DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __58_ _ OF ___2017
DATE OF FILING : 2.5.2017 DATE OF PASSING JUDGEMENT: 19.12.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Shri Debasis Bhattacharya, son of Shri Debdas Byhattacharya, 3/45, Viveknagar, P.O Santoshpur, P.S Garfa, Kolkata-75.
- VERSUS -
O.P/O.Ps : 1. Shri Subrata Gupta, Prop. Uma Associates, s/o Sushanta Gupta of 6, Santoshpur West Road ( Earlier 11, Baikuntha Saha Road,) P.O Santoshpur, P.S Garfa, Kolkata-75.
2. Smt. Manju Naskar, wife of late Balai Chandra Naskar alias Balai Naskar, Ghoshpara, P.O & P.S Sonarpur, Dist. South 24-Parganas.
3. Sri Somnath Naskar, son of late Balai Chandra Naskar alias Balai Naskar, Ghoshpara, P.O & P.S Sonarpur, Dist. South 24-Parganas.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Refusal of the developer to refund the consideration price received by him from the complainant has galvanized the complainant to file the case under section 12 of the C.P Act, 1986, alleging deficiency in service on the part of the O.Ps.
The facts leading to the filing of the instant case may be epitomized as follows:
O.P-1 is the developer; O.P nos. 2 and 3 are the land owners of the subject property. One Sale agreement dated 5.5.2012 was executed by the developer in favour of the complainant and, therefore, the developer agreed to sell a self contained flat to the complainant in the building succinctly described in schedule to the agreement for a total consideration price of Rs.14,14,000/- from the developer’s allocation. The complainant has paid Rs.2,20,000/- up to 11.11.2013. The construction work is yet to be raised beyond the foundation of the building. Demand letter was served by the complainant on 3.8.2015 upon the O.P ,but the demand of the complainant went unheeded by the O.P-1. The developer is defaulter in terms and conditions of the agreement and, therefore, the complainant has filed the instant case, praying for passing order directing the O.P-1 developer to refund the consideration price received by him with interest and also for compensation etc. Hence, the case.
Service of notice upon O.P-1 has been presumed to be a good service ,having regard to the postal track report kept in the record. The said O.P has not turned up to contest the case and, therefore, the case is heard exparte against him.
It is O.P nos. 2 and 3 who have filed written statement ,wherein they have supported the case of the complainant. Their positive case is that they are not service providers of the complainant and, therefore, they are not liable to the complainant in any manner.
Upon the averments of the parties, the following points are formulated for consideration.
POINTS FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Are the complainants entitled to get relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed on behalf of both the parties and the same are kept in the record after consideration. Questionnaires, replies and BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 :
In the instant case, it has been stated on evidence by the complainant that a sale agreement was executed by the developer i.e O.P-1 on 5.5.2012 and thereby the developer agreed to sell a self contained flat to him for a total consideration price of Rs.14,14,000/-. It is further stated by him in his evidence that he paid Rs.2,20,000/- to the developer and that the developer has done nothing regarding the construction of the building beyond the foundation of the said building. So, it is none but the developer, who is the defaulter in terms of the agreement.
The O.P nos. 2 and 3 i.e the land owners have also supported the case of the complainant. In the circumstances we are of the opinion that the complainant is entitled to get refund of the price paid by him to the developer with compensation by way of interest.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed exparte against the O.P-1 with a cost of Rs.10,000/- and dismissed on contest against O.P nos. 2 and 3 without cost.
The O.P-1 is directed to refund Rs.2,20,000/- to the complainant with interest @15% p.a from the date of payment till full realization thereof 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 this 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
