under the Consumer Protection Act, 1986 (for short the ''Act''). In support of the submission, our attention has been drawn to the letter dated 11.2.2001 (copy at page 26) sent by the respondent to the petitioners. As may be seen from the order of District Forum it did not record finding in regard to deficiency in service because of willingness of the petitioners to settle the matter. So, sufficient time was given to refund the amount to the petitioners with nominal interest @ 4% p.a. Order of State Commission would show that the argument on behalf of petitioners centered about the admissibility in evidence of the receipt/writing dated 1.2.2001 issued by petitioner No. 1 (copy at page 17) to the respondent. State Commission was of the view that contents of this writing can be taken note of in deciding the controversy between the parties. In terms of this writing payment of Rs. 2 lakh by way of earnest money was acknowledged. Last para thereof which is material, reads as under: "No agreement to be signed unless 402 approval received from Calcutta Municipal Corporation for alterations made to the sanctioned plan failing which the advance shall be returned to the buyer within a fortnight from the date of rejection of applications by Calcutta Municipal Corporation. This advance is subject to CMC approval."

Order of the District Forum notices that CMC''s sanction within the meaning of said writing was not obtained by the petitioners. Reading of State Commission''s order would show that it was not the case of petitioners that CMC''s approval had been obtained. Letter dated 11.10.2001 (copy at page No. 25) sent by the respondent to petitioner No. 1 notices that the agreed date of delivery of the flat was April, 2001 and due to inordinate delay in completion of work at the project site the respondent was not interested anymore in purchasing flat No. 38A. This letter further notices that the bank sanctioning the housing loan informed the respondent that sanction of housing loan cannot remain valid for an indefinite period. Therefore, petitioners were called upon to refund the deposited amount of Rs. 3,30,000 with interest. Want of CMC approval and delay in not handing over the possession of flat amounted to deficiency in service on part of the petitioners. We do not find any illegality or jurisdictional error calling for interference in revisional jurisdiction under Section 21(b) of the Act in the order of State Commission affirming the order of District Forum for refund of the amount of Rs. 3,30,000 with nominal interest @ 4% p.a. Revisional petition is, therefore, dismissed. Revision Petition dismissed.