West Bengal

South 24 Parganas

CC/553/2014

Smt. Manti Chakraborty, W/O- Ardhendu Chakraborty. - Complainant(s)

Versus

1. Ayan Banerjee, S/O- Jadab Ch. Banerjee. - Opp.Party(s)

05 Feb 2016

ORDER

               DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. ___553__ OF ___2014_____

 

DATE OF FILING : 14.11.2014_     DATE OF PASSING JUDGEMENT:_05.2.2016____

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Sharmi Basu  &  Subrata Sarker

 

COMPLAINANT                  :  1. Smt. Manti Chakraborty,w/o Ardhendu Chakraborty,

2. Ardhendu Chakraborty,s/o late Byomkesh Chakraborty

 

-VERSUS  -

 

O.P/O.Ps                                 : 1.  Ayan Banerjee,s/o Jaydeb Ch. Banerjee,

                                                  113, Bansdroni Place, P.O Bansdroni, Kolkata – 70.

                                                  2.     Dilip Saha,s/o late Ashutosh Saha, Sree palli,

  P.O Purba Putiary, Regent Park, Kolkata -93.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

 Udayan Mukhopadhyay, President

 

             Before entering into the merit of the case we must have to observe regarding the conduct of the O.P.

            It appears that both the O.Ps filed vakalatanama and pray for time for filing written version. Thereafter,  on 4.2.2015 they filed written version ,evidence and questionnaire  etc. But when the case was fixed for argument ,due to non-filing reply of the O.P even after last chance on 22.9.2015 the O.P files reply to the questionnaire  of the complainant, copy attached and cost also paid. However, complainant is not interested to file any reply and flatly submits that his complaint petition is sufficient for the reply filed by the O.P. Thereafter date was fixed for argument on 5.10.2015 , 3.11.2015 and on that date none appers. Accordingly 24.12.2015 was fixed for argument as last chance with an observation that judgement will be passed on the basis of the materials on record. But on that date complainant is present but as usual O.P did not appear. Although we have observed that judgement will be passed on the basis of the material on record but we restrain ourselves fixing another date i.e. today 19.1.2016 for argument for the ends of justice since complainant is present on that date.

            Today Ld. Advocate of the complainant is present but none appears on behalf of the O.p on call. So, we have no other alternative but to hear the argument from the side of the complainant and in view of the previous order we have to consider the case of the O.p on the basis of the materials on record ,that is why, date of delivery of jugement is fixed on 27.1.2016 and later on 28.1.2016.

            The short case of the complainant is that they are very innocent person in the locality and complainant – 2 is maintaining his family by way of private tuition fee and after accommodation of some funds they wanted to get shelter for which they booked one flat with a total consideration of Rs.9 lacs and at the time of agreement complainant paid Rs. 2,50,000/- to the O.P who are the directors of Catalan Infra Pvt. Ltd.   It is the further case of the complainant that out of Rs.9 lacs Rs.4 lacs is required to be paid by the complainant and remaining Rs.5 lacs have to pay through installment and developers will arrange bank loan and assured them regarding that but as per agreement for sale dated 7.5.2013 the construction has not yet been started ,for which complainant has submitted that the O.P always takes false plea and assured that construction of the flat will be started but they have realized that O.Ps  in order to grab the money took Rs.2,50,000/- in cash ,for which complainants wanted to get back the said money along with cost and compensation of Rs.5 lacs and cost as may be awarded suitably.

            The O.Ps are contesting the case by filing written version and has claimed that they are all along ready and willing to perform their task as per agreement for sale dated 7.5.2013 but this case is filed to harass the O.P. It has further admitted that developer could not commence their project as they did not get their sanctioned plan till 5.5.2014 from the KMC authority and applied fresh plan for which delay commenced for construction of the wrok. It has submitted that although they arranged post dated cheques but complainant purposely dishonoured post dated cheques to harass the O.P and for which complaint was lodged before the local Police Station  and a settlement was done at the police station and the O.Ps prepared a draft amo0unting to Rs.1,50,000/- dated 13.11.2014 as a part payment and pray for two months time to repay the rest amount to the complainant as per their demand along with high rate of interest. Hence, the  O.Ps pray for dismissal of the case.

            Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.ps or not.

                                                Decision with reasons

            Admittedly the O.P being a Director of Catalan Infra Pvt. Ltd. accepted Rs.2,50,000/- and executed an agreement for sale in favour of the complainant . It is also admitted in the written version by the O.P in para 5 that development work of their project has not yet been started due to some defect in submitting the plan ,for which fresh plan was submitted. It has also been admitted that two cheques issued by the O.P was dishonoured but reason has cited that complainant purposely did it in order to harass the O.P. It is well known to us that any civil dispute can be settled either out of the court or Forum or Tribunal not in the police station. So, with the assistance of police the settlement as claimed by the O.Ps is not the voluntary desire of the complainants, that is why this complaint case gave birth before the Consumer Forum, wherein we find that O.P has admitted the allegation leveled against them as true. They failed to take up the construction of the project where an agreement for sale was executed in the year 2013 with the poor complainants having no means and somehow leading their life out fund of the private tuition. So, the allegation leveled by the complainant is true and in no stretch of imagination it can be believed that construction will be started on the basis of the agreement for sale dated 7.5.2013 ,particularly when we have arrived in the year 2016 . It is interesting to point out that complainant being a common person having no such fund why unnecessary dishonoured the account payee cheques as claimed by the complainant in their written version. But the cheques were bounced due to insufficient fund. So, On the other hand the O.Ps should be cautious regarding the capacity of fund after issuing the cheques of Rs.2,73,021/- and excess amount was paid probably for the purpose of interest in order to secure the confidence of the complainant and thereby more than three years elapsed for construction. So, we find that the claim of the complainant is very much justified to get back the amount along with his harassment cost and legal expenses. We are aware that price of the flat is in hike day by day  ,for which compensation amount should not be thrown away and we are aware ,our Hon’ble superior Court and Commission have highlighted in several decisions in this regard.

            Thus it is a clear example of deficiency in service as well as unfair trade practice and in order to grab the money the advance amount is neither refunded nor flat in dispute is handed over because admittedly construction has not yet been started. We are also aware that in the area of Bansdroni under Regent Park P.S. 380 sq.ft flat cannot be easily available with that Rs.9 lacs. Considering all pros and cons and considering the fact that inspite of attempt to grab Rs.2,50,000/- ,the advance money from the complainant, the O.P once again issued A/C payee cheque in different dates ,which we have already discussed above, to secure the confidence of the complainants which is nothing but an example of unfair trade practice ,since complainant no.2 is very innocent private tutor and he is not aware regarding the Law of Land ,otherwise complainant no.2 can easily file a specific case against the O.P under section 138 of N.I Act after dishonor of the cheque with a remark insufficient from the Bank statement. But due to good luck of the O.P same was not initiated by the complainant in proper time and instead of that complainants came to us for proper redressal of their grievance and today none appears on behalf of the O.Ps. We have also discussed the conduct of the O.Ps before discussing the case of the complainant. Therefore, complainants have been able to prove their case against the O.Ps.

            Hence,

                                                                        Ordered

That  the complaint case is allowed on contest against the O.Ps.

The O.Ps are directed to refund Rs.2,50,000/- along with interest @9% p.a from 7.5.2013 till its realization jointly and/or severally  within 30 days from the date of this order.

The O.Ps are also directed to pay compensation to the tune of Rs.5 lacs for mental agony and harassment suffered by the complainants and litigation cost of Rs.10,000/- which will be borne by both the O.Ps jointly and/or severally within 30 days from the date of this order. No partial share of payment from any of the O.Ps ,who are directions of Catalan Infra Pvt. Ltd. , will be accepted ,entire money has to be paid either jointly and/or severally, failing which ,further interest will carry @15 % p.a from the date of this order till its realization.

Let a plain copy of the judgement be supplied to the complainant and a plain copy be sent to the Opposite parties through this Forum free of cost.

               

 

 

Member                                               Member                                               President

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

     Ordered

That  the complaint case is allowed on contest against the O.Ps.

The O.Ps are directed to refund Rs.2,50,000/- along with interest @9% p.a from 7.5.2013 till its realization jointly and/or severally  within 30 days from the date of this order.

The O.Ps are also directed to pay compensation to the tune of Rs.5 lacs for mental agony and harassment suffered by the complainants and litigation cost of Rs.10,000/- which will be borne by both the O.Ps jointly and/or severally within 30 days from the date of this order. No partial share of payment from any of the O.Ps ,who are directions of Catalan Infra Pvt. Ltd. , will be accepted ,entire money has to be paid either jointly and/or severally, failing which ,further interest will carry @15 % p.a from the date of this order till its realization.

Let a plain copy of the judgement be supplied to the complainant and a plain copy be sent to the Opposite parties through this Forum free of cost.

               

 

 

Member                                               Member                                               President