DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

      C.C. CASE NO. __59_ _ OF ___2016

DATE OF FILING :_17.6.2016      DATE OF PASSINJUDGEMENT:31.01.2019

Present                 :   President       :   Ananta Kumar Kapri

                                 Member(s)    :    Subrata Sarker & Jhunu Prasad

COMPLAINANT   :            1. Munmun Dey, wife of late Bijan Dey

                                  2. Shyantika Dey, daughter of Munmun Dey, both of Kumar Gram Tea Garden, P.O Newlands, P.S Kumargramduar, Dist. Jalpaiguri, Pin-736205.

•  VERSUS  -

O.P/O.Ps                    : 1. Maa Manasa Developers Private Limited. At P-103A, 2^nd Floor, CIT Road, P.S Entally, Kolkata-14, now shifted at Jhapadapur, Diamond Tower-I, Kharegpur.

                                  2.   Hirak Nath Sounth

                                  3.  Khudiram Sounth

                                  4. Jayanti Sounth,

                                  All Directors of Maa Manasa  Developer Private Limited at 103A, CIT Road, P.S Entally, Kolkata-14.

                                  5.    Bibhas Kumar Ghosh , the General Manager , Maa Manasa Developer Private Limited. Golam Apartment, 4^th floor, B-7, Rajnarayan Park, Ranghol, Boral, Kolkata-15.

__________________________________________________________________

                                                J  U  D  G  M  E  N  T

                Inability on the part of the O.Ps to fulfill the terms and conditions of the sale agreement has galvanized the complainant to file the instant case  under section 12, C.P Act, 1986, alleging deficiency in service on their part.

                The facts leading to the filing of the instant case may be epitomized as follows.

              O.P-1 is the developer company and O.P nos. 2 to 4 are Directors of O.P-1.O.P-5 is the General manager of O.P-1. A Sale agreement dated 20.11.2012 was executed by and between the complainants and the O.P company and thereby the O.P company agreed to sell a developed plot of land to the complainants for a total consideration price of Rs.3,12,500/-. The complainants paid Rs.1,17,708/- to the O.P company at different dates. It was agreed by the O.Ps that the title deed of the land would be delivered to the complainants  within 10 days of the execution of the sale agreement and that the development work of the land would be completed within 90 months of the last payment date. Last payment was made by the complainants to the O.Ps on 18.4.2013 i.e about six years ago. But, still now, no development of land has ever been made by the O.Ps and, therefore, the complainants have filed the instant case ,praying for issuing a direction to the O.Ps to fulfill the terms of the agreement. Hence, this case.

                  The O.P nos. 1,2 and 4 have been contesting the case by filing written statement, wherein no positive case has been made out by them save and except the denials of the allegations leveled against the O.P company by the complainants.

                Upon the averments of the parties, the following points are formulated for consideration.

POINT FOR DETERMINATION

1. Is there any deficiency in service on the part of the O.Ps as alleged by the complainant ?
2. Is the complainant  entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

          The petition of complaint is treated as evidence of the complainants vide their petition dated 1.6.2017. O.P nos. 1,2 and 4 have filed Evidence on affidavit and the same is kept in the record.

DECISION WITH REASONS

Point no.1 & 2  :

              It is admitted by the Ld. Lawyer appearing for the complainants that time was the essence of the contract as agreed upon between the parties and that the O.Ps have not honoured the terms and conditions of the agreement. According to him, last payment was made by the complainants to the O.P-1on 18.4.2013. Since then, a considerable period has passed away and no development work has yet been started by the O.P company over the land sold to the complainants.
So, to him, an order be passed from the Forum ,directing the O.Ps to refund the money received by them from the complainants with interest by way of compensation.

             The complainants have filed the copy of the Sale Agreement dated 20.11.2012. They have also filed copies of money receipts  granted by the O.P no.2 On perusal of the money receipts, it is found that the complainants have actually paid Rs.1,08,854/- to the O.P company as part payment of consideration price agreed between the complainant and the O.Ps. The contesting O.Ps also do never deny in their written statement that they have received such amount of money as consideration price from the complainants. A further perusal of the sale agreement reveals that the time was made essence of the contract and the O.P company agreed thereby to deliver the title deed of the land to the complainant within 10 days of execution of the sale agreement. But, no such title deed is handed over to the complainants by the O.P Company. Further, the O.P company also agreed to register the land in favour of the complainants within 48 months of the last payment made by the complainants and also to complete the development work within that period. It is deposed by the complainants that no development work has yet been started by the O.P company upon the land purchased by them. All these have not been contradicted by the contesting O.Ps except giving some formal denials.

              Regards being had to all the facts and circumstances of the case, we do hold that it is none but the O.P company who is defaulter in the matter of compliance of sale agreement dated 20.11.2012 . It stands established by the evidence of the complainant that the land which they have purchased from the O.P company have not yet been developed. In the circumstances, it appears to be far better to refund the consideration money received by the O.P company to the complainants with interest by way of compensation.

              In the result, the case succeeds .

               Hence,

ORDERED

             That the complaint case be and the same is decreed on contest  against the O.P nos. 1,2,3 and 4  with a cost of Rs.5000/-.

             The case is dismissed exparte against O.P-5 as O.P-5 is a mere employee of O.P company and there is no cause of action arisen against this employee of the O.P company.

              All the O.P nos. 1,2,3 and 4 ,who are liable jointly and severally to make payment to the complainants, are directed to refund Rs.1,08,854/-  , which has been received by them from the complainants, with interest @10% p.a by way of compensation ,within a month of this order, failing which, the complainants are given liberty to recover the decreetal amount by execution of this award.

         Let a free copy of this order be given to the parties concerned at once.   

                                                                                                                                                President

I / We agree

                                                            Member

Dictated and corrected by me

                                  President