NISHITH KUMAR CHATTERJEE Vs. BHASKAR MUKHERJEE

JUDGEMENT

(1.) 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.

(2.) The defence case is that the claim of the complainant is without jurisdiction in-as-much as the provisions under Sec.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/s. Rajya Krishi Utpadan Mandi Parisad, 1991 1 CPJ 169. 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 Sec.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 Sec.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

(3.) 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.