West Bengal

South 24 Parganas

CC/25/2014

MIHIR KUMAR DASGUPTA S/O. Late Sudhansu Bhusan Dasgupta. - Complainant(s)

Versus

1. UTPAL CHAKRABORTY ,S/O. Sri Ullas Chakraborty Prop.- M/S. CHAKRABORTY ASSOCIATES. - Opp.Party(s)

14 Aug 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _25_ OF ___2014___

 

DATE OF FILING : 21.1.2014     DATE OF PASSING JUDGEMENT:  14.8.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             : Mihir Kumar Dasgupta,s/o late Sudhansu Bhusan Dasgupta , P-27, State Bank Park, P.S. Thakurpukur, Kolkata – 63, presently residing at P-44, State Bank Park, P.S. Thakurpukur, Kolkata – 63.

 

-VERSUS  -

 

O.P/O.Ps                            : Utpal Chakraborty, s/o Sri Ullas Chakraborty, Prop. M/s Chakraborty Associates P-74, State Bank Park, P.S. Thakurpukur, Kol-63.

 

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President                                    

            This is an application under section 12 of the C.P Act, 1986 filed by the complainant against the O.P on the ground that complainant entered into an agreement for sale on 2.6.2006 with the O.P M/s Chakraborty Associates/developers, Proprietor Utpal Chakraborty and according to the terms of the agreement he has paid the entire consideration money for the proposed flat together with extra amount for some additional work of the flat in 8 installments in all Rs.5,60,000/- . It has further stated that the only son of the complainant is a born-patient of Muscular Dystrophy (a very rare and incurable disease) ,for which huge money is required for his treatment of his son in a Nursing Home at any point of time. It has further stated that after lapse of three years he came to learn that the developer had been arbitrarily resold the said flat without consent and prior approval of him. Accordingly he claimed the entire amount with due interest immediately. The matter was informed to the Thakurpukur P.S and in their intervention developer immediately had given an undertaking on 16.11.2009 on a non-judicial stamp paper that he will refund the money in installments in a very short time. Thereafter, he has paid only Rs. 1 lacs when the son was struggling to survive in a Nursing Home and lastly on 10.8.2010 his son passed away with his unaccomplished desire to live in his own flat. The complainant disclosed himself as a Bank employee and obtained voluntary retirement in the year 2001 in order to look after his ailing son which was not possible  for his wife along to take care of his son. The entire amount of savings has already been exhausted to meet the expenses of his son’s treatment and also depend on the mercy of his relatives during the last phase of his son’s life. Again he has informed the matter to the Thakurpukur P.S. and by their intervention developer paid Rs.43,000/- only on 10.6.2012 and thereafter Rs.50,000/- on 12.10.2012.  Thus developer has paid only Rs. 1,93,000/- up to 12.10.2012 out of Rs.5,60,000/-. Thus Rs.3,67,000/- is remaining due and the complainant is living in a rented house on the basis of his stipulated monthly pension. Hence, this case praying for refund of Rs.3,67,000/- with interest from 2.6.2006 in its final settlement and Rs.3000/- for compensation and litigation cost of Rs.50,000/-.

            It may be mentioned here that O.P after appearance filed one application for non-maintainability of the complaint on 18.3.2014 which was disposed of by this Forum vide order no.8 dated 11.4.2014 and by that order maintainability petition was dismissed and since the O.P has not appeared on 3.3.2014, the case was fixed for exparte hearing and argument because statutory period is already over. The O.P although has not appeared on 3.3.2014 but challenged the order dated 11.4.2014 before the Hon’ble State Commission and Hon’ble State Commission disposed of the application vide R.P no. 55 of 2015 on 26.6.2015 and affirmed the impugned order passed by this Forum and lastly vide order no.18 dated 10.7.2015 record was put up on the strength of order of the Hon’ble State Commission and accordingly fix 24.4.2015 for further order. But O.P inspite of dismissal of the provisional application did not care to appear on 24.7.2015 for filing written version ,that is why case was fixed for exparte hearing and for BNA on 12.8.2015 and on that date O.P was , as usual, absence which is nothing but to grab the good money of the complainant for reasons best known to him ,that is why, we are compelled to hear this case in exparte.

            Points for decision in this case is whether the O.P has acted deficiency in service or unfair trade practice towards the complainant or not.

                                                                        Decision with reasons

            At the outset, it must be pointed out that the O.P has acted glaring example of deficiency of service as well as unfair trade practice not only by re-selling the flat in dispute after collecting the entire consideration money from the complainant but also knbowing the fate of his maintainability application before the Hon’ble State Commission, he did not appear and settle the dispute or contest the case by filing written version etc. Thus on a moment scrutiny we find from the documents lying in the record including the money receipts and agreement that the complainant has been able to prove his case and admission of the O.P thereafter on a stamp paper on 16.11.2009. So, we have nothing to disbelieve the case of the complainant which has already affirmed the legality and prosperity of the case by the Hon’ble State Commission while disposing R.P no.55 of 2014 on 26.6.2015.

            Accordingly, it is

                                                                        Ordered

That the case being C.C.no. 25 of 2014 is allowed with the knowledge of the O.P because he has appeared and challenged the maintainability of the case and after passing the order on maintainability petition the O.P has challenged the same before the Hon’ble State Commission, which we have already stated in the body of the judgement ,that is why, it cannot be said in exparte.

The O.P is directed to refund Rs.3,67,000/- along with interest @9% p.a from 2.6.2006 till its realization within 45 days from the date of this order .

The O.P is further directed to pay compensation to the tune of Rs. 2 lacs within that period and litigation cost of Rs.25000/- within that period ,failing which, further interest will carry @12% p.a till its realization.

We find that this is a glaring example of unfair trade practice, particularly when complainant was busy for looking after his only son who was suffering from rarest of the rare disease, taking advantage of payment of entire money together with extra money this unruly O.P re-sold the same to a third but did not pay any amount inspite of giving assurance. So, he has to pay Rs.1 lac as punitive damage to the complainant within 45 days from this date.

It may be mentioned here that if the O.P fails to comply any direction as stated above within the stipulated date, complainant is at liberty to execute the order through this Forum.

Let a plain copy of this order be served upon the complainant free of cost and a copy of this judgement be served upon the O.P through post as per address given in the cause title of this case.

 

 

Member                                               Member                                               President

 

 

 

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

 

Ordered

That the case being C.C.no. 25 of 2014 is allowed with the knowledge of the O.P because he has appeared and challenged the maintainability of the case and after passing the order on maintainability petition the O.P has challenged the same before the Hon’ble State Commission, which we have already stated in the body of the judgement ,that is why, it cannot be said in exparte.

The O.P is directed to refund Rs.3,67,000/- along with interest @9% p.a from 2.6.2006 till its realization within 45 days from the date of this order .

The O.P is further directed to pay compensation to the tune of Rs. 2 lacs within that period and litigation cost of Rs.25000/- within that period ,failing which, further interest will carry @12% p.a till its realization.

We find that this is a glaring example of unfair trade practice, particularly when complainant was busy for looking after his only son who was suffering from rarest of the rare disease, taking advantage of payment of entire money together with extra money this unruly O.P re-sold the same to a third but did not pay any amount inspite of giving assurance. So, he has to pay Rs.1 lac as punitive damage to the complainant within 45 days from this date.

It may be mentioned here that if the O.P fails to comply any direction as stated above within the stipulated date, complainant is at liberty to execute the order through this Forum.

Let a plain copy of this order be served upon the complainant free of cost and a copy of this judgement be served upon the O.P through post as per address given in the cause title of this case.

 

 

Member                                               Member                                               President