Sambhunath Bhattacharjee vs RAMESWAR BANERJEE

-THIS is an appeal directed against the judgment and order of the Howrah District Consumer Forum dated 27.5.2002 passed in HDF Case No. 76/2002 under which the complaint filed by Sri Rameshwar Banerjee (the present respondent No. 1) was allowed by the Forum on contest with cost directing the O.P. to pay to the complainant Rs. 1,80,000/- by way of refund of the consideration money along with interest @ 18% p.a. with effect from September, 2001 to April, 2002 and also damages to the extent of Rs. 32,000/- including monthly rent and interest that had been paid by the complainant to the O.P. and also to pay litigation cost of Rs. 2,000/-. The Forum also directed the O.P. to pay the amount within a period of one month from the date of that order, failing which the complainant would be entitled to realise further interest @ 18% p.a. on the awarded sum with effect from the date on which one month would expire upto the date of actual payment.

BEING aggrieved by this order the O.P. Sambhunath Bhattacharjee has preferred this appeal challenging the same as erroneous, illegal and liable to be set aside. The complainant''s case in short was that he entered into an agreement dated 9.5.2001 with the O.P. to the effect that the O.P. would deliver in his favour a self-contained flat of the area of 425 sq. ft. at premises No. 30/1/3, Rammohan Mukherjee Lane, Shibpur, Howrah at a price of Rs. 2,60,000/-. The complainant paid Rs. 1,80,000/- to the O.P. towards this consideration money after taking loan from the HDFC, but ultimately the flat was not handed over to him and on inquiry he came to know no such flat was available to the O.P. for being transferred to him. Hence he filed this complaint before the Consumer Forum alleging deficiency in service on the part of the O.P. and claiming refund of the said amount of consideration money already paid along with interest and other allied benefits. The O.P. contested the case by filing a written objection denying the material allegation thereof and contending inter alia that the complainant actually paid to him a sum of Rs. 80,000/- only but he granted receipt for Rs. 1,00,000/- at the request of the complainant when he took the plea that this was required for the purpose of clearance of HDFC loan and other official purpose and he promised to pay the balance amount of Rs. 20,000/- within a short period and the complainant in good faith believed his word to be true and granted the receipt for Rs. 1,00,000/- instead of Rs. 80,000/-. The complainant thereafter never paid the balance amount of Rs. 20,000/- to him although he issued notice by registered post with A/D dated 13.9.2001 asking him to pay that amount. He was willing to implement the terms and conditions as settled between the parties under the agreement dated 9.5.2001 but for the failure of the complainant to pay of the balance amount due. In paragraph 8 written objection, however, the O.P. has averred that the complainant gave him Rs. 1,60,000/- only as price of the flat but he was falsely claiming he had given Rs. 1,80,000/-. Thus the O.P. was ready to deliver the possession of the flat in question to the complainant if he paid the balance amount of Rs. 1,00,000/- along with interest.

After hearing both and considering the materials on record the Forum below has come to the conclusion that the complainant had been able to prove his alleged payment of consideration in full (vide LCR-Exts. 3 to 18 which are Receipts showing payment of various sums made by the complainant to the O.P. on different dates in instalments). Since the complainant has performed his part of the contract the O.P. was under an obligation to discharge his part and to deliver vacant position of the flat in question as agreed upon (vide the agreement-Annexure A - which is an undisputed document) the Forum has held that since the O.P. was not expressing his willingness or readiness to deliver the flat in favour of the complainant the complainant''s relief was to get refund of the entire consideration money which he had already paid and accordingly he has passed the afore-mentioned order.

AFTER perusing the materials on record we find that the appellant - O.P. has failed to discharge his onus of proving his allegation that he granted a receipt in favour of the complainant-respondent for Rs. 1,80,000/- although actually he received Rs. 1,60,000/- from the complainant by way of payment of the consideration money. Such a plea sounds unnatural and absurd and, therefore, the burden is heavily placed on the shoulder of the O.P. who asserts such a proposition. But curiously enough from the side of the O.P. no cogent evidence is forthcoming in support of such a story. The learned Advocate for the appellant has contended that a civil suit is pending before the Civil Court and during the pendency of that civil suit this consumer case could not be taken up for hearing and it can be taken up for hearing only after dismissal of the civil suit. But as regards this point it is to be observed that on a perusal of the copy of the plaint of that civil suit being TS No. 56/2002 of the Court of Civil Judge Jr. Division, Howrah, we find that in that suit the prayer that has been made by the plaintiff, Sambhunath Bhattacharjee (present appellant), is for a declaration that the plaintiff is owner and occupier in respect of the suit property and defendant has no right or authority to take possession in the suit property without payment of all dues and for order of permanent injunction restraining the defendant from taking forcible possession of the scheduled property without payment of outstanding dues to the plaintiff. Therefore, it is needless to point out that the said civil suit has no bearing upon the hearing of the present appeal, or, for that matter, the complaint case filed before the Forum wherein the Forum has passed an order directing refund of the consideration money already paid by the complainant-respondent in view of the fact that he has no chance of getting possession of the flat in question within a reasonable time. The question to be determined by us is whether this order of the Forum below is justified. We are not dwelling upon the question whether the complainant - respondent should get possession in the disputed flat or should have any right, title or interest in respect thereof and, therefore, there will be absolutely no scope for any conflict between the decision to be taken by the Civil Court and that of the Consumer Forum or this Commission. So the pendency of the civil suit will not create any bar to the hearing of this matter by the Consumer Forum or, for that matter, by this Commission. Coming to the question of payment of consideration money we have scrutinised the materials on record and found that the complainant has already paid a sum of Rs. 1,80,000/- (receipts showing payment of Rs. 1,40,000/- are annexed to the written objection filed by the respondent and xerox copies of letters as written by the appellant to the HDFC Bank dated 3.12.2001 and also the letter of the Bank dated 1.11.2001 filed by the respondent to prove this fact). That being so and the O.P. - appellant having admittedly cancelled allotment vide his said letter dated 3.12.2001 it goes without saying that he did not comply with the terms of the agreement under which he was bound to deliver vacant possession of the said particular flat in favour of the respondent. The appellant has totally failed to make out any justification for such failure on his part to observe the terms of the agreement. Therefore, the respondent who paid such a big sum in compliance of the terms of the agreement was deprived of the benefit under the agreement and under such circumstances the flat being not made available to him he is certainly entitled to get back what he paid to the appellant. Therefore, we do not find any error or fault in the impugned judgment under which the appellant had been directed to refund the amount already taken from the respondent along with interest and damages, etc. as has been awarded thereunder. In the result, therefore, we do not find any reason to interfere with the impugned judgment which be affirmed and the appeal be dismissed on contest with cost of Rs. 1,000/- payable by the appellant to the respondent. Send down the SCR to the Forum at once. Appeal dismissed.