24....13.01.2022....
Today is fixed for delivery of judgment/final order.
Final order containing 5 pages is ready. It is sealed, signed and delivered in open Forum/Commission.
It is ordered that,
ORDERED
That the complaint case be and the same is hereby allowed on contest against the O.P. Nos. 2 and 3 with cost and allowed ex-parte against the rest with cost.
The O.Ps. are directed to refund the advance amount of Rs. 3,98,337/- with simple interest @6% p.a. w.e.f 03.06.2014 till realization to the complainant within 60 days from the date of this order. The O.Ps. are also directed to pay compensation of Rs. 1,00,000/- and Rs. 20,000/- as litigation cost to the complainant within 60 days from the date of this order. Both the O.Ps. are jointly and severally liable to pay the advance amount with interest, compensation and litigation cost to the complainant by 60 days from the date of this order.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAS
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C.NO. 143 OF 2019
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
21.08.2019 06.09.2019 13.01.2022
Present : President : Asish Kumar Senapati
Member : Sangita Paul
COMPLAINANT : 1. Sri Debashis Kundu, S/o – Nepal Chandra Kundu, Residing at 8/6 Tansen Road, B Zone, Durgapur - 713205, District – Burdwan, P.S. – Arobindo Police Station.
Versus
O.P/O.Ps :1. M/S. Greenhaven Rrealty Pvt.Ltd.
Registered office at premises being no. GF-12, 1953, Rajdanga Main Road, (1st Floor ), Kolkata- 700107, P.S.-700107, P.S.-Kasba.
2(a). Mr. Biswanath Mondal, S/O Sri Mangal Chan dra Mondal, Chairman cum Managing Director. and authorised Signatory, Of M/S. Greenhaven Realty Pvt. Ltd., Registered office at premises being no. GF-12, 1953, Rajdanga Main Road, (1st Floor ), Kolkata- 700107, P.S.-700107, P.S.-Kasba.
2(b). Mr. Biswanath Mondal.
Residing at Village- Purba Goyal Bati Kheyadaha, Sonarpur, Dist. South 24- Pargnas, Kolkata- 743369.
3(a). Mrs. Ira Mondal, Wife of not known, Director of M/S. Green haven Realty Pvt. Ltd.
Registered office at premises being no. GF-12, 1953, Rajdanga Main Road, (1st Floor ), Kolkata- 700107, P.S.-700107, P.S.-Kasba.
3(b). Mrs. Ira Mondal,
Residing at Village- Purba Goyalbati, Kheyadaha, Sonarpur, South 24- Parganas, Kolkata- 743369.
4(a). Mr. Sudipta Kumar Ghosh, S/O Sisir Kumar Ghosh. Director of M/S. Green haven Realty Ltd.
Registered office at premises being no. GF-12, 1953, Rajdanga Main Road, (1st Floor ), Kolkata- 700107, P.S.-700107, P.S.-Kasba.
4(b). Mr. Sudipta Kumar Ghosh, S/O Sisir Kumar Ghosh, Residing at Premises being no. C-181, Baisakhi Abasan Block AG, Salt Lake, Kolkata- 700091.
5(a). Smt. Paroma Pathak, Daughter of Sri Apurba Pathak, Director of M/S. Green haven Realty Ltd.
Registered office at premises being no. GF-12, 1953, Rajdanga Main Road, (1st Floor ), Kolkata- 700107, P.S.-700107, P.S.-Kasba.
5(b). Smt. Paroma Pathak, Daughter of Sri Apurba Pathak. residing at premises being no. 129, Jessore Road, Dum Dum, P.S. Dum Dum, Kolkata- 700055.
Advocate for the Complainant : Smt. Suchitra Chakraborty
Advocate for the O.P. Nos. 2 & 3 : Sri Prasanta Mondal
Sri Asish Kumar Senapati, President
One Sri Debashis Kundu (hereinafter referred to as the complainant) filed the case against M/S. Green Heaven Realty Pvt. Ltd. and 8 others (hereinafter referred to as the O.Ps.) praying for payment of Rs. 5,18,702/- or to pay Rs. 3,98,337/- along with interest, compensation of Rs. 3 Lac and litigation cost against the O.Ps. alleging deficiency in service.
The sum and substance of the complaint is as follows:
The complainant was interested to purchase a plot of land to build his home and the O.P. NO. 1 represented by O.P. Nos. 2, 3, 4 and 5 invited application for Green City Sonarpur Project and the complainant paid Rs. 90,000/- through cheques as 20% valuation of the plot and the O.Ps. allotted plot No. 2B138 in Green City Sonarpur Project vide letter dated 23.03.2012. That the complainant entered into an agreement for sale dated 19.07.2012 for purchase of 2 Kathas of land at a consideration of Rs. 2,50,000/- and the complainant paid Rs. 1,03,336/- form January, 2012 to July, 2012. That the complainant paid Rs. 3,98,337/- from 20.03.2012 to 03.06.2014 against proper money receipt. That in July, 2014 the O.Ps. came with another proposal for modification of their project as plot with Bunglow and asked for additional payment when the complainant informed the O.Ps. that he was not interested to accept the offer and requested them to refund the advance with interest. Ultimately, the O.P. No. 1 issued a cheque being No. 008406 dated 22.06.2015 amounting Rs. 5,18,702/- drawn on ICICI Bank, Kasba Branch as refund of advance amount with interest. That the complainant presented the cheque to his banker HDFC Bank on 16.07.2015 but the same was dishonored with remarks “Insufficient fund”. The complainant requested the O.P. No. 1 and others to pay the amount but of no result. Hence, the case has been filed praying for reliefs.
The O.P. Nos. 2(b) and 3(b) contested the case by filing W.V. on 17.12.2019 contending that the case is not maintainable. It is the case of the O.Ps. that the O.P. No. 2(b) has 60% share in O.P. No. 1 and one Sudipta Kumar Ghosh and Parama Pathak have jointly 40% share in O.P. No. 1. That the said Sudipta Kumar Ghosh and Parama Pathak in connivance with some creditors breached the trust. The O.P. No. 2 (b) had already paid the total sum of Rs. 15,00,000/- to 15 creditors. That there is no cause of action. They pray for dismissal of the complaint.
It appears from the cause title that the O.P. Nos. 2(a) and 2(b), 3(a) and 3(b), 4(a) and 4(b), 5(a) and 5(b) are same persons. The O.P. Nos. 4 and 5 did not contest the case.
On the basis of the above versions, the following points are framed for proper adjudication of the case :-
- Is the complainant consumer under the provisions of C.P Act?
- Is there any deficiency in service on the part of the O.Ps.?
- Is the complainant entitled to get any relief against the O.Ps., as prayed for?
DECISION WITH REASONS
Point Nos. 1, 2 and 3 :-
The Ld. Advocate for the complainant submits that the complainant is a consumer as he entered into an agreement for sale with the O.Ps. for purchase of a plot of land and at a consideration of Rs. 2,50,000/-. It is argued that the O.Ps. did not refund the advance amount with interest in spite of repeated request. It is urged that the O.P. No. 2 issued a cheque amounting Rs. 5,18,702/- in favour of the complainant on 22.06.2015 but the same was dishonored due to insufficient fund. He prays for a direction upon the O.Ps. so that they may pay the said amount to the complainant with compensation of Rs. 3,00,000/- and litigation cost.
None appears on behalf of the O.Ps. at the time of hearing of argument.
We have gone through the materials on record. It appears from the photocopy of documents that the complainant entered into an agreement with the O.Ps. on 19.02.2012 and subsequently on 17.08.2013 for purchase of a plot of land. It also appears from the photocopies of the money receipts and the statements issued by the O.P. No. 1 that the complainant paid Rs. 3,98,337/- up to 03.06.2014. It is the specific case of the complainant that the O.P. No. 2 issued the cheque amounting Rs. 5,18,702/- in favour of the complainant on 22.06.2015 as refund of advance amount with interest but the same was dishonored due to insufficient fund. The O.P. Nos. 2 and 3 took the plea that the O.P. No. 2 had 60% share in O.P. No. 1 and he issued cheque amounting Rs. 15,00,000/- to discharge his liability. The O.P. Nos. 2 and 3 did not mention as to why the cheque issued in favour of the complainant was dishonored. There is no document to believe the statements of the O.P. Nos. 2 and 3 that the O.P. No. 2 had only 60% share in O.P. No. 1 and he discharged his liability. On a careful consideration, we find that the complainant had informed the O.Ps. that he is interested to get back his advance with interest. Therefore, we have no hesitation to hold that the complainant is a consumer and the O.Ps. have deficiency in service. In our considered view, the complainant is entitled to get back his advance amount of Rs. 3,98,337/- with simple interest @6% p.a. w.e.f 03.06.2014 till realization, compensation of Rs. 1,00,000/- and litigation cost of Rs. 20,000/- against the O.Ps. We think that the O.Ps. are jointly and severally liable to pay the advance amount with interest, compensation and litigation cost to the complainant.
All points are thus disposed of.
In the result, the complaint case succeeds.
Fees paid are correct.
Hence, It is
ORDERED
That the complaint case be and the same is hereby allowed on contest against the O.P. Nos. 2 and 3 with cost and allowed ex-parte against the rest with cost.
The O.Ps. are directed to refund the advance amount of Rs. 3,98,337/- with simple interest @6% p.a. w.e.f 03.06.2014 till realization to the complainant within 60 days from the date of this order. The O.Ps. are also directed to pay compensation of Rs. 1,00,000/- and Rs. 20,000/- as litigation cost to the complainant within 60 days from the date of this order. Both the O.Ps. are jointly and severally liable to pay the advance amount with interest, compensation and litigation cost to the complainant by 60 days from the date of this order.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
Dictated and corrected by me
President
