22...05.01.2022..
Today is fixed for delivery of judgment/final order.
Final order contains 4 pages is ready. It is sealed, signed and delivered in open Forum/Commission.
It is,
ORDERED
That the complaint case be and the same is hereby allowed on contest against the O.P. No. 1 with cost of Rs. 10,000/- and dismissed ex-parte against the O.P. No. 2 without cost.
The O.P. No. 1 is directed to refund the advance amount of Rs. 1,00,000/- along with interest @6% p.a. w.e.f. 16.04.2015 (the date of last payment) till realization of the entire amount to the complainant by 90 days from the date of this order. The O.P. No. 1 is also directed to pay compensation of Rs. 20,000/- for mental pain and agony and litigation cost of Rs. 10,000/- to the complainant within 90 days from the date of this order.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAS
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. NO. 108 OF 2019
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
01.08.2019 20.08.2019 05.01.2022
Present : President : Asish Kumar Senapati
Member : Sangita Paul
COMPLAINANT :1. Sri Sutanu Bhadra, Residing at Titas Apartment, Flat No. – 1B, 224 Rajdanga Road, P.S. – Kasba, Kolkata-700107.
Versus
O.P/O.Ps : 1. Sri Baram Deo Singh, 16 New Ballygunge Road, P.S. – Tiljala, Kolkata – 700039.
2. Rabindra Nath Mukherjee, S/o-Late Harihar Mukherjee, 13 Hemchandra Street, P.S. – Watgang, Kolkata – 700023.
Advocate for the Complainant : Sri Suvendu Das
Advocate for the O.Ps. : Mr. Samsul Alam
Sri Asish Kumar Senapati, President
One Sri Sutanu Bhadra (hereinafter referred to as the complainant) filed the case against Sri Baram Deo Singh and another (hereinafter referred to as the O.Ps.) praying for either refund of advance amount of Rs. 1,00,000/- with interest @ 18% p.a. till realization of the entire amount or to deliver possession of the plot by executing and registering the deed of conveyance, compensation and litigation cost against the O.Ps. alleging deficiency in service.
The sum and substance of the complaint is as follows:
The complainant entered into an agreement for sale with the O.P. No. 1 at a consideration of Rs. 1,00,000/- out of which Rs. 16,500/- was paid at the time of agreement and the rest amount was agreed to be paid by 45 installments. Accordingly, the complainant paid the entire amount but the O.Ps. did not develop the land in question and no deed of conveyance is registered in favour of the complainant in spite of repeated demands. Hence, the complainant has filed the case praying for a direction upon the O.Ps. for hand over the possession of the plot as per agreement dated 22.03.2011 coupled with execution and registration of deed of conveyance in favour of the complainant or in the alternative refund of money paid by the complainant with interest @ 18% p.a., compensation of Rs. 2,00,000/- and litigation cost of Rs. 50,000/-.
The O.P. No. 1 contested the case by filing W.V. contending that the alleged agreement for sale dated 22.03.2011 was executed without consideration and so the said agreement is invalid. That the complainant paid only Rs. 73,500/- by monthly installments @Rs. 1,500/- in 49 installments. The complainant is at fault of non-payment of balance amount of Rs. 26,500/-. The complainant is not entitled to get 10% discount over the consideration price for no-fulfillment of the terms of agreement. Hence, the case may be dismissed with cost.
The O.P. No. 2 did not contest the case.
On the basis of the above versions, the following points are framed for proper adjudication of the case :-
- Is the complainant a consumer under the provisions of C.P Act?
- Is there any deficiency in service on the part of the O.Ps.?
- Is the complainant entitled to get any relief against the O.Ps., as prayed for?
DECISION WITH REASONS
Point no. 1 :-
The Ld. Advocate for the complainant submits that the complainant entered into an agreement with the O.P. No. 1 for sale on 22.03.2011 on certain terms and conditions and paid Rs. 1,00,000/- as consideration. It is urged that the O.Ps. did not develop the land in spite of lapse of the period mentioned in the agreement. He submits that the complainant is a consumer.
In reply, the Ld. Advocate for the O.P. No. 1 submits that the complainant is not a consumer.
We have gone through the materials on record and considered the submission of both sides. We find that the complainant and the O.P. No. 1 entered into an agreement dated 22.03.2011 on certain terms and conditions and the O.P. Nos. 1 & 2 entered into agreement dated 03.02.2011 in respect of the property in question authorizing the O.P. No. 1 to sell the land. It is the allegation of the complainant that the O.P. No. 1 failed to develop the land even after a considerable period. The O.P. No. 1 has failed to substantiate that he has developed the land in question in terms of the agreement. Hence, we hold that the complainant is a consumer.
Point nos. 2 & 3 :-
The Ld. Advocate for the complainants submits that the complainant paid Rs. 1,00,000/- as consideration amount and it is stated by the O.P. No. 1 in para-7 of the W.V. that the complainant paid only Rs. 73,500/-. It is urged that the O.P. No. 1 has not yet developed the land in terms of agreement dated 22.03.2011 and he is also silent about the fate of the project. He contends that the O.P. No. 1 may be directed to refund the advance amount of Rs. 1,00,000/- with interest @18% p.a. till realization. It is also submitted that the complainant is entitled to get compensation and litigation cost against the O.P. No. 1.
Per contra, the Ld. Advocate for the O.P. No. 1 submits that the O.P. No. 1 has no deficiency in service and the complainant is at fault for non-payment of rest consideration amount. It is contended that the complainant is not entitled to get any compensation and litigation cost against the O.P. No. 1.
We have gone through the materials on record and consider the submission of both sides. Admittedly, the complainant entered into an agreement for sale with the O.P. No. 1 on 22.03.2011 on certain terms and conditions including development of the land in question. On going through the photocopies of documents, we find that the complainant paid Rs. 1,00,000/- to the O.P. No. 1 up to 16.04.2015. We find that the O.P. No. 1 has deficiency in service and the complainant is entitled to get back his advance amount of Rs. 1,00,000/- with simple interest @6% p.a. w.e.f. 16.04.2015 (the date of last payment) till realization of the entire amount. In our considered opinion, the complainant is also entitled to get compensation of Rs. 20,000/- for mental pain and agony and litigation cost of Rs. 10,000/- against the O.P. No. 1. We find that there is no cause of action between the complainant and the O.P. No. 2 as there is no privity of contract between them.
Both points are thus disposed of.
In the result, the complaint case succeeds.
Fees paid are corrected.
Hence,
ORDERED
That the complaint case be and the same is hereby allowed on contest against the O.P. No. 1 with cost of Rs. 10,000/- and dismissed ex-parte against the O.P. No. 2 without cost.
The O.P. No. 1 is directed to refund the advance amount of Rs. 1,00,000/- along with interest @6% p.a. w.e.f. 16.04.2015 (the date of last payment) till realization of the entire amount to the complainant by 90 days from the date of this order. The O.P. No. 1 is also directed to pay compensation of Rs. 20,000/- for mental pain and agony and litigation cost of Rs. 10,000/- to the complainant within 90 days from the date of this order.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
Dictated and corrected by me
President
