Saghar Ahsan vs Alice Lonappan

THE appeal is directed against the judgment and order dated 24.12.2000 passed by the South 24 Parganas District Consumer Disputes Redressal Forum in D.F. Case No. 59 of 2000 under which the Forum allowed the complaint in part on contest with cost of Rs. 500 and directed the O.P. No. 1 to refund the amount already taken by them from the complainant amounting to Rs. 2,20,000 together with interest @ 12% p.a. from the date of receipt of the money by the O.P. No. 1 till the date of payment.

BEING aggrieved by that order the O.Ps., namely, Saghar Ahsan has preferred this appeal challenging that order as erroneous, illegal and unsustainable and praying for an order setting aside the same. The case of the complainant (present respondents, Smt. Alice Lonappan and others) was that he entered into an agreement with the O.Ps. on the terms and conditions that on payment on the consideration money of Rs. 14,06,250, the O.Ps. were to deliver them a new and vacant flat as described in the schedule of agreement. Accordingly, the complainant paid Earnest Money of Rs. 2,20,000 to the O.Ps. But inspite of waiting for more than the stipulated period, he did not get delivery of any such flat and then he repeatedly requested the O.Ps. to observe the terms and conditions of the agreement strictly, but all in vain. Then he filed the case before the District Consumer Forum.

THE O.Ps. contested the case by filing a written objection contending inter alia that the case could not be maintainable under the law unless and until the complainant would pay the required stamp duty on the Deed of Agreement in view of the settled position of law enunciated by the High Court of Kolkata in the judgment reported in 1999 II CHN Page/369.

AFTER hearing both the sides and considering the materials on record as well as the legal position, the Forum passed the above -mentioned order allowing the complaint. Mr. P.K. Basu, the learned Advocate for the appellant has argued before us that the agreement on the basis of which the complainant -respondent has filed the case cannot be relied upon until and unless it is properly stamped under the provisions of the Stamp Act and since the respondent has not made any attempt for payment of such stamp duty so far, the agreement cannot be allowed to be admitted into evidence and no relief can be admissible to the respondent on the basis of such insufficiently stamped Deed of Agreement. He also invokes the Courts jurisdiction for passing an order impounding the Deed of Agreement.

IT goes without saying and it is practically an established position that the complainant -respondent made payment of Rs. 2,20,000 to the O.Ps. as Earnest Money in compliance of the terms of the agreement. The appellant remains silent as to his failure to comply with the terms of the agreement and constructing the flat, in dispute, or delivering it to the respondents. His only contention seems to be on the score of impounding of the Deed of Agreement. In our view, the above -mentioned judgment of the Honble High Court of Kolkata would not be applicable to such a case. Under the relevant provisions of the Stamp Act, a document has to be impounded only when the party producing the same before the Court wants to rely upon its terms. In the present case, it may be noted that the complainant -respondent practically does not seek any positive remedy on the basis of any terms or conditions of the Deed of Agreement. Had he made a prayer in the complaint for getting delivery of the flat or for an order directing the appellant to complete construction of the flat and to deliver it in their favour, then of course it could be said that they are very much relying upon the terms and conditions of the agreement to get their relief prayed for. But having carefully perused the prayer of the complainant in the complaint, which is for refund of the money having already been paid and nothing more in terms of the Deed of Agreement, we are driven to the conclusion that here the complainant has not prayed for any relief which is dependent on the terms and conditions of the contract. On the other hand, it seems to be a case of simple refund of money paid by the complainant to the O.Ps. Therefore, from that angle vision if we consider the case, we have no doubt and hesitation to come to the finding that the above -mentioned ruling or for that matter the provisions of the Indian Stamp Act will not be attracted to the present case.

THEREFORE , we are to only ascertain whether the alleged payment of Rs. 2,20,000 is established. The complainant has filed the receipts showing such payment and there has been no denial on the part of the O.Ps. against such a contention made by the complainant in his complaint. Therefore, the alleged payment of this money is practically admitted and firmly established. This is also established as it is practically admitted that the purpose, for which such payment was made has not been given effect to. Although the O.Ps. took such money from the complainant, they have not delivered the service or the goods against such payment. Therefore, the obvious conclusion will be that the complainant is entitled to get refund of the money so taken by the O.Ps. In that view of the matter, we do not find any fault in the finding of the Forum below. However, as regards the rate of interest which the Forum has awarded, namely 12% p.a., we are of the view that it is slightly on the higher side and in the interest of propriety and equity, the rate of interest should be reduced to a little extent. We consider 10% p.a. as quite appropriate rate in this regard. Accordingly, it is ordered that the appeal be allowed in part on contest without, however, any cost. The judgment and order of the Forum under challenge be affirmed subject to the modification that the rate of interest, which has been imposed on the principal amount of Rs. 2,20,000, will be @ 10% (ten per cent) p.a. instead of 12% p.a., other parts of the order remaining intact. Appeal partly allowed.