The court established that a refund of earnest money, with deductions, is warranted when the agreement conditions are met despite the absence of delivery of the property.

1. The instant appeal has been directed by the appellants u/s 15 of C.P. Act , 1986 challenging the judgment dated 8.1.2019 passed by learned District Consumer Disputes Redressed Commission, Howrah, in CC case No. HDF / 211/2018.

2. The facts of the case, in brief are that the Respondent Nos. 1 & 2 / complainants (hereinafter referred to as 'complainants') entered into an agreement for sale with the OPs on 23.09.2016 for purchasing a self - contained full finished flat on the first floor of the proposed building situated at 8/5, Niranjan Banerjee Lane, P. S. Shibpur, District Howrah, measuring about 1260 sq. ft. including super built up area at a total consideration of Rs.25,20,000. The appellant No. 2 / OP No. 2 (hereinafter referred to as 'OP No. 2') gave a proposal to the complainants and as such after acceptance of the same the complainants entered into that agreement for sale and accordingly the complainants made payment of Rs.6,00.000 by cash and by way of cheque.

3. Upon receiving the earnest money, the appellants / OPs No. 1 & 2 (hereinafter referred to as 'OPs No. 1 &2') executed the agreement for sale on 23.9.2016. After entering into the said agreement for sale by making payment of Rs.6,00,000, the complainants were in hope that the developers / OPs No. 1 & 2 shall handover the said flat within three months that is within December 2016 by complying all the terms and conditions of the said agreement for sale. The complainants duly handed over the relevant documents for getting loan and requested the OPs No. 1 & 2 / developers to arrange loan for balance of payment and the developers informed the complainants that it is the duty of the OPs No. 1 & 2 and they would arrange the loan and they would duly inform the complainants. Thereafter, on several occasions, the complainants asked the OPs No. 1 & 2 about the said loan but the OPs No. 1 & 2 avoided the said matter and informed the complainants that the matter is in process. Despite several requests, when the OPs No. 1 & 2 failed to complete the terms and conditions of the said agreement for sale, the complainants sent a legal notice dated 16.3.2017 with request for refund of the earnest money amounting to Rs.6,00,000 along with 12% interest. Upon receiving the same, the OPs No. 1 & 2 informed that OP No. 2 has met with an accident as such they were unable to hand over the flat within time and also requested the complainants to give another six months.

4. Despite several requests, the OPs No. 1 & 2 failed to keep their word. When the complainants realized that the OPs are not at all interested to keep their words, the complainants filed a consumer complaint being No. 231/2017 before this Commission with a prayer for refund of earnest money of Rs.6,00,000 along with interest and litigation cost. Since this Commission lacks the pecuniary jurisdiction, this Commission has been pleased to dispose of the case with a liberty to file the case before appropriate Forum. Accordingly, the complainants filed a petition of complaint against OPs No. 1& 2 / developers and respondent No. 3 / OP No. 3 / landowner before the District Commission Howrah. Hence, the petition of complaint before the District Commission, Howrah, praying for direction upon the OPs NO. 1 & 2 to refund advance amount of Rs.6,00,000 with interest @ 12% p.a. from 23.9.2016 till realization along with compensation of Rs.4,50,000 and litigation cost of Rs.30,000.

5. Though the notice upon OP No. 1 / appellant No. 1 and Respondent No. 3 / OP No. 3 were duly served but they did not appear before the learned District Commission to contest the case. The OP No. 2 i