SAMBHUNANDY vs MONOJ CHOWDHURY & 2 ORS.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 19.08.2016, passed by the West Bengal State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in First Appeal No. A/19/2015, "Monoj Chowdhury vs. Sambu Nandy & Ors.", vide which, while allowing the appeal, the order dated 26.12.2014, passed by the District Forum South 24-Parganas in consumer complaint No. 269/2014, filed by the present respondent, was set aside.

The facts of the case are that the complainant/respondent Monoj Chowdhury entered into an agreement for sale with the petitioner Sambhu Nandy to purchase a flat, measuring about 500 sq. ft. of built up area, premises No. 15/1/17B Jhil Road, Kolkata for a consideration of 11,00,000/- @2,200/- per sq. ft. The complainant paid a sum of 5,00,000/- by cheque and it was agreed that within three months, the construction of the building shall be completed, possession shall be delivered and registered deed shall be executed by the petitioner after receiving the balance amount of 6,00,000/- from the complainant. It was also agreed that if the OPs failed to deliver the possession within 6 months, they were liable to refund the entire deposited amount alongwith compensation of 2 lakhs. It was stated in the consumer complaint that despite receiving payment of 5 lakh from the complainant, the OPs did not start the construction work and delayed the matters under different pretext. Thereafter, the petitioner refunded a sum of 1,50,000/- to the complainant on different dates in the year 2013. Alleging deficiency in service on the part of the OPs, the complainant filed the consumer complaint, seeking directions to the petitioner to complete the construction and deliver possession of the property, or to refund the amount deposited with interest @12% p.a. The complainant also requested for a compensation of 5 lakh on account of mental harassment and 50,000/- as cost of litigation.

The complaint was contested by the petitioner/OP-1 by filing a written statement before the District Forum, saying that there was a joint venture between the OP-1 & OP-2 & 3 according to which, the construction of the building was to be completed within 18 months. However, the OP-2 & 3 did not give the possession of the premises to OP-1 for the said construction and also did not get the building plans etc. sanctioned. The OP-2 & 3 also stated in their separate replies that sanctioned plan could not be obtained from the Municipal Corporation for construction of the building. The petitioner also stated in his written reply that he started making payment to the complainants, but due to lack of funds, he could not refund the whole money.

The District Forum after taking into account the averments of the parties, observed that the complainant had accepted the refund of 1,50,000/- out of the consideration amount paid and hence, he ceased to be a consumer. Being aggrieved against this order, the complainant filed an appeal before the State Commission, which was allowed vide impugned order and the petitioner was directed to refund the balance amount of 3.5 lakh alongwith interest @9% p.a. from the date of receipt of the amount till realisation within one month from the date of the order. Being aggrieved against the said order, the OP-1 Builder is before this Commission by way of the present revision petition.

During hearing, it was contended by the learned counsel for the petitioner that he was not able to start the construction of the project, as the possession of the land could not be obtained by him from OP-2 & 3, and the building plans were not sanctioned. He stated that the petitioner was ready to make such payment in 4 instalments. He should also be permitted to refund the amount without interest. The learned counsel also stated that the complainant was not a ''consumer'' under the provision of the Consumer Protection Act, 1986.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

The admitted facts of the case are that the complainant booked an apartment with the petitioner/builder and made a part payment of 5 lakh to him under the assurance that the property shall be delivered to him within a period of 3 months, after getting the balance amount of 6 lakhs from him. However, the petitioner was not able to start the construction work, as he was unable to get the possession of the land in question and also, the building plans could not be sanctioned by the Municipal Corporation. The petitioner has himself admitted in his written reply before the District Forum that he refunded a part amount of 1,50,000/- to the complainant, but was unable to refund the rest of the amount due to lack of funds. Under the given circumstances, it is quite evident that the order passed by the State Commission does not suffer from any illegality, irregularity or jurisdictional error. The petitioner is duty bound to return the balance money deposited by the complainant forthwith, alongwith interest at the rate allowed by the State Commission. In case, the petitioner wants to pay the money in instalments, the point can be raised during the execution proceedings before the parties and the executing court can take a suitable decision. However, the direction to refund the balance amount alongwith interest made by the State Commission is valid in the eyes of law and is upheld.

It may also be stated that the plea taken by the petitioner that the complainant does not come under the definition of ''consumer'' is without any legal basis. The issue of ''housing construction'' comes under the definition of service as provided in section 2(1)(o) of the Consumer Protection Act, 1986. The complainant having booked a property in the building to be constructed by the petitioner does come within the category of ''consumer''. It is not understood as to how the District Forum observed that after accepting the refund of 1,50,000/-, the complainant ceases to be a consumer. The District Forum was expected to show a correct appreciation of law and facts while dealing with the case. From the foregoing discussion, it is held that the present revision petition is without any force and the same is ordered to be dismissed in limini. The order passed by the State Commission is upheld. There shall be no order as to costs.