DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _65_ OF ___2016_
DATE OF FILING : 4.7.2016 DATE OF PASSING JUDGEMENT:22.12.2017
Present : President :
Member(s) : Jhunu Prasad & Subrata Sarker
COMPLAINANT : Purnendu Kishore Roy, Ashray Apartment, Flat -4, P-43, Ramkrishna Park, P.S. Sonarpur, P.O Laskarpur, Dist. South 24-Parganas, Kolkata – 153.
-VERSUS -
O.P/O.Ps : 1. Samar Guha, 70, Ramkrishna Park, P.O Laskarpur, Dist. South 24-Parganas, Kolkata – 153.
2. Lipika Guha, w/o Samar Guha, 70, Ramkrishna Park, P.O Laskarpur, Dist. South 24-Parganas, Kolkata – 153.
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J U D G E M E N T
Jhunu Prasad, Lady Member
Interference of this Forum has been sought for by the complainant contending gross negligence, deficiency in service and unfair trade practice in rendering service towards the complainant by the Opposite Party.
The gist of the case as stated in the complaint by the complainant, is that, the complainant entered into a verbal “Agreement for Sale” with the Opposite Party for purchasing self contained one bed room flat on the roof of the building, @1,100/- per Sq. ft. within 4 to 5 lacks.
The complainant also stated that the said flat will be handed over to the complainant within 3 to 4 months after receipt of the amount of Rs.2,00,000/- as advance money and balance consideration money will be paid by the complainant to the Opposite Parties at the time of delivery of the flat.
The complainant paid in total Rs.8,34,000/- from 12.8.2010 to 20.02.2011 by installment on different dates but the Opposite Parties did not handover the said flat in favour of the complainant.
Thereafter due to incomplete construction of the flat within the stipulated time the complainant asked for refund of the money from the Opposite Parties, but they did not do anything. On 30.09.2012 the complainant complained the matter before the locale people and with the intervention of the said locale people the Opposite Parties agreed to refund the money of Rs.8,34,000/- and such undertaking has been enumerated in a non-judicial stamp paper in presence of seven witness and signed by both parties.
Thereafter the complainant’s wife died on 21.11.2012 due to cancer and due to financial stringency, the complainant repeatedly requested for refund of the money from the Opposite Parties. In such manner two and half years lapsed, but the Opposite Parties reluctant to refund the money of Rs. 8,34,000/- to the complainant.
Thereafter the complainant approached with his grievances before the C.A. & F.B.P. Kolkata. After receipt of the notice from the C.A. & F.B.P., Kolkata, the Opposite Parties appeared on 28.04.2015 and prayed one year time to refund the said money of Rs.8,34,000/- , but they failed.
Thereafter the complainant sent a letter to the Opposite Parties and requested them to refund the money, but they did not pay any heed to it.
Having no other alternative the complainant filed this instant complaint against the Opposite Party for getting relief as prayed for.
Issued notices upon the Opposite Parties.
After receiving notices, the Opposite Parties appeared personally and filed written version to contest and to refute the case.
In written version, the Opposite Parties stated that the complainant was searching for a suitable accommodation where the Opposite Parties offered and agreed to construct a flat on the roof of the building of the Opposite Parties for the purpose of selling it to the complainant @ of Rs. 200/- less than the then prevailing market price which was about Rs.3,000/-.
In the written version the Opposite Parties also stated that they asked the complainant to enter into a formal “Agreement for sale” but the complainant was reluctant to do the same.
After obtaining the sanctioned building plan from the municipality for the proposed construction the Opposite Parties asked some advance money as part payment of consideration amount. Accordingly the complainant paid an amount of Rs.8,34,000/-. The complainant was paying part of consideration money in installments on various dated to the Opposite Parties.
Thereafter the Opposite Parties completed their construction and the said flat is ready to hand over and ready to register of deed of the said flat in favour of the complainant, but due to death of the complainant’s wife, the complainant refused to take the same. The Opposite parties will refund the money after selling the flat in question.
In the written version the Opposite Parties also stated that the case is not maintainable and the complainant is not a consumer. The complainant prayed to refund money before the forum, so refund of money is not maintainable here.
The Opposite Parties also stated in their written version that the complainant in his evidence has exhibited a so called agreement which is merely a “Salishi-nama”, so this Ld. court has no authority to enforce any “Salishi-nama”. And due to financial stringency the present Opposite Parties are not in a position to refund the money. In spite of that, the Opposite Parties agreed to refund the money after selling the said flat in question and prayed to dismissed the case.
Points for determination:-
1. Whether the complainant is a consumer or not.
2. Was there any negligence or deficiency in service on the Parties of the Opposite Parties
3. Is the complainant entitled to get the relief as prayed for ?
Decision with Reasons:-
At the time of argument both parties filed evidence in Chief, questionnaires, reply and BNA to support of their claim.
All points are taken up together for consideration for the sake of argument and brevity.
We have carefully considered and scrutinized the submission made before us by the complainant and also the Opposite Parties and on critical appreciation of the case record, it is evident that admittedly one verbal Agreement was made by and between the parties for purchasing a residential one bed room flat on the roof of the building of the Opposite Parties . Admittedly the complainant paid Rs. 8,34,000/- by installment in different dates from 12.08.2008 to 20.02.2011 to the Opposite Parties, but the Opposite parties did not hand over the said flat in question within in stipulated time.
Thereafter the complainant being an aged person repeatedly requested to the Opposite Parties to refund to money of Rs. 8,34,000/- which has been paid by the complainant to the Opposite Parties for construction of the said flat in question, but the Opposite Parties deliberately ignored to do the same.
Manifestly, from the record and documents it reveals that the Opposite Parties also failed to perform their commitment which has been agreed in presence of local people.
It is also reveals, that although it is admitted that one verbal Agreement has been executed by and between the parties for purchasing one self contained flat consisting of one bed room on the roof of the building of the Opposite Parties and subsequently one “Agreement” has been executed in presence of local people wherein the Opposite Parties undertook to refund to the complainant the total Money of Rs. 8,34,000/- within 2 ½ years from the date of “Agreement dated 30.09.2012. But the Opposite Parties failed, which amounts to deficiency of service on the part of the Opposite Parties within the purview of section 2(1)(g) of C.P. Act 1986.
Thus the complainant successfully able to prove that the Opposite Parties failed their commitment and did not refund the money of Rs.8,34,000/- within stipulated time.
Accordingly, we hold that the complainant is a consumer within the per view of section 2(1)(d) of C. P. Act 1986.
Therefore, from the discussions made above, the Forum has no hesitation to conclude that the complainant is entitled to get the relief as prayed for and consequentially the points for determination are decided in affirmative.
In short, the complainant deserves success.
In the result, we proceed to pass
ORDERED
That the case be and the same is allowed on contest against the Opposite Parties with cost of Rs.5,000/-
That the Opposite Parties are jointly and/ or severally directed to refund the money of Rs.8,34,000/- along with interest @9% to the complainant within 60 days (sixty days) from the date of this order.
That the Opposite parties are also jointly and severally directed to pay of Rs.20,000/- as compensation and Rs.5,000/- as litigation cost to the complainant within 60 days (sixty days) from the date of this order.
If, however the Opposite Parties fail or refuse to comply with the above mentioned orders then the complainant will be at liberty to put the decree in execution to get the desired relief.
Let copy plain copy of this order be supplied to the parties free of cost when applied for.
Member Member
Dictated and corrected by me
Member
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
ORDERED
That the case be and the same is allowed on contest against the Opposite Parties with cost of Rs.5,000/-
That the Opposite Parties are jointly and/ or severally directed to refund the money of Rs.8,34,000/- along with interest @9% to the complainant within 60 days (sixty days) from the date of this order.
That the Opposite parties are also jointly and severally directed to pay of Rs.20,000/- as compensation and Rs.5,000/- as litigation cost to the complainant within 60 days (sixty days) from the date of this order.
If, however the Opposite Parties fail or refuse to comply with the above mentioned orders then the complainant will be at liberty to put the decree in execution to get the desired relief.
Let copy plain copy of this order be supplied to the parties free of cost when applied for.
Member Member
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