West Bengal

South 24 Parganas

CC/463/2015

Chandana Banik W/O Babla Banik. - Complainant(s)

Versus

1.Sri Santu Roy S/O Late Ranjit Roy. - Opp.Party(s)

27 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _463_ OF ___2015_

 

DATE OF FILING : 16.11.2015                   DATE OF PASSING JUDGEMENT:  27.02.2017

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Sharmi Basu   & Subrata Sarker

                                                                             

COMPLAINANT        :    Chandana Banik, w/o Babla Banik of Nangi Kachari Para, P.O Batanagar, P.S. Maheshtala, Kolkata –1 40.

 

-VERSUS  -

 

O.P/O.Ps                            :     1. Sri Santu Roy,s/o late Ranjit Roy , Nangi Pore Para, P.O Batanagar, P.S. Maheshtala, Kolkata – 140.

                                                2.     Sri Dilip Maity, s/o late Mahadev Maity of Battala Kismat Nangi, P.O Batanagar, P.S. Maheshtala, Kolkatsa – 140.

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This case is running in exparte since 7.12.2016 and complainant took time on flimsy ground which is not sufficient ground under the purview of the C.P Act, 1986 and identical ground was also submitted today. When the prayer was taken up for consideration none appears on behalf of the complainant.  Accordingly case is taken up for passing necessary order since there is no provision of hearing argument save and except filing BNA but complainant neither filed BNA nor take part in the argument  in this backdrop.

The complainant’s case in sho9rt is that complainant made an agreement with the O.Ps in respect of the aforesaid property and complainant paid Rs.5,20,000/- to the O.Ps as advance and O.Ps received the amount . But in terms of the agreement for sale deed was not executed within six months and in terms of the agreement O.P shall pay Rs.10 lacs to the complainant if ailed to execute the registered deed. It has further stated that O.Ps already paid Rs. 7 lacs to the complainant and complainant acknowledged the same but balance Rs.3 lacs are not paid inspite of repeated requests and thereafter on 30.7.2015 Advocate’s letter was net for payment of balance money ,for which this case is filed with a prayer to direct the O.Ps to pay balance amount of Rs.3 lacs and Rs.50,000/- for harassment, Rs.20,000/- towards litigation cost etc.

The O.Ps did not appear and contest the case inspite of serving summon, for which case is running against them in exparte.

Points for decision in this case is whether there is any deficiency in service on the aprt of the O.ps or not.

                                                            Decision with reasons

From page 4 of the agreement we find that one Babla Banik, who happens to be the husband of Chandana Bani, (complainant) received Rs.3 lacs on 27.1.2015 from the O.Ps towards financed money and again received Rs. 3 lacs on 1.7.2015 towards financed money of land. Thereafter again received Rs. 74000/- from the O.Ps.

Now, we find that complainant made an agreement ( if at all) as financer of the O.Ps that is why complainant at the time of argument fled away and sent some prayer from time to time on and from 7.12.2016 ,28.12.2016, 13.2.2017 . The reason is that complainant has nothing to produce and documents clearly demonstrates that the complainant through her husband financed money to the O.P and thereafter collected only Rs.7 lacs as per complaint case. But from the documents it reveals that Rs.6,74,000/- was refunded by the O.Ps out of Rs.5,20,000/-. The cardinal principle of Law in view of the Judgment of the Hon’ble National Commission reported in 2014(3) CPR 76 that once respondents had claimed refund amount then she ceased to be a consumer.

Here in the instant case complainant claimed that he paid Rs.5,20,000/- and already got Rs.7 lacs of Rs.6,74,000/- , as the case may be, thus once accepted the money, complainant ceased to be a consumer. It has observed by the Hon’ble National Commission in para 3 that “It is well settled that any litigants should not approach any judicial Forum with an unclean hands and concealing the materials facts he is not entitled to any relief in equity”.

Under this circumstances we find that complainant has already concealed what purpose money was financed and it was not the desire of the complainant or her husband for purchasing land for development or anything but accepted Rs. 7 lacs out of Rs.5,20,000/- before filing the case.

So, this type of complaint should be dismissed treating vexatious complaint as per direction of the Hon’ble National Commission in para 13 ,for which cost of Rs.10,000/- should be imposed agaisnt the complainant which will be deposited in the Consumer Legal Aid Fund within four weeks from the date of this order.

With that observation, it is

                                                                                    Ordered

That the case is dismissed on the ground that complainant is not a consumer within the purview of the C.P Act, 1986 with cost of Rs.10,000/- to be paid by the complainant within 30 days from the date of this order, which will be deposited in the Consumer Legal Aid Fund, failing which interest @8% p.a will carry from the date of default till its realization.

This order is passed  on the basis of the order passed by the Hon’ble National Commission reported in 2003(CPR)76 and we also find that this type of unfairness as well as vexatious complaint should be stopped.

If the complainant failed to pay the amount of Rs.10,000/- within four weeks , then Register-In-Charge will file execution case to collect the money .

Complainant is at liberty to approach before the Civil Court having its jurisdiction for recovery of money ,if any.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

Member                                                      Member                                                                President

Dictated and corrected by me

                               

                        President