SAMBHUNATH BHATTACHARJEE Vs. RAMESWAR BANERJEE

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.