DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _330_ OF ___2015
DATE OF FILING : 20.7.2015 DATE OF PASSING JUDGEMENT: 31.05.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : 1. Mr. Sanjoy Bhaduri, at 1/41A, Sahid Nagar, P.O Dhakuria, P.S Garfa, Kolkata – 31.
2. Mrs. Kabita Bhaduri of 1/41A, Sahid Nagar, P.O Dhakuria, P.S Garfa, Kolkata – 31.
O.P/O.Ps : 1. M.J Constructions at 90B, Selimpur Road, P.S Garfa, Kolkata-31.
2. Mr. Ashis Das, Partner of M.J Constructions, at 90B, Selimpur Road, P.S Garfa, Kolkata-31.
3. Mrs. Jaya Das, Partner of M.J Constructions of 84D, Salimpur Road, Dhakuria, P.S Garfa, Kolkata – 31.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
The nub of the facts leading to the filing of the instant case by the complainants is that O.P-1 is a Partnership Firm which was engaged in land development business; O.P nos. 2 (since deceased) and 3 were the partners of O.P-1. O.P-2 died and O.P nos. 2(a) and 2(b) have been substituted for O.P-2. The case of the complainants is that O.P-2 executed a sale agreement on 5.3.2014 and thereby he agreed to sell a flat to the complainants for a total consideration price of Rs.24 lacs. Rs.10 lac was paid by the complainants to O.P-2. Thereafter, the O.P nos. 2 and 3 failed to make any development of the land and ,therefore, the complainant demanded refund of the consideration price paid by him to O.P-2. Rs.3,25,000/- was refunded to the complainants by the O.P-2. He also delivered two account payee cheques of Rs.4 lacs and Rs.3.5 lac each to the complainants in order to refund the money received by him. But those cheques were dishonoured. The O.Ps have not refunded the consideration money received by them from the complainants, and therefore, this complaint is filed by the complainants ,praying for refund of Rs.7.5 lac with interest, Rs.2 lac as compensation for harassment and mental agony etc. Hence, this case.
Written statement is filed by the O.P nos. 2(b) and 3. O.P-2(a) has adopted the written statement filed by the O.P nos.2(b) and O.P-3.
According to them, the Firm was an un-registered one and, therefore, no case is maintainable against an un-registered Firm under section 69 of Indian Partnership Act. Therefore, to them, the case should be dismissed. Further, no agreement for sale was executed between the complainant and the O.P-2. What was executed between them was nothing but an offer letter dated 5.3.2014 . It was agreed between them that the sale agreement would be effected within 60 days of such offer letter. But the sale agreement was not ever effected between them and, therefore, the complainants are not entitled to get the reliefs as prayed for, because there is no service promised by the O.P-2 to the complainants. It is further averred by them that offer letter was cancelled for default of the complainants and Rs.,3,25,000/- has already been refunded to the complainants out of Rs.10 lac , which was paid by the complainants to the O.P-2. The dishonor of cheques as alleged by the complainants cannot be the matter of enquiry by this Forum. It should be dismissed in limini with cost.
Upon the averments of the parties following points are formulated for consideration.
POINTS FOR DETERMINATION
- Is the case maintainable in law?
- Is there any deficiency in service on the part of the O.Ps for not returning the money received as part consideration of a self contained flat?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Both the parties have led their Evidences on affidavit which are kept in the record for consideration. Questionnaire, reply, BNAs filed by the parties are also kept in the record for consideration.
DECISION WITH REASONS
Point no.1 :-
Already heard the Ld. Lawyers ,appearing for both the parties. Perused the complaint, written versions of the statements of the O.Ps, evidences and other materials on record. Considered all these.
It has been urged on behalf of the O.Ps that the instant case is not maintainable as Section 69 of the Indian Partnership Act stands in the way of maintainability of this case. Section 69 of Indian Partnership Act lays down that no suit will be maintainable if the Partnership Firm is unregistered. In the instant case, the Partnership Firm is undisputedly unregistered. But, the said provision applies to the case of a suit. The proceedings under C.P Act, 1986 is not a suit and ,therefore, the said section is not applicable to the instant case and the instant case appears to be quite maintainable in Law.
Point no.1 is thus primarily answered in favour of the complainants.
Point no.1& 2 :-
It has been contended on behalf of the O.Ps that no sale agreement was effected by the developers in favour of the complainants in respect of the subject flat and, therefore, the complainants are not entitled to get any reliefs . According to his submission, there is no service promised to be provided to the complainants by the developers and the complainants are, therefore, not entitled to relief or reliefs claimed by them. It is admitted by the O.Ps/developers that an offer letter was given to the complainants by the O.P-2on 5.3.2014 and thereby the O.P-2 gave a proposal for sale of a flat at a total consideration price of Rs.24 lacs to the complainants and that the complainants paid Rs.10 lac in pursuance of that offer letter. Even assuming for an argument that the letter dated 5.3.2014 was an offer letter to the complainants, we must say and say only that the said offer letter was accepted by the complainants and such acceptance is signified by payment of part consideration money by the complainants to the developers i.e O.P-2,since deceased. When an offer is made by one party and the same is accepted by the other party and when said acceptance is intimated to the party who made the offer, a contract comes into existence. Upon the facts which go undisputed and which are mentioned just above, we feel no hesitation to say that a contract came into existence between the O.P-2 and the complainants and that agreement was nothing but an agreement for sale , no matter what nomenclature was inputted to it. The complainants have stated in their evidence that the O.Ps have not delivered the possession of the flat to them within the prescribed time ,nor have they got registered the flat in favour of them also. Failure to deliver the possession of the flat to the complainants and also to get the same registered in their favour are undoubtedly deficiency in service on the part of the O.Ps. The complainants wanted to accept the refund of the consideration price paid by them to the complainants , when the O.Ps failed to perform the part of their agreement. O.P-2 paid Rs.3,25,000/- out of Rs.10 lac to the complainant. Now the complainants are still entitled to get a refund of Rs.6,75,000/- . The O.Ps will have to return this amount to the complainants with interest from the date of payment till full realization thereof. That apart, the complainants have also sustained a huge loss owing to refund of part consideration price of the flat, if they are to buy a flat of similar kind at present. Price of flat/land has sored to much extent by this time. They have also sustained tremendous harassment and mental agony due to unscrupulous act of the developers i.e the O.Ps. O.Ps will have to compensate for the loss sustained by the complainants.
Point nos. 1 and 2 are thus disposed of accordingly.
In the result, the case succeeds in part.
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against the O.Ps with a cost of Rs.10,000/-.
All the O.Ps , who are jointly and severally liable to make payment to the complainants, are directed to refund Rs.6,75,000/- to the complainants with 12% interest from the date of payment of the money to O.P-2 to the date of full realization thereof, Rs. 1 lac (one lac) as compensation for mental agony , harassment and pecuniary loss suffered by the complainants, within a month of this order ,failing which the amounts of compensation and cost as referred to above will bear interest @10% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
