Orissa

Cuttak

CC/37/2019

Smt Sushama Das - Complainant(s)

Versus

Arun Swain - Opp.Party(s)

S K Patri & associates

25 May 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DIUSPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                                   C.C.No.37/2019

               Smt. Sushama Das,

W/O:Chandramani Pradhan  of Kathakota,

P.O:Anolipatana,Via:Rahama,

P.S:Kujanga,

Dist:Jagatsinghpur.

At present:H.O:Santi Sadhana Pati,

A:T.V.Road,Near Function Palace,

P.O:Tulasipur,Cuttack-753008.                                                                  ... Complainant.

 

                                                Vrs.

Arun Swain,

S/O:Late Harihar Swain,

At:Hindolokothi,Bijupattnaik Square,

P.O:Tulasipur,P.S:Bidanasi,

Dist:Cuttack.... Opp. Party.

                       

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    13.03.2019

Date of Order:  25.05.2022

 

For the complainant:          Mr. S.K.Patri,Adv. & Associates.

For the O.P.       :                  Mr. S.Acharya,Adv. & Associates.

 

Sri Sibananda Mohanty,Member.

                                               

            The case of the complainant is that the O.P is carrying on land business at Cuttack town and he had persuaded the complainant to purchase a piece of land with house at Tulsipur ,Cuttack. On 22.8.11 the complainant by way of A/c payee cheque bearing No.002534 dt.22.8.11 of Allahabad Bank,Kujang Branch paid  Rs.3,00,000/- to the O.P towards part consideration money for the said property.  The O.P also assured her to fullfill such amenities within 3 to 4 months.    But the O.P after receipt of the amount did not take any step for providing plot and house.  She repeatedly requested him to provide her plot with house but he turned a deaf ear to her request.  Thereafter the complainant sent a legal notice on 26.4.18 to the O.P. requesting him to provide the land/house at Tulsipur in Cuttack town besides claiming other reliefs.  But the O.P did not respond to said notice.  Hence she has filed the present case for a direction to O.P to pay Rs.3,00,000/-, which she had paid by way of cheque with interest @ 18% per annum, so also claimed  compensation for mental agony and harassment Rs.1,20,000/- alongwith cost of litigation of Rs.53,200/-. 

2.         The O.P appeared and filed his written version.  It is stated by him that the cause of action to file the case is barred by time and the complainant is not a consumer.  It is further stated by him that the complainant was a tenant under him and occupied four rooms in the first floor of the building on 22.8.11 @ of Rs.8000/- per month.   The complainant paid a sum of Rs.3,00,000/- by way of A/c payee cheque towards the advance to the O.P on the same day and he issued receipt to the complainant, which is filed by the complainant as Annexure-1.  The above amount has been adjusted towards monthly rent of the O.P.  After adjustment of the above amount in 3 years and 1 month, the complainant neither paid house rent nor vacated his house after repeated reminder made by him.  The said house of O.P was mortgaged in a bank. The complainant and other tenants did not pay the house rent regularly; hence he could not pay the instalments to the bank for which in the year 2018 the bank took possession of the house with the help of Bidanasi Police.  Thereafter the complainant was forcibly driven away from the occupied room by the police.  The complainant is to pay the arrear house rent for 3 years @ Rs.8000/- per month to O.P.  The complainant in order to avoid payment of such rent, has filed the present  false case.  Hence it is prayed by him to dismiss the case with cost.

            The complainant has filed the documents in support of her case and filed evidence on affidavit.  She also filed evidence affidavit of one Rashmi Ranjan Pradhan,Alok Kumar Swain & Balaram Nayak in support of her case.  The O.P. has neither filed any document nor has filed any evidence on affidavit in his support.

3.         Keeping in mind the averments as made in the complaint petition as well as in the written version, this Commission feels it proper to settle the following issues in order to arrive at a valid conclusion.

            i.          Whether the complainant is a consumer?

            ii.         Whether the case as filed is maintainable?

            iii.        Whether the case is barred by limitation?

            iv.        Whether there is any deficiency on the part of O.P?

            v.         Whether the complainant has cause of action to file this case?

            vi.        Whether the complainant is entitled to get the reliefs as claimed by her?

Issues No.1 & 2.

            The complainant had paid Rs.3,00,000/- towards part consideration money for purchase of property with house at Tulasipur,Cauttack vide Annexure-1 to O.P.  But the O.P has not provided the same.  Hence the complainant is a consumer under the O.P and the present case is maintainable.

Issue No.3.

            The complainant had paid Rs.3,00,000/- towards part consideration money for the property with house at Tulsipur,Cuttack by way of cheque bearing No. No.002534, dt.22.8.11 of Allahabad Bank,Kujang Branch.  Thereafter, the complainant approached repeatedly to the O.P to provide her property with house.  But the O.Ps did not bother.  Thereafter she sent the advocate’s notice on 26.4.2018  to the O.P to provide property with house.   But the O.P did not respond.  Hence, the cause of action is a  recurring one as the O.P has not provided the property with house to the complainant till date.  Hence, the case is filed within the limitation period.  So this issue is answered in favour of the complainant.

 

Issue No.4 & 5.

            The complainant had paid Rs.3,00,000/- towards the part consideration amount for the plot and house at Tulsipur.The O.P in his version admitted to have received Rs.3,00,000/- as per Annexure-1, filed by the complainant.  The O.P is not disputing Annexure-1 but surprisingly contrary to it, he is taking plea that he has received such amount towards advance rent.  This plea of O.P is after thought, hence not believable.  The complainant in order to prove her case has filed evidence affidavit and also filed evidence affidavits of witnesses namely, Rashmi Ranjan Pradhan,Alok Kumar Swain & Balaram Nayak.  All the witnesses in their evidence on affidavit have stated that they all are eye witnesses to Oral Agreement made between complainant and O.P including issuance of money receipt by O.P.   They all have stated that they were present when the O.P was receiving the part consideration money towards property and house at Tulsipur,Cuttack as stated by the complainant, so also, stated that the O.P had given money receipt to that effect.  The O.P has not disputed such evidence.  Hence it is safely concluded that the O.P had received part consideration money from the complainant for the property with house at Tulsipur,Cuttack but had not provided the same to the complainant.  Hence the complainant is a consumer and the O.P has committed deficiency in service in not providing the house to the complainant and the complainant has cause of action to file this case.  Hence these two issues are answered in favour of the complainant.

Issue No.6.

            From the above discussion, it is clear that the O.P has committed deficiency in-service and the complainant is entitled to the reliefs as claimed by her.  Hence it is so ordered;

                                                            ORDER

            The case allowed in part against the O.P.  The O.P is hereby directed to pay Rs.3,00,000/- to the complainant with interest @ 12% per annum from 22.8.11 till the payment is made.  The O.P is also directed to pay compensation of Rs.50,000/- towards mental agony and harassment as well as  Rs.10,000/- towards cost of litigation. This order is to be carried out within a month hence.

            Order pronounced in the open court on the 25^th  day of May,2022 under the seal and signature of this Commission.

                                                                                                                               

                                                                                                                             

                                                                                                                                                                                                                       

                                                                                                               Sri Sibananda Mohanty

                                                                                                                            Member.

 

 

                                                                                                                              Sri Debasish Nayak

                                                                                                                                        President