AROOP MUKHERJEE Vs. SWITZER INSTRUMENT LTD

JUDGEMENT

(1.) This first appeal is directed against the majority decision dated 17th November, 1993 passed by the West Bengal State Consumer Disputes Redressal Commission at Calcutta allowing the complaint and directing the opposite party to pay a sum of Rs. 2,30,000 / together with interest at the rate of 18% per annum effective from 15th November, 1991 until such refund of the said amount beside a payment of cost of Rs. 25,000/-. The minority view also allowed the complaint and directed the refund of Rs. 2,30,000/- together with interest @ 12% per annum from 12.11.91 till the date of refund besides payment of Rs. 1 lakh compensation and a payment of Rs. 7,000/- as costs.

(2.) The facts lie in a narrow compass and may be noticed. The complainant had entered into an agreement with the opposite party on 6.8.90 for purchase of flat on second floor at 68/ 1F, Puma Das Road, Calcutta-29 measuring approximately 950 sq. ft. as per sanctioned plan. As per Clause 3 of the said agreement the complainant had paid to the opposite party a sum of Rs. 1,30,000/- as deposit and the second payment of Rs. 1,30,000/- was payable by 7th September, 1990. Time is essence of the contract. The balance of the amount was to be paid as per the progress of the building in instalments of 20% of the total price approximately every five months from date and the last payment was to be paid 30 days prior to possession. Clause 13 of the agreement provided that in case for any reason whatsoever the opposite party is unable to allot the said flat to the complainant, then all deposit would be refunded within 90 days of the notice. The complainant had made first deposit by demand draft No. 000686 dated 26.7.90 for Rs. 1,30,000/- as mentioned in the said agreement and also paid Rs. 1,30,000/- within the stipulated period. According to the complainant there was no progress at all with regard to the construction of the building and there appeared to be no possibility of completing the said building and handing over the flat to the complainant within the stipulated time. The complainant thereafter sent notices dated 5th October, 1991 and 25th October, 1991 treating the agreement as cancelled and called upon the opposite party to refund the deposit of Rs. 2,60,000/- on the failure of the opposite party in completing the construction and handing over possession within the stipulated time. The opposite party did not reply to the notices sent. The opposite party, however, paid a part payment of Rs. 30,000/- by cheque No. 564140 dated 30.1.92 which was dishonoured but subsequently this amount of Rs. 30,000/ was refunded to the complainant in the year 1992. The complainant filed the complaint before the State Commission alleging deficiency in service on the part of the opposite party in constructing the proposed building and handing over vacant possession of the flat and claimed the relief of the refund of the deposit amount of Rs. 2,30,000/- with interest at the rate of 24% per annum from 12.11.91 till the date of refund besides the compensation of Rs. 1 lakh and costs of Rs. 70,000/-.

(3.) Notice of the filing of the complaint was duly served on the opposite party who entered appearance. However, no written version was filed within the prescribed period of 30 days. The opposite party failed to appear on the subsequent date of hearings. The State Commission considered the complaint, the documents annexed to the complaint and the affidavit in support thereof and found that there was no material on record to disprove the version of the complainant. The State Commission allowed the complaint and granted the relief's noticed above.