Ishan Chandra Das, President

This appeal has been directed against the judgment and order dated 09-11-2016 passed by Ld. DCDRF, North 24-Parganas at Barasat in CC/04/2016. While disposing of the said complaint case Ld. DCDRF allowed the same on contest against the OP with cost, directed the OP to pay a sum of Rs. 4,80,000/- (Rupees four lakh eighty thousand) and Rs. 3,000/- (Rupees three thousand) towards compensation by 14-12-2016 to the complainant failing which the decretal amount i.e. Rs. 4,80,000/- (Rupees four lakh eighty thousand) shall carry interest @ 4% from 14-12-2016 and the OP shall have to pay a sum of Rs. 50/- for each days fault as punitive damage which shall be deposited before the State Welfare Fund.

Being aggrieved by order the present appeal has been preferred by the OP.

Briefly stated, the case of the complainant/respondent (and hereinafter referred to as the complainant) was that the complainant entered into an Agreement for Sale with the OP/appellant (and hereinafter referred to as the OP) on 30-09-2014 for purchasing a flat for a consideration of Rs. 15,05,000/- (Rupees fifteen lakh five thousand) paid a sum of Rs. 5,00,000/- (Rupees five lakh) as advance. The OP assured the complainant to complete construction of the flat and to hand over possession of the flat within eight months from the date of execution of the said agreement on receipt of the balance consideration from the complainant but on expiry of eight months and five extra months the complainant did not get possession of the flat. The complainant was in hope of keeping possession of the shop room within the specified time but due to willful negligence and deficiency in service by the OP, he was not delivered the flat within the timeframe. The complainant on several occasions wanted to contact the OP with a view to getting back the money or to get possession of the flat but the OP did not respond properly. Thereafter the complainant sent a letter to the OP on 29-07-2015 but the OP did not reply to such letter. Thereafter on 29-08-2015 the complainant sent another letter to which the OP replied expressing that the flat was ready for registration. The complainant paid visit to the said plot and noticed that the work was not fully done, as per the specification of the agreement dated 30-09-2014, which amounted to ‘deficiency in service’ and as well as ‘unfair trade practice’ and that prompted the complainant to take recourse of the Assistant Director, Consumer Affairs and Fair Business Practice, Barrackpore on 14-09-2015 but the OP did not appear before the said Authority which ultimately prompted the complainant to take recourse of the DCDRF concerned.

The OP filed a written version to contest the complaint case and denied all the material allegations, as contained in the body of the application. Admitting the factum of Agreement for Sale dated 30-09-2014, the OP stated in his written version that pursuant to the said Agreement for Sale the Developer intended to sale a flat being 304 on the 3rd floor, measuring 700 sq. ft. super built up area together with undivided proportionate share of land comprising in holding no. 99/B, properly described in the 2nd schedule of the Agreement for Sale. The OP in his written version further stated that in terms of Agreement for Sale the complainant had to pay a sum of Rs. 15,05,000/- (Rupees fifteen lakh five thousand) towards consideration but the complainant failed and neglected to make such payment to the Developer as per terms and conditions regarding the mode of payment according to the Agreement but the Developer received only Rs. 5,00,000/- (Rupees five lakh) out of Rs. 15,05,000/- (Rupees fifteen lakh five thousand). The OP further stated that the Developer by letter dated 08-09-2015 assured the complainant to take possession of the flat upon deposit of the balance consideration of Rs. 15,05,000/- (Rupees fifteen lakh five thousand) and cost of extra work to the tune of Rs. 1,26,000/- (Rupees one lakh twenty six thousand) but the complainant failed to make such payment. Denying the cause of action as averred in the body of the application the OP ultimately prayed for dismissal of the complaint case and claimed that he never practised “unfair trade practice” or his action was never “deficient in giving service” to the complainant.

Now the point for consideration is – whether Ld. Trial Forum was justified in passing the order impugned.

Here agreement between the parties the terms of agreement etc. are not seriously disputed. The terms of agreement dated 30-09-3014 clearly manifested that the complainant intended to purchase the flat, as referred to in the 2nd schedule of the agreement and the construction would be subject to the conditions as referred to in schedule VI. Ld. Counsel for the respondent in course of argument admitted that his client paid only Rs. 5,00,000/- (Rupees five lakh) towards earnest money but the OP did not complete the construction within the stipulated time as provided by Article VI, Clause 7.1 (which is at page 34 of the file) where the following conditions were to be fulfilled by either of the parties and the same is quoted below:-

“In the event of any default on the part of the PURCHASER in making payment of the consideration amount and not any other amount as hereinbefore stated and/or in fulfilling and observing any of the other terms and conditions herein contained and on the part of the PURCHASER to be performed and observed, then in that event the DEVELOPER shall give 15 days’ notice in writing to that effect and in the event of the PURCHASER failing to comply with such requisition within the said period of 15 days and without prejudice to such other rights the DEVELOPER may have against the PURCHASER, this agreement shall forthwith stand terminated and all rights title interests claim or demand whatsoever and howsoever of the PURCHASER into or upon the said Unit and/or advances and deposits paid by the PURCHASER in terms of the agreement shall stand forfeited and/or extinguished and the DEVELOPER shall be entitled to deal with the said Flat/Unit as the absolute owner thereof as the DEVELOPER in his absolute discretion shall think fit and proper and the PURCHASER hereby consents to the same”.

Since the complainant did not comply with the conditions as enumerated in the agreement he cannot claim equitable relief rather in the given facts and circums

tances of the case he would be entitled to refund of earnest money paid to the Developer. Hence we dispose of the appeal by directing the OP herein to refund the amount of Rs. 5,00,000/- (Rupees five lakh) without any deduction since the OP could not complete the flat within the stipulated time. Accordingly we dispose of the appeal by directing the OP to refund the said amount (Rs. 5,00,000/-) to the complainant within 60 (sixty) days from the date of the order, but the other directions in the order dated 09-11-2016 including direction for payment of cost, interest or punitive damages etc. are set aside. Parties do bear their respective costs of Appeal. The appeal is thus allowed in part for finality of litigation.