NISHITH KUMAR CHATTERJEE vs BHASKAR MUKHERJEE

THE fact of the case is that the complainant paid Rs. 1,10,000/- on various dates for purchase of a flat as per first agreement for sale at a price of Rs. 1,50,000/- and the said flat was scheduled to be delivered by February 1989. It also appears that the deposits of the installments on account of the said flat were made beyond February 1989. But the complainant finding no progress of the construction of the apartment cancelled the first agreement for sale and desired to get refund of his deposit of Rs. 2,10,000/- but only received Rs. 4,000/- on account of interest. As the petitioner could not recover his money he entered into a fresh agreement for purchase of a flat on 2nd floor of the same building at premises No. 239, Santosh Roy Road, Behala at and for a price of Rs. 80,000/-. By the 2nd agreement the possession of the flat was agreed to be delivered by March 1991 and it was agreed by the opposite party the excess deposit of Rs. 30,000/-and to that effect opposite party issued 3 cheques once dated 21.1.90 for Rs. 10,000/- another dated 7.4.1 for Rs. 10,000/- and the order dated 10.5.91 for Rs. 5,000/- which bounced upon presentation of those cheques with the remark "refer to the drawer". THE petitioner has claimed Rs. 1,80,700/- on various heads as stated in the petition of complaint apart from delivery of flat in question under Sale Agreement.

THE defence case is that the claim of the complainant is without jurisdiction in-as-much as the provisions under Section 2(1)(i), (ii), (f), (g) of the Consumer Protection Act are not applicable. It is admitted by the opposite party that petitioner made advance for a ground floor flat under a Sale Agreement in August 1988 but that contractual relationship never entitled the complainant to be a consumer. THE said contractual agreement enjoins responsibility upon opposite party for construction and cannot come under purview of the Consumer Protection Act and on this count the opposite party has referred to a decision in the case of Vinodini Bajpai v. Rajya Krishi Utpadan Mandi Parisad reported in I (1991) CPJ 169 (NC). It is also contended that the complainant by his letter dated 6-9-89 cancelled the first agreement for sale and entered into a second agreement for sale of a flat on the ground floor at 239, Santosh Roy Road at a price of Rs. 80,000/-. It is contended that the complainant failed to pay the installments as per agreement for which the opposite party had written several letters. It is also averred that he has received money from the complainant but not the same amount as stated in Paragraph 5 of the petitioner of complaint and that the opposite party had good intention for which he paid Rs. 4,000/- as interest and he is fighting to raise capital and arranging for all infrastructures for construction of the building and his target is getting set back due to increase in the price of raw materials. THE opposite party also contended that the complainant had to take resort under Section 138 of N.I. Act for bouncing of the cheques and without doing so the complainant has lost all grounds and scope to institute cases as the legal proceeding is barred by in action and time limit under Section 138 of N.I. Act and suggested either to take refund of the moneys so paid by the complainant or to pay escalation charges for the flat for the gap of 3 years and the excess amount of money has been spent as the construction continued beyond the stipulated time and in view of Clause ''C in the agreement for sale dated 9-8-88 that the additional price has to be paid by the Complainant at the command of the promoter opposite party and in support of his contention opposite party has cited a decision reported in AIR 1989 SC .1034. JUDGMENT It is admitted by the opposite party receipt of the sum of Rs. 1,10,000/-as advance for sale of a flat by virtue of an sale agreement dated 9-8-88 at and for a price of Rs. 1,50,000/-. The installments paid by the complainant were beyond the schedule time as per agreement and the entire consideration money of Rs. 1,50,000/- was never paid by the complainant. Consequently both the parties have thrown muds towards each other for non-performance of their respective part of obligation arising out of the first agreement dated 9-8-88 and in aforesaid circumstances the agreement dated 9-8-88 was cancelled by the complainant by his letter dated 6-9-89.

But subsequently the complainant executed a second agreement for sale with the opposite party for purchase of a smaller second floor flat at and for a price of Rs. 80,000/- although the opposite party has contended that a Ground Floor Flat was agreed to be sold to the complainant. It is noted that although the second agreement was executed after first agreement being cancelled by letter dated 6-9-89 of the complainant the date of execution of second agreement for sale is likely to be made after 6-9-89 but the copy of the second agreement for sale is also dated 9-8-88 wherein the date of delivery of possession of the flat has been incorporated on or about March, 1991.

SO if we take up the month of March 1991 is the turning point of our discussion the matter shall be easier to deal with. Admittedly in the second agreement there is no clause for payment of escalation charges and in the said agreement the question of installment payment for the price of the flat also does not arise in view of the fact that there is already excess payment of Rs. 30,000/- than the price of the flat of Rs. 80,000/-. It is also admitted that the excess payment of Rs. 30,000/- was returned to the complainant by 3 cheques dated 21-1-90, 7-4-91 and 10-4-91 which were all dishonoured by the Bank of the opposite party due to non-availability of funds. As per condition of second agreement the opposite party ought to have delivered possession of the flat by March 1991 and due to failure and commission on the part of the opposite party to deliver flat within March 1991 which is definitely deficiency in service as per provisions of Consumer Protection Act, 1986 by way of violation of the contractual obligation arising out of the second agreement for sale thus enjoins liability upon the opposite party for payment of interest and compensation to the complainant. The decisions in the case of A.P. Housing Board v. S.K. Ahluwalla reported in I (1992) CPJ 64 (NC) and of M.K. Gupta v. Lucknow Development Authority reported in the same volume of CPJ at page 66 both the judgments delivered by the National Commission fully supports the case of the complainant. As per principles laid down in those cases this Commission has absolute power and full jurisdiction to entertain this dispute. On the other hand the decisions cited by the opposite party once the case of Mrs. Vinodini Bajpai v. Rajya Krishi Utpadan Mandi Parishad reported in I (1991) CPJ 169 (NC) and the other case reported in AIR 1989 SC 1034 have no nexus with the present case. In the said two cases the disputes were between the Promoter and the Contractor for construction of the building. In the former case National Commission held that the said dispute was for settlement of accounts and payment thereof of a construction of a building by a contractor. Similarly the decision reported in AIR 1989 SC 1034 it has decided that in view of clause for payment of escalation charges in the agreement between the Promoter and Contractor the escalation charges of full consideration in advance by the opposite party. So the ratio of those decisions do not apply in the present case in-as-much as that here the relationship of the complainant and the opposite party, is that of a buyer and Promoter for purchase of a flat for consideration which is fully paid in advance even leaving a balance of Rs. 30,000/- refundable to the complainant by the opposite party.

WE do not agree with the view of the opposite party that as the complainant has not taken steps under Section 138 of N.I. Act after bouncing the cheques of the refund money, he is barred to agitate his grievance before this Commission and that claim of refund of Rs. 30,000/- is barred by limitation. With regard to dispute of delivery of Second Floor Flat and Ground Floor Flat, by careful scrutiny of the agreement we are of opinion that the agreement was for 2nd floor flat. In the light of aforesaid discussion we hold that the complainant is entitled to get the delivery of possession of a flat at once forthwith to the refund of Rs. 30,000/- paid in excess of consideration money of Rs. 80,000/- for the flat and interest @ 18% per annum on Rs. 1,10,000/- from April 1991 until delivery of the flat to the complainant and to compensation on account of harassment, mental agony and torture suffered by the complainant due to failure of the opposite party in handing over possession after full payment was made. So we direct the opposite party to handover possession of a flat in the 2nd floor of the building complete in all respects as per agreement and to refund the sum of Rs. 30,000/- to the complainant.

WE award the interest @ 18% per annum of Rs. 1,10,000/- on and from April 1991 until delivery of the flat.

WE also award the sum of Rs. 10,000/- as compensation on account of harassment, mental agony and torture suffered by the complainant due to failure of the respondent in handing over possession inspite of full payment was made for the flat. The opposite party to comply this order within a month from the date of communication of this order in default the penal action will follow as per provisions of Section 27 of the Consumer Protection Act. Complaint allowed.