DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
North 24 Pgs., BARASAT
C.C. No./104/2023
Date of Filing Date of Admission Date of Disposal
13.04.2023 26.04.2023 05.01.2024
Complainant/s:- | - SMT INDRANI MUKHOPADHYAY
W/o Biswanath Mukhopadhyay Residing at Barnali Apartment, Flat No. – 1C, S N Banerjee Road, Fishery Gate, Post Office, and Police Station – Barrackpore, Kolkata – 700120, District – North 24 Parganas, West Bengal. - SMT MINATI BANDYOPADHYAY
W/o Sri Ashok Kumar Bandyopadhyay Residing at Dipali Apartment, (Ground Floor C), Near Eastern Tower, Ghatakpara, S N Banerjee Road, Fishery Gate, Post Office, and Police Station – Barrackpore, Kolkata – 700120, District – North 24 Parganas, West Bengal. -Vs- |
Opposite Party/s:- | - BHAGABATI ENGINEERING (DEVELOPERS)
A proprietorship firm, Having its registered office at – 7 No. RampadoHaldar Road, Beniapara, Monirampurm Post Office, and Police Station – Barrackpore, Kolkata – 700120, District North 24 Parganas, West Bengal. Represented by its Proprietor, - SANDIPAN BANERJEE
S/o Shanti Kumar Banerjee Residing at 7 No. RampadoHaldar Road, Beniapara, Monirampurm Post Office, and Police Station – Barrackpore, Kolkata – 700120, District North 24 Parganas, West Bengal. - SRI BIKASH MUKHERJEE (LANDOWNER)
S/o Late Adhir Kumar Mukherjee, Residing at – Hriday Nath Sadhukhan Road, JoraShib Mandir, Manirampur, 7 No. RampadoHaldar Road, Beniapara, Monirampurm Post Office, and Police Station – Barrackpore, Kolkata – 700120, District North 24 Parganas, West Bengal. |
P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT /FINAL ORDER
Complainants above named filed this complaint against the aforesaid Opposite Parties U/s 35 of the Consumer Protection Act, 2019 r/w Section 37 and 38 of Consumer Protection Act, 2019 praying for direction to the O.Ps to refund the entire consideration money amounting to Rs. 10,00,000/-, compensation amounting to Rs. 2,00,000/-, cost of the case and other reliefs.
They alleged that O.Ps approached the Complainants for selling of flat and Complainants were agreed to purchase the same. Consideration money was fixed Rs. 20,98,000/- relating to the said transaction one agreement for sale was prepared and executed. Complainants paid Rs. 10,00,000/- through bank cheque and O.Ps acknowledged
the same. Subsequently due to personal inconvenience Complainants expressed for cancellation of aforesaid agreement for sale and Opposite Parties were agreed.
Thereafter one cancellation of agreement was prepared on 27/04/2022 and O.P No. 1 and 2 had issued one post dated cheque for the aforesaid amount of Rs. 10,00,000/- but said cheque was not encashed as drawer’s signature was differed on 28/02/2023. The aforesaid act of O.Ps are nothing but deficiency in service.
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C.C. No./104/2023
Hence, the Complainant filed this case.
On perusal of Order No. 3 dated 09/06/2023 we find that notice served upon O.Ps on 28/04/2023 but they did not turn up before this Commission nor filed W/V. Case is running ex-parte against them as per order dated 12/06/2023.
TRIAL
During Trial Complainant No. 1 filed affidavit-in-chief as O.Ps not yet appeared in this record so no questionnaires were filed on behalf of the O.Ps. Even O.Ps did not file any evidence.
DOCUMENTS
Complainants filed copy of the following documents:-
- Copy of agreement for sale dated 15/11/2021…1set..xerox.
- Copy of cancellation of agreement for sale dated 27/04/2022…1set..xerox.
- No due certificate issued by UCO Bank dated 11/05/2022.….1 sheet….xerox.
- Money receipt issued by Sandipan Banerjee O.P of this case dated 16/11/2021….1 sheet….xerox.
- Cheque issued by Sandipan Banerjee O.P of this case dated 27/02/2023 vide no. 000708….1 sheet….xerox.
- Return note issued by SBI, Barrackpore Branch….1 sheet…Xerox.
BNA
Complainants filed BNA.
Decisions with Reasons:-
We have heard the Ld. Advocate for the Complainant. Perused the petition of complaint, affidavit-in-chief and documents filed by the Complainants. Original copy of aforesaid document were produced at the time of hearing of argument and these were returned to the Ld. Advocate for the Complainants.
During hearing Ld. Advocate for the Complainants submitted that one agreement for sale was executed on 15/11/2021 in favour of Complainants. He has filed copy of the same.
On perusal of said document we find that this agreement was executed in favour of the Complainants and same is binding upon the O.Ps.
During hearing Ld. Advocate for the Complainants also submitted that one cancellation of agreement for sale was executed on 27/04/2022. He has filed the copy of the same.
On perusal of said document we find that this cancellation agreement was executed on 27/04/2022 and same is binding upon the Ops.
During hearing Ld. Advocate for the Complainants also submitted that relating to the execution of said cancellation of agreement for sale dated 27/04/2022 O.P No. 2 Sandipan Banerjee handed over one cheque in the name of Complainant No. 1 and Complainant No. 1 deposited the same in his bank account. But said cheque was not encashed as signature of drawer found differs.
We have carefully gone through the affidavit-in-chief filed by the Complainant No. 1 which the Complainants filed in support of their contention. Said affidavit-in-chief is nothing but unchallenged testimony and we do not find any reason to disbelieve the same.
On perusal of aforesaid documents we find that O.P No. 2 issued one cheque in favour of the Complainant No. 1 amounting to Rs. 10,00,000/-. By this conduct O.Ps have admitted that one deed of cancellation of agreement for sale was executed by and on behalf of O.P No. 1 and 2 and in terms of the said agreement they gave cheque of Rs. 10,00,000/- in favour of the Complainant No. 1.
Placing reliance upon the said affidavit-in-chief as well as documents on record we find that said cancellation of agreement for sale was executed in favour of the Complainants by the O.Ps.
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On perusal of copy of return memo issued by State Bank of India, Barrackpore Branch we find that said cheque was dishonoured on the ground of “drawers signature differs”. It is also clear before us that O.P No. 2 intentionally put his signature in different handwriting and for that reason bank authority found that signature of O.P No. 2 is different than the specimen signature which has given to the bank in connection with account of the O.P No. 2. Aforesaid act of O.P No. 2 is nothing but unchallenged testimony.
On perusal of record we find that Complainant is the consumer and O.P No. 1-3 are the service provider.
Having regard to the aforesaid discussion it is clear before us that Complainants have able to established their grievance by sufficient documents beyond reasonable doubt.
Accordingly, they are entitled to relief as per their prayer.
In the result, present case succeeds.
Hence,
It is Ordered:-
That the present case be and the same vide no. CC/104/2023 is allowed ex-parte against the O.P No. 1-3 with cost of Rs. 5,000/- to be paid by O.P No. 1-3 in favour of the Complainant.
O.P No. 1-3 jointly or severally are directed to refund Rs. 10,00,000/- (ten lakhs) in favour of the Complainants along with 10% interest from 27/02/2023 to till the date of actual payment positively within 45 days from this day, failing which Complainant shall have liberty to put this order into execution.
O.P No. 1-3 jointly or severally are further directed to pay Rs. 1,00,000/- in favour of the Complainants as compensation positively within 45 days from this day, failing which aforesaid amount shall carry interest @ 10% p.a. from this day to till the date of actual payment and Complainant shall have liberty to put this order into execution.
Let a copy of this order be supplied to both the parties free of cost as per CPR, 2005.
Dictated and Corrected by me
President
Member President
