West Bengal

Paschim Midnapore

CC/118/2012

Bishnupada Dutta - Complainant(s)

Versus

Debasish Ganguly - Opp.Party(s)

19 Oct 2012

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.118/2012                                                         Date of disposal: 19/10/2012                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. K. S. Samajder.

                                                      MEMBER :  Mrs. Debi Sengupta.

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

 

    For the Complainant/Petitioner/Plaintiff: Mr. B. Sinha. Advocate.

    For the Defendant/O.P.S.                          : Mr. T. Mandal. Advocate.

1. Bishnupada Dutta, S/o-Late Kashinath Dutta;
2. Mrs. Pratima Dutta, W/o-Bishnupada Dutta, both of Rajkishori Complex, Lohia Nagar, Patna Bihar.………Complainant.

                                                              Vs.

          Debasish Ganguly, S/o – Late Nanda Dulal Ganguly, Prop. M/S. Sal valley housing Co.

          Raghunathpur, P.O.- Jhargram, Dist-Paschim Medinipur……………O.P.

 

              The present case has been filed by the complainants praying for a direction upon the Op to make refund of Rs.3, 14,000/-(Three lakh & fourteen thousand) with interest and Rs.30, 000/-(Thirty thousand) towards loss of household properties and also other reliefs.

             The case of the complainant, in a nutshell, is that, the Op is the proprietor of M/S. Salvalley Housing Co. to whom the complainants paid Rs.4, 50,000/-(Four lakh, fifty thousand) as part payment of total consideration of Rs.5,00,000/-(Five lakh) for a flat as per agreement.  Delivery of possession of the flat being flat No.102 was given to the complainants.  The complainants occasionally resided there but despite repeated requests the Op did not register the sale deed in respect of the flat in favour of the complainants.  The Op also caused of theft of house hold articles of the complainants.  Further, the Op let out the flat to some other persons and cancelled the agreement entered into by the complainant and the Op.  The Op did not make refund of the money as agreed by him after cancellation of the agreement nor the Op restored the possession of the flat in favour of the complainants after taking the balance of consideration money.

Contd………….P/2

- ( 2 ) -

                                                                 Hence this case:

                   The Op contested the case by filing W/O, wherein he admitted that he received     Rs.4, 50,000/-(Four lakh, fifty thousand) from the complainants out of total consideration money of Rs.5,00,000/-(Five lakh) for a flat of M/S Salvalley housing Co. at  Jhargram.  An agreement was entered into by the parties and a period of 18 months was fixed for payment of the entire amount and taking delivery of the flat.  Thereafter, the daughter-in-law of the complainants starting creating some problems which was informed by the Op to the complainants when the complainants expressed their intention that  they are not interested to purchase the flat any more and they asked to Op to make refund of the amount paid by them.  Although, there was no provision for making refunds of the money, still then the Op made refund Rs.1,40,000/- (One Lakh & forty thousand) to the complainants and promised to pay the balance amount but in spite of all these. The complainants have filed this case on false grounds.  The Op specifically contended that since the agreement was cancelled at the instance of the complainants and they have accepted a portion of the amount, the dispute cannot be the subject matter of this Forum and hence this case is not maintainable here.  So the Op prayed for dismissal of the case.

                  It is now for our consideration as to whether the complainants are entitled to get the relief as claimed.

Decisions with reasons:

                  This is an admitted position that there was an agreement between the parties for delivery of a flat by the Op in favour of the complainants at Jhargram.  This is also admitted that the consideration amount for the flat was settled at Rs.5,00,000/-(Five lakh) out of which the complainants paid the Op Rs.4, 50,000/- (Four lakh & fifty thousand).   Further admitted position is that the agreement was cancelled  and after cancellation of the agreement the Op made payment of Rs.1,40,000/-(One lakh & fourty thousand) to the complainants out of the amount of Rs.4,50,000/-(Four lakh, fifty thousand) which the complainants paid to the Op for the flat.  Upon such facts and circumstances, it can be said that the cancellation of the agreement is an admitted position.  Moreover, from the letters written by the complainant Pratima Dutta to the Op on 18/4/11 and 22/7/11 it appears that the complainant Pratima Dutta clearly admitted the flat of cancellation of the agreement and asked the Op to make refund of the amount advanced.  These facts certainly lead us to believe that the agreement between the parties relating to the fact was cancelled and the Op made part payment of the amount paid by the complainants and the Op also promised to make payment of the rest amount.  The petitioners also alleged that the Op took forcible possession of the flat and took away some articles of the complainant from the flat and for such alleged act of theft of the Op the complainants also prayed for compensation.

Contd………….P/3

- ( 3 ) -

                 Since the cancellation of the agreement  and making refund of the part of the amount which was received by  Op is an admitted position, there remains no contract and accordingly the dispute becomes such a nature which cannot be the subject matter  for adjudication by this Forum.  If the Op has not made refund of the balance amount, the remedy for the complainants for realization of the balance amount lies before the Civil Court which has also been agreed by both the parties in their agreement.  Moreover, the allegation of the complainants to the effect that the Op committed theft in respect of some articles from the flat, the action for such alleged act of the Op does not lie in this Forum.

                 From the facts and circumstances of the case which are mostly admitted, we are of the view that the present case is not maintainable by this Forum.  Because there are certain facts and question of laws which are complicated in nature and only the Civil Court can determine such questions.  Moreover, after cancellation of the agreement which is admitted in this case, the dispute becomes of such a nature which cannot be the subject matter for adjudication by this Forum

                Therefore, the complainants are not entitled to get the relief as prayed for.

                                                 Hence, it is

                                                                   Ordered

                                                                                 that the complaint case no.118/2012 be dismissed on contest but considering the circumstances without cost.      

Dic. & Corrected by me

                                                         

              

         President                                  Member             Member                    President

                                                                                                                  District Forum

                                                                                                              Paschim Medinipur.