Mridula Roy, Member.
The instant appeal is directed against the judgment and order dated 24.09.2012 passed by Ld. District Forum, North 24 Pgs. in C.C. Case No. 224/2011 allowing the same on contest with cost of Rs.10,000/- against the O.P. No. 1 and exparete against O.P. No. 2 without cost, directing the O.P. No. 1 to pay a sum of Rs.6,36,666/- along with interest @ 10% per annum over the amount since 16.12.2005 till full realization, further directing the O.P. No. 1 to pay a sum of Rs.20,000/- towards damage for mental pain and agony cost by the O.P. No. 1 to the Complainant, to pay Rs.50,000/- towards penalty for adopting unfair trade practice which was to be deposited with the S.C.W.F., furthermore directing the O.P. No. 1 to complete entire unfinished work of the entire multistoried building including the flat of the Complainant at once and to handover NOC issued by the local municipality to the Complainant, directing the O.P. No. 1 to comply the entire decree within one month from the date of the order, failing which the O.P. No. 1 would pay a sum of Rs.200/- per day towards non-compliance of the decree till full compliance of the order and the said amount would be deposited to S.C.W.F.
Being aggrieved by and dissatisfied with the said order the O.P. No. 1 preferred the instant appeal on the grounds inter alia, that the Ld. District Forum did not consider the point that as per the agreement the O.P. No. 2 (Respondent No. 2 herein) was to be paid Rs.18,00,000/- out of which the O.P. No. 2 has paid Rs.7,00,000/- to the Complainant as per tripartite agreement dated 11.08.2004, the O.P. No. 1 came into picture and he agreed to pay the balance amount of Rs.11,00,000/- out of Rs.18,00,000/- at the time of passing the judgment dated 24.09.2012 since the O.P. No. 1 duly paid Rs.10,000/- on 18.08.2004, Rs.90,000/- plus Rs.7,00,000/- and thereafter, Rs.50,000/- plus Rs.10,000/- plus Rs.50,000/- plus Rs.20,000/- by cheque on 28.01.2005, 14.03.2005, 04.10.2005 respectively and also paid Rs.20,000/- on 19.11.2005 and Rs.30,000/- by cheque on 18.12.2005 and further paid Rs.1,00,000/- in cheque on 26.09.2006 and by this way the O.P. No. 1 (Appellant herein) paid Rs.10,80,000/- out of Rs.11,00,000/- so that the Complainant is entitled to get Rs.20,000/-.
Complainants case in brief, is that on 28.02.2003 the Complainant entered into an agreement for development of his landed property of Dag. No. 106 at premises No. 279, Banamalipur Road and as per terms of the agreement dated 28.02.2012 the developer M/s. Arihant Express Pvt. Ltd. (O.P. No. 2 in the petition of complaint) started construction and paid a sum of Rs.7,00,000/- out of Rs.18,00,000/- to be paid towards owners allocation to the Complainant on different dates and Rs.11,00,000/- were due along with other allocations. Subsequently, the O.P. No. 1 i.e. M/s. Karuna Construction and O.P. No. 2 and the Complainant entered into a tripartite agreement and the O.P. No. 2 i.e. previous developer and by virtue of that agreement the O.P. No. 1 entrusted with the development work and to pay the balance amount of Rs.11,00,000/- towards owners allocation to the Complainant. The Complainant further stated that the O.P. No. 1 paid a sum of Rs.3,80,000/- to the Complainant and on mutual discussion between the Complainant and the O.P. No. 1 Rs.60,000/- was adjusted towards extra works of the Complainants flat, Rs.9,293/- for temporary electric meter charges, Rs.2,041/- for common meter charges and Rs.12,000/- for new meter cost in total Rs.83,334/- has been adjusted on different heads and still the O.P. No. 1 is liable to pay Rs.6,36,666/- to the Complainant. But on the repeated knocking to the door of the O.P. No. 1 the Complainant did not get the said payment and, therefore he filed instant petition of complaint praying for direction upon the O.Ps to pay the balance amount of consideration of Rs.6,36,666/-, to finish the unfinished works of the flat and shop room of the Complainant, to pay interest on the balance consideration amount and to pay the damages to the tune of Rs.3,00,000/-.
The O.P. No. 1 appeared and contested the case by filing Written Version denying and disputing all material allegations stating inter alia, that the Complainant is not entitled to get Rs.6,36,666/- but to get Rs.20,000/- since he had already paid since the O.P. No. 1 duly paid Rs.10,000/- on 18.08.2004, Rs.90,000/- plus Rs.7,00,000/- and thereafter, Rs.50,000/- plus Rs.10,000/- plus Rs.50,000/- plus Rs.20,000/- by cheque on 28.01.2005, 14.03.2005, 04.10.2005 respectively and also paid Rs.20,000/- on 19.11.2005 and Rs.30,000/- by cheque on 18.12.2005 and further paid Rs.1,00,000/- in cheque on 26.09.2006 and by this way the O.P. No. 1 (Appellant herein) paid Rs.10,80,000/- out of Rs.11,00,000/-. Accordingly, the O.P. No. 1 prayed for dismissal of the petition of complaint.
In course of argument Ld. Advocate for the Appellant has submitted that the Respondent No. 1 is entitled to get Rs.20,000/- and not Rs.6,36,666/-/. Ld. Advocate for the Appellant has further submitted that there is no unfinished work regarding the flat as well as the shop room and the Respondent No. 1 made a declaration dated 09.11.2006 to that effect.
In course of argument Ld. Advocate for the Respondent No. 1 has submitted that the unfinished work has not been completed so far and the Respondent No. 1 never made any declaration that the construction work has been completed. Ld. Advocate for the Respondent further submits that Ld. District Forum has rightly passed the impugned order.
Admittedly, the landowner i.e. Complainant “ Respondent No. 1 and the former developer i.e. Respondent No. 2 entered into a development agreement on 28.02.2003 and as per terms of the said agreement the developer agreed to pay the landowner Rs.18,00,000/- along with a flat and a shop room together with the undivided proportionate share of land towards owners allocation. Subsequently, on 11.08.2004 another agreement for development was executed by and between the landowner i.e. Respondent No. 1, the former developer i.e. the Respondent No. 2 and the newly engaged developer i.e. the Appellant and it was agreed by the parties that the rest development work would be done by the Appellant and the balance amount of consideration towards the owners allocation would be paid by the Appellant. It is also admitted that the former developer had paid Rs.7,00,000/- to the landowner towards owners allocation and the Appellant was to pay the balance amount of Rs.11,00,000/- to the Respondent No. 1. The Respondent No. 1 has also stated that the Appellant had paid Rs.3,80,000/- to him so far. The Respondent No. 1 further stated that Rs.83,334/- had been adjusted towards extra work in his flat and deducting the said amount the Respondent No. 1 was entitled to get Rs.6.36,666/- which the Appellant denied to pay. On the other hand, the Appellant claimed to have paid Rs.10,000/- on 18.08.2004, Rs.90,000/- plus Rs.7,00,000/- and thereafter, Rs.50,000/- plus Rs.10,000/- plus Rs.50,000/- plus Rs.20,000/- by cheque on 28.01.2005, 14.03.2005, 04.10.2005 respectively and also paid Rs.20,000/- on 19.11.2005 and Rs.30,000/- by cheque on 18.12.2005 and further paid Rs.1,00,000/- in cheque on 26.09.2006 and by this way the O.P. No. 1 (Appellant herein) paid Rs.10,80,000/- out of Rs.11,00,000/- so that the Complainant is entitled to get Rs.20,000/-. As the Appellant claimed regarding payment of Rs.10,80,000/- so he was to prove the same since the burden of proof lies upon the claimant. But, in the instant case the Appellant failed to prove the claimed payment by adducing cogent evidence except for Rs.3,80,000/-. However, it was admitted position that Rs.83,334/- was adjusted towards extra work so the Appellant need not pay the said sum to the Respondent No. 1 but the balance amount should be paid by the Appellant.
As regards completion of construction work, Ld. Advocate for the Appellant has referred to para No. 2 of the declaration dated 09.11.2006 made by the Respondent No. 1 and claimed that the Respondent No. 1 made declaration that the construction work had been completed. But it appears from the para No. 2 of the said declaration that the Respondent No. 1 stated that the construction work was more or less completed and, therefore, it could not be said that the construction work was completed.
In view of that, we find that the Appellant has deficiency in providing service to the Respondent No. 1 and, therefore, the Ld. District Forum rightly directed the Appellant (O.P. No. 1 in the complaint case) to refund the balance amount, to handover the NOC from the concerned municipality in respect of the entire construction and to pay the compensation as well as the litigation cost to the Respondent No. 1 (Complainant in the complaint case), but we are inclined to hold that there is no unfair trade practice as contemplated under Section 2(1)(r) of the C. P. Act, 1986, on the part of the Appellant and, therefore, the direction upon the Appellant to deposit Rs.50,000/- with the S.C.W.F. for adopting unfair trade practice is set aside.
In the result, the appeal succeeds in part.
Hence, ordered that, the appeal is allowed in part on contest. The impugned judgment is modified to the extent that direction upon the Appellant to deposit Rs.50,000/- with the S.C.W.F. for adopting unfair trade practice is set aside. As regards the other parts of the impugned order it is directed that in case of failure to comply with the order the O.P. No. 1 will pay Rs.200/- per day to the Complainant instead of S.C.W.F. The other part of the impugned judgment remains unaltered. The impugned judgment stands modified accordingly.