Date of Filing: 25.10.2019. Date of Disposal: 04.09.2024
Complainant: Sukumar Roy, S/O Late Durgapada Roy, Khandoghosh Roypara, P.O.&P.S. Khandoghosh, Purba Bardhaman, Pin-713142.
-VERSUS –
Opposite Party : 1. Amit Kumar Chatterjee, S/O Sanat Chatterjee, Kalibazar near Girls’ School, P.S. Burdwan, District –Purba Bardhaman.
2. Dilip Kumar Jash,
3. Rathin Kumar Jash,
Both are sons of Lt. Amarendra Nath Jash and residents of Kalna Road, P.O.& P.S. Burdwan, District-Purba Bardhaman.
Present : Mrs. Lipika Ghosh - Hon’ble President-in-Charge.
: Mr. Atanu Kr. Dutta. - Hon’ble Member.
Appeared for the Complainant: Tamal Dey Ld. Advocate
Appeared for the Opposite Party: Dibyendu Pal Ld. Advocate
F I N A L O R D E R
Today is fixed for passing final order.
On 25.10.2019, the complainant has filed this application u/S 12 of the C.P. Act, against the O.Ps.
The case of the complainant, in brief, is that complainant has been living with his family in a remote area of a village namely Khandoghosh in the district of Purba Bardhhaman. As such, he intended to buy a flat for purpose of residential house in a developed area of Burdwan P.S. from the Op No.1 whereas the OP No.1 is the developer of the land in the locality for the purpose of making construction and selling by way of residential flat whereas the OP Nos. 2 & 3 are owners of the land over which the flat has been constructed by the OP No. 1 on the basis of the land development agreement and Power of Attorney has been given by them to the OP No.1 to sell and develop the land.
The above said complainant agreed to purchase a flat for residential purpose from the OP Nos. 1,2 & 3 constructed on the plot being R.S. Plot No. 499 /4134, L.R. Plot No. 1138, KH No. 2416 and 2417, Mouza –Nari , Ward No. 08 of Burdwan Municipality, P.S. Burdwan, Dist. Purba Bardhamna by an area of 680 Sq. ft. in the 5th floor (including Super-built up areas, ) 120 Sq. ft., parking spaces at the ground floor by a total cost of Rs. 19,75,000/- (Nineteen Lakh Seventy Five Thousand ) and in consequences amounting to Rs.8,50,000/- was advanced in this respect. As such an agreement for sale was duly registered on 28.11.2018 in between the complainant and the Ops bearing No. 020309220 for the year 2018 and registered at A.D.S.R, Burdwan and it was agreed to give possession the scheduled flat within 6 months from the date of agreement.
As per agreement and statement, OP Nos. 1,2 & 3 did not give any possession of the flat even after lapsing over a period of 7 months and all of a sudden the complainant met the Op Nos. 1,2 & 3 and told them about the negligent and fraudulent act as well as the agreement and the OP No.1 stated that he have no money at this juncture but will try his best to collect money but could not collect money for through loans from some financial institutions as such failed to complete the construction of the project and hand over the completed flat till to date.
The OP No.1 was requested by the complainant to return the money as taken for that flat and parking space and the OP No.1 acknowledged on 16.08.2019 either to return the money or give possession of the completed flat after a month from the date of his acknowledgment, the OP No.1 did not pay any heed of his words. As such, the complainant has been compelled to file such instant case about the deficiency and unfair trade practice of the Ops towards the complainant. In this regard, a legal notice has been issued to the Ops through the Ld. Advocate of Calcutta High Court, name P.K. Chattopadhyaya but the Ops did not pay any heed of their words.
So, the complainant filed this case praying for (i) direction upon the OP No.1 to refund the earnest money taken at the time of agreement for purchasing the flat i.e Rs. 8,50,000/- along with an interest @ 12% p.a. (ii) directing the OP No.1 to pay a sum of Rs.4,50,000/- as compensation due to unfair trade practice, (iii) directing the OP No.2 to pay a sum of Rs.2,00,000/- as compensation due to unfair trade practice, (iv) directing the OP No.3 to pay a sum of Rs. 2,00,000/- as compensation due to unfair trade practice, (v) directing the Ops jointly and severally a further sum of Rs.3,00,000/- to be paid as compensation for mental pain, agony and suffering for the whimsical act of the Ops.
Ops appeared by filing Objection denying all the material allegations contending inter alia that the complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed and the complaint is barred by the principles of estopple, waiver and acquiescence.
The Ops beg to state that OP Nos. 2 & 3 are the owner and possessor of R.S. Plot No. 499/4134 L.R. Kh. No. 2416 & 2417 and the OP Nos. 2 & 3 have no experience as well as financial weak and as such they approached before the OP No.1 in relation to the development of the above mentioned plot and the OP No.1 accepted the said proposal. The OP Nos. 2 & 3 executed a Power of Attorney which was registered in relation to all works for the development of the said plot in favour of the OP No.1.
The Ops in the present objection all other allegations of the complainant are denied by the Ops and as all the statements as has been made out are based on surmise and conjecture and as such the present case is liable to be dismissed with exemplary cost to these Ops.
Decision with Reasons.
In order to prove the case, the complainant has filed evidence –on affidavit and Xerox copy of documents. The Op No 2 &3 files evidence- on- affidavit and the complainant also filed questionnaire to the said evidence. OP No 2 &3 files reply. The complainant has also filed Written Notes of Argument. But the OPs did not file any Written Notes of Argument.
Perused the complaint, Written Version, evidence-on- affidavit on both sides and W.N.A of the complainant. We also perused the Xerox copy of the documents submitted by the complainant. No documentary evidence has been filed by the Ops. The complainant corroborated the fact of the case depicted in the complaint by evidence-on affidavit that the complainant booked such flat and the price of such flat was fixed at Rs. 19,75,000 /-.As such an agreement for sale was duly signed between the complainant and the OPs bearing No.020309220 for the year of 2018 duly registered on 28.11.18. From the said Agreement for Sale, it is found that the complainant has already paid Rs.8, 50,000/- . From the evidence-on-affidavit submitted by the complainant, it is clear that OP No.1 had no money at this juncture but will try his best to collect money but failed to complete the construction of the project and on 16.08.2019 the OP No.1 acknowledged either to return the money or given possession of the completed the flat after a month. After that a legal notice was issued to the Ops through Ld. Advocate of Calcutta High Court but the Ops did not pay any heed of their words.
It is the OP who has bounded duty to prove his case but the Ops could not prove the fact by producing cogent documents but the complainant has proved by showing Agreement for Sale bearing the signature of the Ops that he paid the said money for consideration value for purchasing the flat in question but the Ops failed to prove the same. It is also evident from the evidence of the complainant that even the Ops did not pay any heed to the request of the complainant for handing over the possession after development and they also did not return back the said amount to the complainant.
Having considered the above facts and circumstances of the case and evidence on record, it can be said that the Ops have committed deficiency in service and negligent in this case. Therefore, the Ops are bound to return the said amount of Rs.8,50,000/- as the complainant deposited as advance consideration money for purchasing the said flat to the Ops. As a result, the case succeeds.
Therefore, the complainant is entitled to get compensation and litigation cost in this case.
Hence, it is
ORDERED
That the Consumer Complaint No. 164/2019 be and the same is hereby allowed on contest against the Ops but without any cost.
The Op Nos. 1, 2 & 3 are jointly and severally liable to pay the said amount to the complainant.
The Ops are directed to pay a sum of Rs.8, 50,000/- (Rupees Eight Lakh Fifty Thousand only) to the complainant along with interest @ 8% p.a. from the date of depositing money within 45 days from the date of receipt of this order failing which the said amount shall carry further interest @ 10% p.a. till realization.
Ops are also directed to pay a compensation of Rs.25,000/- (Rupees twenty five thousand ) to the complainant. Ops are further directed to pay litigation cost of Rs.5,000/- (Rupees five thousand only) to the complainant.
Let a copy of this order be given to the parties on free of cost.
Dictated & corrected by me.
President-in-Charge
D.C.D.R.C., Purba Bardhaman
Member President-in-Charge
D.C.D.R.C., Purba Bardhaman D.C.D.R.C., Purba Bardhaman
