Date of Filing: 09-05-2016 Date of Final Order: 30-05-2017
Sri Gurupada Mondal, President.
This is an application under Section 12 of CP Act, 1986 filed by one Samaresh Narayan Ghosh against Darshil Infra Project (P) Ltd. and Prasanta Kumar Sarkar, Director of Darshil Infra Project (P) Ltd. praying for refund of Rs.1 lakh alongwith interest, compensation of Rs.25,000/- for mental pain, agony and unnecessary harassment, Rs.25,000/- for deficiency of service and unfair trade practice and Rs.10,000/- as litigation cost.
The case of the Complainant in short is that OP No. 2 is the Director of OP No.1. The OP No.1 made an advertisement for selling of multi-storied Apartments. The Complainant had necessity to purchase one residential flat measuring 1000 sq. ft. at Cooch Behar and to that effect, the Complainant contacted with the OP No.2 and made an oral agreement to purchase the flat under OP No.1. The Complainant made an oral agreement in presence of Complainant’s family members and deposited Rs.1 lakh by cheque being No.988313 dated 15.09.14. It was further agreed that the price of the said flat would be Rs.15 lakh. The OPs received the cheque and promised to make a written agreement within 15 days from that date and also promised to render services to the Complainant. The OP No.2 withdrew the said money on 16.09.14.
Further case of the Complainant is that the Complainant went to the Office of the OPs to collect the said agreement and money receipt but inspite of repeated requests to the OPs, the OPs did not handover the agreement as well as money receipt to the Complainant. Accordingly, the Complainant contacted with the OP No.2 over telephone and requested either to refund the advanced money of Rs.1 lakh or to enter into sale agreement. The OP No.2 assured the Complainant over telephone that he would refund the advanced money of Rs.1 lakh in lieu of possession of the said flat within a very short time but no action was taken by the OPs. According to the Complainant, the OPs had an ill-motive and were dragging the matter causing mental pain, agony and unnecessary harassment. According to the Complainant, the OPs had adopted an unfair trade practice which amounts to deficiency of service. As such, the Complainant has filed the instant case against the OPs for proper Redressal.
The OPs filed w/v denying all material allegations contending inter-alia that the instant complaint is not maintainable and the complainant has no cause of action to file the instant case. It is also alleged that Complainant is not a consumer as per Consumer Protection Act and this Forum has no jurisdiction to try this case.
Specific case of OPs is that one Raju Mitra of Hazrapara under Kotwali P.S, Dist. Cooch Behar was well acquainted with the Complainant since long. The Complainant and his family members came to Cooch Behar from Dinhata and started living at Hazrapara in front of the house of Raju Mitra as tenant. Thereafter, the Complainant, by accompanying Raju Mitra met with the OP No.2 and expressed his willingness to purchase a flat at Mukul Narayan Apartment, Hazrapara, Cooch Behar in the name of his wife and daughter. Accordingly, the Complainant and his family members visited Mukul Narayan Apartment and chose a flat No. B-1 measuring 1273.60 sq. ft. super built area at the first floor. On negotiation in presence of the said Raju Mitra, total consideration price of Rs.30,34,280/- was fixed and the Complainant agreed to pay Rs.1 lakh as an advance before execution of the deed agreement as booking money. Thereafter, the Complainant paid Rs.1 lakh to the OP No.2 by issuing a cheque.
It is further alleged that in the middle of October, the deed agreement was typed and prepared at the Office of the OP N o.1 in presence of Raju Mitra and the Complainant. After typing, the said deed agreement was read over to the Complainant and he received a photocopy of the said agreement. The Complainant expressed that he would come back after 2/3 days and would meet with the OP No.2 alongwith his wife and daughter to execute the deed agreement by both parties simultaneously. Thereafter, new purchaser came to the Office of the OPs in order to purchase the said flat but the OPs denied to sell the said flat to the new purchaser as the said flat has already been booked. The OPs suffered a great financial loss for the same.
On the basis of the aforesaid facts, the OPs prayed for dismissal of the case with cost.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Perused the entire documents in the record and also heard the argument as advanced by the parties at length. Peruse the Evidence on affidavit and W/Ar. of both parties.
Point No.1.
From the averment of the Complainant as well as w/v filed by the OPs, we find that the OPs wanted to sell a flat to the Complainant’s wife and daughter and to that effect, the Complainant paid Rs.1 lakh as an advance. Therefore, the relations between the Complainant and the OPs are buyer and sellers and thus, the Complainant is a consumer. Hence, this point is decided in favour of the Complainant.
Point No.2.
As per version of the complaint and its w/v, we find that the Complainant wanted to purchase a flat under the OPs and to that effect, the Complainant made an advance of Rs.1 lakh to the OPs. The said transaction took place within Cooch Behar town. The Office of the OP No.1 is situated within Cooch Behar town. The Complainant is the resident of the district of Cooch Behar. The cause of action took place at Cooch Behar. Therefore, we hold that this Forum has territorial jurisdiction to try this case. The pecuniary jurisdiction limit of this Forum is Rs.20 lakh but the claim of the Complainant is much less. Therefore, this Forum has territorial as well as pecuniary jurisdiction to try this case.
Point No.3 & 4.
Both the points are taken up together for the convenience of discussion as well as the points are related with each other.
The case of the Complainant is that the Complainant wanted to purchase a flat under OP No.1 Project measuring 1000 sq. ft. at a consideration price of Rs.15 lakh and to that effect, the Complainant made an advance of Rs.1 lakh by issuing a cheque being No.988313 dated 15.09.14 drawn on SBI, Dinhata Branch, Cooch Behar. The OPs promised to enter into a written agreement within 15 days from the date of money receipt. The Complainant showed his eagerness to enter into the agreement but the OPs avoided the matter on several occasions on flimsy ground.
According to the Complaint case, the area of the flat was 1000 sq. ft. and value of the said flat was 15 lakh. From the evidence on record, it is evident to us that the OP No.2 acknowledged that he received a sum of Rs.1 lakh from the Complainant by cheque. The Complainant and his family members visited Mukul Narayan Apartment, Hazrapara, Cooch Behar and the Complainant wanted to purchase the said flat in the name of his wife and daughter.
According to the OPs, the Complainant selected Flat No.B-1 measuring 1273.60 sq. ft. super built area and the total consideration price was Rs.30,34,280/-. Therefore, the OP No.1 acknowledged in his w/v that he received Rs.1 lakh from the Complainant in order to enter into an agreement to sell the said flat in the name of Complainant’s wife and daughter. From the plaint story and its w/v, we find that the bone contention was the price of the flat and for that reason, the Complainant did not want to enter into an agreement with the OPs. According to the Complainant, he went to the Office of the OP No.2 for getting a copy of the agreement as well as money receipt. It is the case of the Complainant that there was an oral agreement in between the Complainant and the OPs for purchase of the said flat at a consideration price of Rs.15 lakh. There is no corroborative evidence as regards the price of the flat. On the other hand, the OP has produced a deed agreement for sale of the flat, from where it reveals to us that the wife of the Complainant and his daughter wanted to purchase a flat measuring 1273.60 sq. ft. super built area at a consideration price of Rs.29,29,280/- and additional charge of Rs.1,05,000/- for Generator, Transformer, common water purifying system, Fire Safety etc. The Indian Non-judicial stamp was purchased on 10.10.14 in the name of Ava Ghosh. The Complainant did not send any letter to the OPs asking them to enter into an agreement for sale of the flat. Therefore, it cannot be stated that the OPs were not willing to enter into an agreement with the Complainant. A Registered Deed of Conveyance is produced before this Forum by the OPs in order to show the actual price of the Apartment. One Lipika Das purchased 1222 sq. ft. super built area in the 3rd floor at a consideration price of Rs.26,50,000/-. Therefore, it is not trust-worthy that the OP No.1 and 2 wanted to sell 1000 sq. ft. flat at a consideration price of Rs.15 lakh. The documents as produced by the OPs show that the OPs were willing to enter into an agreement with the Complainant’s wife and daughter but it is not clear to us as to why the Complainant did not enter into an agreement with the OPs. We do not find anything wrong on the part of the OPs. Therefore, the Complainant is not entitled to get any decree as prayed for. Both the points are decided against the Complainant.
Hence,
it is ORDERED,
That the present Case No. CC/50/2016 be and the same is dismissed on contest against the OPs. There is no order as to cost.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
Dictated and corrected by me.
