HOWRAH ENCLAVE PVT LTD Vs. DURGA VENUE

JUDGEMENT

(1.) In this revision challenge is to the order dated 30.12.2005 of Consumer Disputes Redressal Commission West Bengal, Calcutta dismissing appeal against the order dated 7.2.2003 of a District Forum whereby petitioners/opposite parties were directed to refund amount of Rs. 3,30,000 with interest @ % p.a. from 5.4.2001, to the respondent/complainant.

(2.) Respondent entered into an agreement with petitioner No. 1 company for purchase of a flat at the price of Rs. 14,80,000. Out of this amount he paid a total sum of Rs. 3,30,000. Since the petitioners allegedly failed to perform their part of contract the respondent sent letter dated 11.2.2001 for refund of the amount with interest @ 12% p.a. On amount not being returned, the respondent filed complaint which was contested by the petitioners. Petitioners, inter alia, alleged that respondent cannot seek refund of the money by unilaterally cancelling the agreement.

(3.) Submission advanced by Mr. S.K. Sharma, for petitioner is that the District Forum has not recorded finding of the petitioners being deficient in service and as such order for return of amount with interest could not have been legally made by it. According to him, inability to take the flat for which payment was made would not furnish cause of action to the respondent to file complaint under the Consumer Protection Act, 1986 (for short the 'Act'). In support of the submission, our attention has been drawn to the letter dated 11.2.2001 (copy at page 26) sent by the respondent to the petitioners. As may be seen from the order of District Forum it did not record finding in regard to deficiency in service because of willingness of the petitioners to settle the matter. So, sufficient time was given to refund the amount to the petitioners with nominal interest @ 4% p.a. Order of State Commission would show that the argument on behalf of petitioners centered about the admissibility in evidence of the receipt/writing dated 1.2.2001 issued by petitioner No. 1 (copy at page 17) to the respondent. State Commission was of the view that contents of this writing can be taken note of in deciding the controversy between the parties. In terms of this writing payment of Rs. 2 lakh by way of earnest money was acknowledged. Last para thereof which is material, reads as under: