w w w . L a w y e r S e r v i c e s . i n



Dr. Sankar Kumar Mondal v/s Sunil Kumar Roy


Company & Directors' Information:- B K ROY PVT LTD [Active] CIN = U45100WB1955PTC022135

Company & Directors' Information:- H ROY PVT LTD [Strike Off] CIN = U33112WB1980PTC033128

Company & Directors' Information:- A C ROY & CO PVT LTD [Active] CIN = U51109WB1956PTC011739

Company & Directors' Information:- K K ROY PVT LTD [Strike Off] CIN = U51396WB1961PTC024954

Company & Directors' Information:- M K ROY CO LTD [Strike Off] CIN = U10200WB1948PLC017236

Company & Directors' Information:- S N MONDAL & CO PVT LTD [Active] CIN = U15520WB1987PTC042717

Company & Directors' Information:- A K ROY PVT LTD [Strike Off] CIN = U45202WB1948PTC017291

Company & Directors' Information:- SUNIL & CO PVT LTD [Active] CIN = U32109WB1984PTC037810

Company & Directors' Information:- SUNIL KUMAR PVT LTD [Strike Off] CIN = U17111RJ1985PTC003429

Company & Directors' Information:- D N MONDAL & CO PVT LTD [Strike Off] CIN = U51909WB1961PTC025048

Company & Directors' Information:- J N ROY & CO PVT LTD [Active] CIN = U36911WB1949PTC017614

Company & Directors' Information:- H C ROY & CO PVT LTD [Strike Off] CIN = U51109WB1951PTC019818

Company & Directors' Information:- S K MONDAL & CO PVT LTD [Strike Off] CIN = U51909WB1954PTC021581

Company & Directors' Information:- SANKAR CORPORATION PRIVATE LIMITED [Not available for efiling] CIN = U74999PY1959PTC000034

Company & Directors' Information:- A B ROY & CO PVT LTD [Strike Off] CIN = U60210WB1948PTC016734

Company & Directors' Information:- ROY & CO PVT LTD [Strike Off] CIN = U74900WB1957PTC007042

    First Appeal No. A/263/2018

    Decided On, 26 March 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT
    By, THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER & THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, MEMBER

    For the Appellant: Barun Prasad, Subrata Mondal, Sovanlal Bera, Pradosh Kiran Majumder, Advocates. For the Respondent: Siddhartha Sankar Ghoshal, Advocate.



Judgment Text

Samiksha Bhattacharya, Member

This Appeal u/s 15 of C.P. Act, 1986 has been filed by the Appellant /OP challenging the judgment and order dated 13.02.2018 passed by Ld. DCDRF, Hooghly in Case No. CC/43/2015, where the complaint case was allowed with the direction upon the OP to return the advance amount i.e., Rs. 5,50,000/- along with interest @ 10 % p.a. since the date of last payment i.e., 27.03.2005 till the payment within 45 days from the date of passing this order. The Ld. Forum also directed the OP that in the event of failure to comply the order as aforesaid OP shall pay cost @ 100/- for each day delay on expiry of the stipulated period to be deposited in the Consumer Legal Aid.

Aggrieved by and dissatisfied with the aforesaid order the OP of the original compliant case filed the instant appeal.

Brief facts of the case are that the Complainant/ Respondent entered into an Agreement for Sale with the Appellant /OP on 22.08.2004 in respect of a shop room at the ground floor measuring area of 250 sqft. situated under Mouza / Sheoraphully, J.L. No. 6 having its R.S. Khaitan No. 930 R.S. Plot No. 3956 and 3960 corresponding to L.R. Khaitan No. 7147 , L.R. Plot No. 3092 and 5443 , at present after mutation plot No. 6891 and plot No. 6892 under Baidya Bati Municipality Premises No. 75 (44) , Nona Danga Road , / Sheoraphully under A.D.S.R. – Serampore , District – Hooghly. The Complainant / Respondent agreed to purchase the schedule shop room at a total consideration of Rs. 7,00,000/- and out of Rs. 7,00,000/- the Complainant already paid Rs. 6,00,000/- by cash and cheques as advance amount . As per agreement the Complainant agreed to pay the balance consideration of Rs. 1,00,000/- at the time of registration and before delivery of the shop room in question. Complainant was always ready and willing to purchase the said shop room by paying the balance consideration amount but OP has intentionally avoided to execute and register the Sale Deed of the shop room. The OP neither delivered the possession of the schedule shop room nor execute and register the Sale Deed of the same. Finding no other alternative Complainant sent the legal notice on 27.03.2014 asking the OP to execute and register the Sale Deed of the shop room in favour of the Complainant but OP did not pay any heed. Thus the Complainant has suffered the loss of Rs. 2,00,000/- for his mental agony and anxiety and he has also suffered a financial loss of Rs. 4,00,000/- for not being able to open his proposed business in time. Hence the Complainant filed the compliant case before the Ld. DCDRF, Hooghly praying for Rs. 6,00,000/- for his sufferings along with litigation cost of Rs. 50,000/- .

The sole OP / Appellant appeared before the DCDRF, and filed the W.V. denying the allegation inter alia stated that Complainant entered into an unregistered Agreement for Sale with the OP on 22.08.2004 in respect of the schedule property mentioned in the said Agreement. Appellant/OP also admitted in the W.V. that Rs. 7,00,000/- was the agreed amount for total consideration in respect of the purchase of the shop room in question but it was denied that Rs. 6,00,000/- was paid by the Complainant. OP admitted in their W.V. that they received only Rs. 3,50,000/- from the Complainant . Complainant gave a cheque to the OP which was bounced due to insufficient fund. Other allegations made by the Complainant against the OP are denied. The legal notice dated 27.03.2014 was sent only for the purpose of creating cause of action. OP replied to the same by their Advocate’s letter dated 08.05.2014. By a letter dated 04.04.2009 Complainant informed the OP that he was unable to purchase the above mentioned shop room for his financial condition and gave permission to sell the shop room to the 3rd party with request to refund the advance amount after selling the said shop room to the 3rd party. Hence, the complaint case is liable to be dismissed with cost.

Ld. Lawyer for the Appellant drew our attention by mentioning the ‘Agreement to return the shop room’ to the OP written in Bengali ( running page -30) . From that document it is clear that Complainant could not purchase the shop room upon payment of balance consideration amount in time. Therefore, the Complainant requested the OP to sell out the shop room to any 3rd party since he could not able to give the balance amount for his financial stringency . He also agreed to take back the advance amount after selling the shop room to the 3rd party.

Ld. Lawyer for the Appellant also drew out attention that in the judgment passed by the Ld. Forum is misconceived and without corroborating the proper money receipt. The Ld. Forum has presumed that as per agreement the OP took a sum of Rs. 2,00,000/- from the Complainant on 27.08.2004 but neither any memo of consideration nor any money receipt has been filed to that effect. Therefore, we cannot presume that Rs. 2,00,000/- was paid on the date of Agreement for Sale. The Complainant / Respondent filed the four number of money receipts totaling to amount Rs. 3,00,000/- . Complainant paid Rs. 50,000/- on 25.08.2004 , Rs. 50,000/- on 03.02.2005 , Rs. 1,00,000/- on 20.03.2005 and Rs. 1,00,000/- on 14.03.2005 . Therefore, we find the money receipts amounting to Rs. 3,00,000/- only . But in the W.V. OP has admitted that they received Rs. 3,50,000/- . At the time of hearing Ld. Lawyer of the Appellant submitted that they received Rs. 50,000/- by cash and no money receipts has been filed to that effect. Moreover, OP is ready to refund Rs. 3,50,000/- to the Complainant.

Ld. Lawyer for Respondent/Complainant could not show any document towards payment of Rs. 2,00,000/- on the date of Agreement . Moreover, Complainant could not deny the fact that he signed an agreement with the OP by giving the permission to sell the shop room to the 3rd party admitting his financial stringency. He also agreed to take back the paid amount after selling the shoproom to any 3rd party.

Upon hearing of the Ld. Counsel appearing for both sides and on careful scrutiny of the record , there is no dispute that Complainant paid Rs. 3,50,000/- to the party . Though the Complainant concealed the material facts and filed the complaint case before the District Forum for

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execution and registration of the shop room , we are in the view that for finality of litigation as well as for the principle of natural justice Complainant cannot be debarred to get his advance amount paid to the OP. In view of the above discussions the Appeal is allowed in part and we modify the impugned order passed by Ld. DCDRF, in following manner . The OP/Appellant is directed to refund the advance amount of Rs. 3,50,000/- along with simple interest @ 5% p.a. from the date of cancellation i.e., 04.04.2009 till full refund within 60days from the date of this order. The cost of the appeal will be borne by the respective parties. The Appeal is thus disposed of.
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