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ORISSA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, CUTTACK
Hon’ble Mr. Justice R.K. Patra, President & Mrs. Basanti Devi, Member
PROF. MADHABANANDA DAS —Petitioner
versus
SHREE ANNAPURNA BUILDCON LTD. —Opposite Party
C.D. Case No. 61 of 2004—Decided on 20.6.2006
Counsel for the Parties :
For the Petitioner:M/s. A.K. Samal & Assoc., Advocate.
For the Opposite Party :M/s. M.R. Mishra & Assco., Advocate.
The court can order a refund and compensation under the Consumer Protection Act for deficiency in service.
Headnote:
Consumer Protection Act - Refund of Payment - The court directed the opposite party to refund the complainant Rs. 13,00,000 with interest and pay compensation for mental agony and harassment due to deficiency in service.
Fact of the Case:
The complainant, a Professor, urgently needed a flat and applied for one being constructed by the opposite party. He paid a total sum of Rs. 13,00,000 towards the cost of the flat but the opposite party failed to deliver possession.
Finding of the Court:
The court found that the opposite party illegally retained the money and failed to deliver the flat, causing mental agony to the complainant. As a result, the court directed the opposite party to refund the amount with interest and pay compensation.
Issues: Refund of payment, deficiency in service, compensation for mental agony
Ratio Decidendi: The opposite party's failure to deliver possession of the flat despite receiving 90% of the cost constituted deficiency in service, leading to the court's decision to order a refund and compensation.
Final Decision: The court allowed the complaint and directed the opposite party to refund Rs. 13,00,000 with interest and pay compensation for mental agony.
Mr. Justice R.K. Patra, President—In this complaint filed under Section 17 of the Consumer Protection Act, 1986, the complainant has asked for refund of Rs. 13,00,000 with interest @ 18% per annum. He has also claimed compensation of Rs.10,00,000 for the mental agony and harassment caused to him due to deficiency in service by the opposite party.
2. The complainant is a Professor and Head of Department of Computer Science and Engineering in KIIT, the Deemed University. He was urgently in need of a flat for his family. He accordingly applied for it in ‘Annapurna Sarthak Complex’ being constructed by the opposite party. Allotment letter was issued by the Director of the opposite party indicating that estimated cost of a three bedroom flat with super built-up area of 1368 sq. ft. would be Rs. 15,11,000. On being asked by the Director of the opposite party, the complainant deposited Rs. 50,000 on 1.1.2003. After some days, he further deposited Rs. 50,000 on being asked by the opposite party. On payment of the aforesaid amount, an agreement was executed between the complainant and opposite party on 20.1.2003. In the agreement, the complainant could later discover that one M/s. Sarthak Builders Private Limited was mentioned as the owner and the opposite party was described as promoters/builders and the complainant was described as the purchaser. Surprisingly, M/s. Sarthak Builders Private Limited had not signed the agreement. The opposite party by taking advantage of the complainant’s innocence duped him. In the meantime, he had applied for loan from the H.D.F.C. Limited, Bhubaneswar. On completion of necessary formalities and documentation, the H.D.F.C. Limited released Rs. 6,00,000 as the first instalment in favour of the opposite party on 27.1.2003. The complainant was anxious to get the flat from the opposite party. Believing the opposite party, the complainant paid a total sum of Rs. 13,00,000 towards the cost of the flat. Details of payment are as follows:
1.
Ist payment
Rs.
50,000
on
1.1.2003
2.
2nd payment
Rs.
50,000
on
18.1.2003
3.
3rd payment
Rs.
6,00,000
on
27.1.2003
4.
4th payment
Rs.
2,00,000
on
22.2.2003
5.
5th payment
Rs.
4,00,000
on
4.2.2004
Total
Rs.
13,00,000 (Thirteen lakhs)
From the above, it may be seen that even though the opposite party received 90% of the cost of the flat, it failed to deliver possession. In the circumstances, the complainant requested the opposite party to refund Rs. 13,00,000, but it did not respond. Finding no other way, he filed the complaint.
3. The opposite party has filed counter denying the claim.
4. At the time of hearing, Counsel for the complainant submitted that he is no more interested for the flat. In paragraph 12 of the complaint, the complainant has asserted that he paid Rs. 13,00,000 on five different occasions. The opposite party has vaguely denied such assertion. Annexure 4 and Annexure 5 would unmistakably prove that the complainant paid a total sum of Rs. 13,00,000 to the opposite party. There is no dispute that the opposite party has failed to give delivery of the flat. In the circumstances, the opposite party is bound to refund Rs. 13,00,000 to the complainant on request. Because of illegal retention of money, the opposite party is liable to pay interest on the said amount. Having deposited 90% of the cost of the flat without any result, he must have undergone mental agony, for which he is entitled to be adequately compensated.
5. For the reasons mentioned above, we direct the opposite party to refund Rs. 13,00,000 with interest @ 9% per annum from 8.6.2004, the date of the letter, in which he asked the opposite party to refund the amount. The opposite party is liable to pay compensation of Rs. 1,00,000. We order accordingly.
6. The whole amount payable by this order, shall be paid by the opposite party to the complainant by 16.8.2006, failing which action under Section 27 of the Consumer Protection Act, 1986 shall be taken against him.
7. The complaint is allowed.
Mrs. Basanti Devi, Member—
