The case of the complainant is that he being unemployed person desires to open a sweat shop for earning his livelihood. So he entered into an agreement for sale with the OP on 22.3.2004 in respect of schedule mentioned shop room with a consideration money amounting to Rs.7,00,000/-out of which the complainant already paid a sum of Rs.600000/- by cash & cheques. The complainant was ready and willing to pay the balance consideration money for purchasing the shop room but the OP intentionally and motivatedly avoided the execution and registration. Inspite of several requests the OP neither delivered the possession of the scheduled shop room nor executed the sale deed of the shop room in favour of the complainant. Then he sent lawyers notice dated 27.3.2014 asking the OP to execute and register sale deed in his favour. But the OP did not pay any heed. As a result the complainant suffered loss of Rs.200000/- only for his mental agony, anxiety and suffering  also suffered financial loss of Rs.400000/- for not abled to open his proposed business in time, so he suffered a total loss of Rs.650000/- and filed the instant complaint before this Forum praying a direction upon the OP for execution and registration of the sale deed of the shop room alternatively he prays to refund the advanced amount of Rs.600000/- along with interest at the rate of 12% per annum and other costs. He prayed Rs.1250000/- in total as compensation and damages from the OP.

The sole OP appeared and filed written version denying the allegations as leveled against him and averred that he is agree with the complainant in respect of the purchase of the schedule shop room in the flat at the consideration of Rs.700000/- but he totally denied that the complainant paid Rs.600000/- out of Rs.700000/- by cash & by cheque but he admitted that he received a sum of Rs.350000/- only from the complainant and the cheque given by the complainant was bounced due to insufficient fund. He further stated that by a letter dated 04.04.2009 the complainant informed the OP that he is unable to purchase the above mentioned shop room for his pecuniary condition and gave permission to sale out the schedule shop room to third party and also requested to refund back the advance money after selling the shop room to third party. From the said letter it is presumed that the complainant is not ready and willing to perform his part moreover the complainant had not hand over any draft sale deed since 22.04.2004 to 04.04.2009. The agreement for sale contains the Arbitration clause so this forum has no jurisdiction to entertain the said case.

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

The sole OP filed evidence on affidavit which is nothing but replica of his written version.

Both sides filed written notes of argument which are taken into consideration for passing final order.

 Argument as advanced by the agents of the parties heard in full.

 From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

    1. Whether the Complainant   Sri Sunil Kumar Roy ‘Consumer’ of the opposite party?

    2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

    3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service    towards the Complainant?

   4. Whether the complainant proved his case against the opposite party, as alleged and whether  the opposite party is liable for compensation to him?

DECISION WITH REASONS

   In the light of discussions here in above we find that the issues/points should be decided based  on the above perspectives.

1. Whether the Complainant Sri Sunil Kumar Roy is a ‘Consumer’ of the opposite party?                   

    From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(i) of the Consumer Protection Act,1986. The complainant paid advance money to the OP with the intention  to purchase a shop room and the OP received the same is admitted in his written version, so this complainant being a purchaser  of the shop room owned by the OP is entitled to get service from the OP .

 (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

   Both the complainant and opposite party are residents/carrying on business within the district of Hooghly and cause of action took place within the district. The complainant prayed for a direction upon OPs to return back a sum of Rs.6,00,000/- along with 12% interest  and also prayed Rs.12,50,000/- in total as compensation and damages from the OP  ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

   (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?         

 The case of the complainant is that he entered into an agreement for sale with the OP on 22.3.2004 in respect of schedule mentioned shop room with a consideration money amounting to Rs.7,00,000/-out of which the complainant already paid a sum of Rs.6,00,000/- by cash & cheques. The complainant was ready and willing to pay the balance consideration money for purchasing the shop room but the OP intentionally and motivatedly avoided the execution and registration. In spite of several requests the OP neither delivered the possession of the scheduled shop room nor executed the sale deed of the shop room in favour of the complainant. Then he sent lawyers notice dated 27.3.2014 asking the OP to execute and register sale deed in his favour. But the OP did not pay any heed. As a result the complainant suffered loss and also suffered mental pain & agony and getting no alternative the complainant filed the instant complaint before this Forum for Redressal, praying reliefs as prayed in the prayer portion of the complaint. The sole OP appeared and filed written version denying the allegations as leveled against him and averred that he is agree with the complainant in respect of the purchase of the schedule  mentioned shop room in the flat at a consideration of Rs.7,00,000/- but he totally denied that the complainant paid Rs.6,00,000/- out of Rs.700,000/- by cash & cheque but he admitted that he received a sum of Rs.3,50,000/- only from the complainant and the cheque given by the complainant was bounced due to insufficient fund.  The complainant by a letter dated 04.04.2009  informed this OP that he is unable to purchase the above mentioned shop room for his pecuniary condition and gave permission to sale out the schedule shop room to third party and also requested to refund back the advance money after selling the shop room to third party.  Moreover the complainant did not hand over any draft sale deed since 22.04.2004 to 04.04.2009.

   After perusing the documents it appears that the complainant deposited a sum of Rs. 1,00,000/- through cheque dated 31.7.2004, a sum of Rs.50,000/- in cash on 11.7.2004, a sum of Rs.50,000/- in cash on 25.8.2004, a sum of Rs.50,000/- in cash on 3.2.2005, a sum of Rs.1,00,000/- in cash on20.3.2005 and a sum of Rs.100,000/- in cash on 27.3.2005 before the OP.  The complainant demanded that he deposited a sum of Rs.600000/- in cash & cheque. But the receipt filed by the complainant shows that he deposited Rs.350,000/- in cash & Rs.100,000/- in cheque to the OP but during the period of argument the complainant shows that in the column of the agreement it is stated that Rs.700000/- to be paid in the manner following: Rs.2,00,000/- at the time of agreement and rest portion on or before the registration & possession.  Agreement between the parties took place on 22.8.2004 so we may presume that as per agreement the OP took a sum of Rs.200,000/- from this complainant on the very date. Remaining amount is payable on or before the registration or possession. The Xerox copy of cash receipts of Rs.3,50,000/- of OP speaks that he paid the amounts on the dates. But the OP in his written version assailed that the impugned cheque dated31.07.2004 has bounced due to insufficient fund. The complainant failed to prove that the said amount of Rs.1,00,000/- has been debited from the account. So we may safely conclude that the complainant paid a sum of Rs.5,50,000/- in total to the OP. This complainant has failed to take the shop room and prayed to get the amount including interest.

   Going by the foregoing discussion hence it is ordered that the complainant failed to prove the deficiency of service of the OP for delivery of the shop room by adducing cogent document/evidence but the complainant is entitled to get back the advance money alongwith interest thereon.  However considering the facts and circumstances there is no order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant failed to prove the deficiency of service of the OP in respect of delivery of shop room through execution & registration but the opposite party is under liability to return back the advance money paid to the complainant alongwith interest so the complainant is not entitled to get compensation as prayed for.

ORDER

       Hence, ordered that the complaint case being No.43/2015 be and the same is allowed on contest against the opposite parties, with a litigation cost of Rs.5000/-.      

  The Opposite Party is directed to return back the advance money amounting to Rs,5,50,000/-  alongwith interest @ 10% p.a. since the date of last payment on 27.3.2005  till the payment within 45 days from the date of passing this order.

     At the event of failure to comply with the order  the Opposite Party  shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

 Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.