IMPORTANT POINT
When the terms of the agreement are not complied with, the complaint is liable to be dismissed.

The above said appeals have been filed by both the parties i.e. the appellant – Subrata Kumar and the respondent – Esenel Construction against the order of the State Commission dated 24.03.2011 passed by West Bengal State Commission (in short, the State Commission), whereby the complaint of the appellant in Appeal No. 224 of 2011 was partly allowed and following order was passed:

“Hence it is ordered that the petition of complaint stands allowed in part on contest against the OPs with cost of Rs.10,00/0/- (rupees ten thousand only). The OPs are jointly and severally liable to refund Rs.6,00,000/- (rupees six lakhs only) to the complainant with accrued simple interest @ 10% (ten per cent) per annum from the date of receipt of the same till payment. The OPs are further directed to pay Rs.5,00,000 (rupees five lakhs only) to the complainant by way of compensation. The OPs are jointly and severally liable to pay the above decretal amount to the complainant within 45 (forty five) days from the date of receipt of copy of this judgment, failing which the aforesaid amount will carry interest @ 9% (nine percent) per annum from the date of receipt of copy of this judgment till realization of the same in full.”

2. The brief facts of the case are that appellant – Subrata Kumar Kandu desirous of purchasing two flats, one on the second floor and another on the fourth floor. He had made complete and full payment of the consideration of the second floor and the possession of 2nd floor was handed over to the appellant and conveyance deed was executed. His grievance was that despite making payment of the consideration amount as agreed, the opposite party did not fulfil their part of the obligation and agreement and did not hand over possession of the 4th floor within the stipulated period. The complainant was always ready and willing to pay Rs. 20,00,000/- in terms of the agreement. It is contended that Rs.6.00 lakhs were initially paid to the opposite party and Rs.20.00 lakhs were payable by 12.05.2008 after handing over of Cc (form-H) of RGM as per second floor plan. His contention was that since CC (form-H) was not handed over to him, his loan could not be sanctioned by the bank and he did not pay the said amount. It is contended that opposite party had violated the terms of the agreement and there was deficiency in service, therefore, opposite party is liable to pay compensation as well as liable to hand over possession of the fourth floor on receiving the balance consideration.

3. It is further contended by the complainant in his complaint before the State Commission that besides payment of Rs.6.00 lakhs, he had also paid Rs.3.00 lakhs by cash on 05.02.2008, Rs.60,000/- by cash on 14.02.2008, 1,90,000/- by cash on 19.04.2008, Rs.10,000/- again by cheque drawn on HDFC Bank on 19.04.2008, Rs.2,00,000/- on 05.052008 by self cheque and by cash on the same day a sum of Rs.20,000/- was paid and hence total sum of Rs.13,80,000/- had been paid to the opposite party against the fourth floor and this amount also includes initial payment of Rs.6.00 lakhs.

4. The case of the opposite party before the State Commission was that there was no deficiency in service on their part since it was the complainant who had not acted in terms and conditions of the agreement and had not made the payment and thus it was the complainant who had failed to comply his part of the obligation. It was further contended that complainant was given opportunity to comply with the terms of agreement but he failed to do so and the respondent was left with no alternative but to unilaterally rescind the agreement qua 4th floor. It was admitted that sum of Rs.6.00 lakhs was paid by the complainant to them relating to 4th floor at the initial stage and, thereafter, no payment was made towards 4th floor of the house. It is the case of the opposite party that complaint is, therefore, liable to be dismissed.

5. The parties have led their evidences before the State Commission and on t