DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _76 _ OF ___2017
DATE OF FILING :16.6.2017 DATE OF PASSING JUDGEMENT: _17.7.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Shri Arijit Mitra, son of Shri Arun Mitra of 132, Ho Chi Min Sarani, Soumya Sarthak Apartment, Flat 1( c ), Behala, Kolkata – 8 .
O.P/O.Ps : 1. M/s Aladin Housing (India ) Private Limited at 31/B, Narkel Bagan Road, G-Floor, Garia, Kolkata – 84.
2. Sri Subhadip Sarkar, Asst. Administration, M/s Aladin Housing (India) Private Limited, at 31/B, Narkel Bagan Road, G-Floor, Garia, Kolkata – 84.
3. Sri Biswajit Banerjee , Director, M/s Aladin Housing (India) Private Limited, at 31/B, Narkel Bagan Road, G-Floor, Garia, Kolkata – 84.
4. Sri Saikat Bhattacharya, Director, M/s Aladin Housing (India) Private Limited, at 31/B, Narkel Bagan Road, G-Floor, Garia, Kolkata – 84.
5. Sri Dulal Ghosh Chowdhury, son of Sri Tarapada Ghosh Chowdhury of 5A, Raja Basanta Roy Road, P.S Tollygunge, Kolkata – 26.
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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 complainant may be epitomized as follows.
The O.P nos. 1 to 4 are developers and O.P-5 is the land owner. A Sale Agreement dated 17.5.2013 was effected between the developers and the complainant and thereby the developers agreed to sell a flat, measuring an area of 705 sq.ft, as succinctly described in the schedule to the complaint in their project “MOON LIT CITY” for a total consideration price of Rs.9,69,375/- . Complainant paid Rs.1,83,300/- on different dates to the developers . The project was agreed to be completed within 30 months from the date of sanction of the plan. But no development work was done by the developers in the project land, nor was any construction raised there. So, the complainant now prays for refund of
the money paid by him to the developers with interest , compensation etc. Hence, this case.
It is only O.P-3, the developer, who is contesting the case by filing written statement, wherein it is contended that the sale agreement was not signed b y any authorized person of the developer company and as such, the complainant is not the service holder and the O.ps are not the service providers of the complainant. The case is ,therefore, not maintainable in law. Receipt of the money as alleged by the complainant is admitted by this O.P and the O.P also wants to return the money.
The other O.Ps have not filed any written statement to contest herein and, therefore, the case is heard exparte against them.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable in Law?
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is led on behalf of the complainant and the contesting O.P. Documents, BNAs filed by the parties are kept in the record after consideration.
DECISION WITH REASONS
Point no.1,2 & 3 :
Already heard the submissions of Ld. Lawyers, appearing for both the parties . perused the petition of complaint, written statement and the materials on record. Considered all these.
It has been contended on behalf of the contesting O.P that none of the developer company signed the sale agreement and, therefore, the complainant can never be regarded as a consumer under the developers i.e O.P nos. 1 to 4. So, according him, the case is not maintainable in Law. It is submitted on behalf of the complainant that the developers executed the sale agreement and it is also admitted by the developers that the money i.e consideration price was received by the developers in pursuance of the agreement. So, according to him, the sale agreement is a genuine one and, therefore, the complainant is a consumer under the developers and the case is quite maintainable in law.
It is true that the execution and contents of the sale agreement have not at all been denied specifically by the contesting O.P in the written statement filed by him. If a particular averment of the complainant is not specifically denied, it is held that the said particular averment is admitted by the O.P. Regards being had to this position of law, we do not ever feel any kind of hesitation to say that the sale agreement was genuinely executed on behalf of the developer company.
Now to see, whether there is any deficiency in service on the part of the developers i.e O.P nos. 1 to 4. A perusal of the sale agreement reveals that the developers received consideration price, though in part, from the complainant and also agreed to complete their project within 30 months of the date of the sanctioning of the plan . But the fact remains that their dream project namely MOON LIT CITY has not taken its flight as yet. It is also admitted by the developers that they have received Rs.1,83,300/- from the complainant on different dates. If the project is not completed within the stipulated period in terms of the agreement, by the developers, it is none but the developers who are at fault and this fault may be characterized as deficiency in service on their part. The complainant has prayed for return of the consideration money paid by him to the developers. As the developers are found guilty of deficiency in service, the complainant is deemed to be entitled to get the return of the consideration price paid by him to the developers and the order is passed accordingly as hereunder.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against O.P-3 and decreed exparte against O.P nos. 1,2 and 4 . It is dismissed against O.P-5, the land owner because the land owner is not service provider of the complainant.
The O.P nos. 1 to 4 , who will remain jointly and severally liable for payment to the complainant, are directed to return Rs.1,83,300/- to the complainant with interest @10% p.a from the date of payment of each installment till the date of full realization of the entire consideration money and also to pay a sum of Rs.10,000/- as cost of litigation ,within a month of this order, failing which, the complainant is at liberty to recover the aforesaid sum by execution of this order through the machinery of the Forum.
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
