DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __342_ _ OF ___2015
DATE OF FILING : 27.7.2015 DATE OF PASSING JUDGEMENT:14.2.2019
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Gautam Majhi, son of Prodyut Majhi of 1/18, Johura Bazar Lane, Kolkata-42, P.S Kasba, South 24-Parganas.
O.P/O.Ps : 1. Pradip Kapat, son of late Panchu Kapat, 93, Tiljala Road, Kolkata-46, P.S Karaya, South 24-Parganas.
2. Samar Biswas, son of late Nilu Biswas 83, Tiljala Road, Kolkata-46, P.S Karaya, South 24-Parganas.
3. Siddheswar Ghosal
4. Tapan Ghosal
5. Prabhat Chandra Ghosal , all sons of late Birendra Nath Ghosal of 179, B.B Chatterjee Road, Kolkata-42, P.S Kasba, South 24-Parganas.
__________________________________________________________________
J U D G M E N T
Sri Ananta Kapri,President
Alleging deficiency in service on the part of the O.Ps, the complainant has filed the instant case ,praying for delivery of possession etc.
Briefly stated, the facts leading to the filing of the instant case run as follows.
O.P nos. 1 and 2 are joint developers; O.P nos. 3,4 and 5 are land owners. One sale agreement dated 25.4.2012 was executed by and between the complainant and the developers and thereby the developers agreed to sell a self contained flat of 800 sq.ft super built up area on the ground floor as succinctly described in Schedule to the complaint. The total consideration price of the flat was Rs.16 lac , out of which the complainant paid Rs.1 lac by cheque on 26.4.2012. He also sent a cheque amounting to Rs.50,000/- on 30.5.2012 to O.P nos. 1 and 2. Thereafter the construction of building was completed by the developers. But the developers took no initiative to deliver the possession of the flat to the complainant . Letter of request of the complainant dated 2.3.2015 and also legal notice dated 17.6.2015 ,asking the developers to hand over the possession of the flat also failed to yield any positive result. Therefore, the complainant has come up before this Forum with the filing of the instant case, praying for registration, delivery of possession and payment of compensation by the O.P/developers. Hence, this case.
O.P nos. 3,4 and 5 have filed the written statement ,wherein it is contended by them that they are still ready to execute the deed of conveyance in favour of the complainant, if so directed by the Forum.
The O.P nos. 1 and 2 have filed written statement, wherein it is contended inter alia that the cheque of Rs.50,000/- has not been encashed by them and this fact has been intimated to the complainant by them. It is further pleaded by them that Rs.1 lac has only been paid as earnest money by the complainant out of Rs.16 lac and thereafter, the complainant has not paid even a farthing to them towards payment of consideration price. The complainant did not pay the balance amount of the consideration price ; he expressed his inability to pay the balance consideration price over telephone; even he expressed his unwillingness to purchase the flat. He advised the O.P/developer to sell the flat to his friend namely Tulu Chandra and accordingly they have sold away the flat to Tulu Chandra . There is no deficiency in service on their part and, therefore, the complaint should be dismissed in limini.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- 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 by the complainant and O.P nos. 1 and 2.
DECISION WITH REASONS
Point no.1 & 2 :
In the instant case, it is to be seen whether the complainant was ready and willing all along to perform his part of contract. It is undisputed fact that a sale agreement was struck between the complainant and the O.P/developers on 25.4.2012 and that the complainant paid Rs. 1 lac only to the said developers out of total consideration price of Rs.16 lac. Thereafter, years after years have passed away and the complainant has not been able to pay a single farthing to the O.P/developer. Once, he sent a cheque of Rs.50,000/- on 30.5.2012 to the developers; but the said cheque has not been encashed by the developers. It is the case of the developers that the complainant expressed his unwillingness and inability to make payment of consideration price and to purchase the flat. It is also the case of the developers that the complainant requested them over telephone to sell the flat to one of his friends namely Tulu Chandra. The developers have accordingly sold away the said flat to Tulu Chandra , as goes their version.
Since2012, till the filing of this case in 2015, complainant has not been able to produce any document on record to show that he wanted to make payment to the developers , but the developers declined to receive it. Payment of Rs.1 lac as against the total consideration price of Rs.16 lac does in no way establish that the complainant had all along the capacity to make payment of the entire consideration price. Had the complainant had the capacity to make the payment of the said consideration price to the developers, he would have paid such amount to the developers within the aforesaid period . At least he would have been able to produce a document on record to show that he tendered the amount to the developers, but the developers refused to accept the same. All these facts pinpoint to nothing but one thing that there is truth in the version of the /developers that the complainant expressed his unwillingness to purchase the flat.
Be that as it may, from the facts as transpiring on record, it is found that the complainant was not ready and willing to purchase the flat and, therefore, he is not entitled to get the flat at present . However, he is entitled to get back the amount paid by him to the developers with as usual interest.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against the O.Ps 1 and 2 with a cost of Rs.5,000/- and dismissed exparte against the rest of the O.Ps without any cost.
The O.P nos. 1 and 2 are directed to refund Rs.1 Lac (One lac) which has been accepted by them from the complainant, to the complainant with interest @10% p.a from the date of receipt i.e 25.4.2012 till full realization thereof, within a month of this order ,failing which, the complainant is at liberty to execute the award of this Forum in accordance with law.
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
