IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

MURSHIDABAD AT BERHAMPORE.

CASE No.  CC/32/2010.

 Date of Filing:23.02.2010                                                                        Date of Final Order: 18.03.2015

 Indrajit Roy,S/O. Bireswar Roy

132/1/C, Bishnupur Road

P.S.+ P.O.- Berhampore

Dist. Murshidabad      ………….…..……………………………Complainant.

-Vs-

 G.C.S.S. Construction Company ,

A Partnership Firm Represented

       By Partners:

 1). Uttam Kumar Ghatak,S/O. Bhabani Prosad Ghatak

      82, Pilkhana Road.P.O. & P.S.- Berhampore.

      Dist.- Murshidabad.

 2). Soumya Kanti  Sinha. S/O- Sukumar Sinha.

       96, R.N. Tagore Road.P.O. & P.S.- Berhampore.

       Dist.- Murshidabad.

 3). Manager, State Bank of India,

       Berhampore Branch Office,

       Berhampore, Murshidabad.                    ……………….…..……............Opposite Parties.

 Siddhartha Sankar Dhar& Safiul Alam Ld. Advocates ………………..for the complainant

 Sumanta Roy, Ld. Advocate ……………………………………………………...for the OP No.1

 Sambarta Mukherjee, Ld. Advocate ………………………………………….for the OP No.2

                           Present:     Anupam Bhattacharyya …………………….President,

                                               Samaresh Kumar Mitra ……………………..Member,          

                                           Pranati Ali ……………….…………………………Member.          

FINAL ORDER

 Samaresh Kumar Mitra, Member.

                Brief facts of the case as enumerated in the petition of complaint is that the petitioner/complainant being an intended customer of a flat bearing Flat No.F-1measuring 615.81 sq ft, to be constructed at 25, Nilmony Bhattacharjee Lane within Berhampore Municipality from the OP who expressed that they are the owners of the said Flat as well as land underneath. Price of the Flat was settled at Rs.6,00,000/-. The OP assured to deliver the possession of the Flat within 30 months from the date of agreement after constructing the Flat. An agreement of sale was executed on 09.07.2007. The complainant paid Rs.2,50,000/- to the OP and remaining  Rs.3,50,000/- was paid to the OP by SBI , Berhampore (OP No.-3) from which the complainant took loan. Despite cropped up when the OP could not deliver the Flat within the stipulated time period although the complainant requested the OP No.1&2 to deliver the same and paid Rs.50,000/- for execution and registration of sale deed and he was paying the EMI’s of OP No.3 bank.

             When the OP No.1&2 failed to execute the deed and assured this complainant to repay the entire amount and the cost of registration and by several post dated cheques amounting to Rs.2,50,000/- was paid to the complainant by OP No.1&2. But the cheques were not encashed due to due to insufficient fund. The OP No.1&2 assured this complainant to pay the rest amount within short period. The complainant did not get any amount of Rs.6,50,000/- or the Flat but continued to pay the EMI’s. So the Op No.1&2 is deficient in providing service towards their consumer. Getting no alternative this complainant filed the instant complaint for redress as prayed for in the prayer portion of the complaint.

                 OP No.1 by appearing through its agent filed W/V and denied the allegations as leveled against him and submitted that the complainant was unwilling to get the sale deed executed in his favour in respect of Flat in question and wanted to get refund of which is advanced money of a sum of Rs.2.5 lakhs and sum of Rs.50,000/- only totaling 3 lakhs only. The OP refunded Rs.50,000/- by cash to the complainant which was received by wife of the complainant on 07.04.2009. The answering OP further assailed that he refunded Rs.2,50,000/- to the complainant by cheque and the complainant received the cheque of Rs.2,50,000/- towards refund of advanced money paid for purpose of purchasing the said Flat and given up right to purchase of said Flat on receipt of refund of advanced amount as aforesaid and he himself forfeited right to the purpose of said Flat and accordingly deed of agreement on 9.7.2007 has been cancelled and not enforceable. He also liquidated the bank dues of aforesaid loan account of the complainant being No.30261162336 on dated 27.03.2009.He also denied that he was reluctant to deliver the possession of Flat and to execute the deed of sale and the cheques were not encashed. He further averred that the complainant neither entitled to get the deed of sale in respect of Flat in question executed in his favour nor is entitled to get refund of Rs. 6,50,000/- so the complaint is liable to be dismissed.

      OP No.2 appearing by its agent filed W/V on 16.08.2010 and denied the allegations regarding payment of Rs.6,00,000/- in total for the price of the Flat and Rs.50,000/- for execution and registration of sale Deed to this Opposite Party and issuance of Cheque of Rs.2,50,000/- to this complainant. This Opposite Party has no liability or responsibility for delivery the alleged Flat to the petitioner because this OP has retired from the said partnership business namely G.C.S.S construction company and as per agreement the OP No.1 is liable to supply and deliver the alleged Flat to the petitioner accordingly. So this answering OP No.2 has no liability in relation to the claim of this complainant.

       By filing written argument the complainant submitted that he deposited Rs.3,00,000/- in cash and another Rs.3,50,000/- paid by the SBI as loan to this OP against the Flat and the complainant was paying EMI’s. But when the OP failed to deliver the Flat he issued 5  post dated cheques of Rs.50,000/- each. Two cheques out of 5 cheques were bounced due to insufficient funds and this complainant compelled to file a complaint U/S.138 of N.I. Act before CJM , Berhampore then the OP paid Rs.1,00,000/-.  During the pendency of this complaint the OP deposited the balance amount to the bank so the complainant is entitled to get Rs.2,61,320/- along with interest @ 12% and compensation for mental pain & agony and litigation costs.

          Argument as advanced by the agents of the complainant heard in full and agent of the OP filed a case decisions namely Krishna Abason Pvt. Ltd. -V/S- Krishna Sarkar & Anr. 2015 (1) CLJ (Cal).

            Despite receiving notice the OP No.-3 did not turn up so the proceeding run ex-parte against the OP No.3.

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

ISSUES/POINTS   FOR   CONSIDERATION

    1.     Whether the Complainant ‘Indrajit Roy’ is a ‘Consumer’ of the opposite party?

2.  Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3.  Whether the O.P 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 ‘Indrajit 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)(ii) of the Consumer Protection Act,1986. As the complainant herein being the  proposed customer  made an agreement for sale with  OP No. 1&2 on 09.07.2007 is entitled to get service from the OPs.

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

              Both the complainant and opposite parties are residents/carrying on business within the district of Murshidabad. The complaint valued at Rs.6,50,000/- 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?

              After comparative study of the complaint, the written version and the written argument of the complainant and perusing the documents in record it appears that this complainant being the intended purchaser of a flat approached the OP Nos. 1 & 2 with a consideration money of Rs.6,00,000/- which he paid Rs.2,50,000/- by cash on different dates and remaining Rs.3,50,000/- was paid by cheque issued by SBI, Berhampore Branch as loan to this complainant. In the meantime, a Deed of Agreement was executed in between the parties on 09.07.2007. Being a consumer of OP Nos. 1 & 2 this complainant approached the OP for delivery of possession of the flat and to execute deed of sale but the OP No.1 was reluctant. The complainant paid a sum of Rs.50,000/- for execution and registration of sale deed and also paying the EMI’s of OP No.3 bank regularly. After elapsing the stipulated time the OP could not deliver the Flat in question so the OP Nos. 1 & 2 assured to refund the entire amount including cost of registration. By five post-dated cheques of Rs.50, 000/- each, the OP No.1 refunded Rs.2, 50,000/- to the complainant. The complainant compelled to take the shelter of C.J.M. Berhampore when the two cheques of Rs.50,000/- each were bounced. The OP No.1 refunded Rs.1,00,000/- as cash to avoid the proceeding of Section 138 of N.I. Act. During the pendency of this complaint case this OP No.1 deposited the balance amount of bank loan in the name of the complainant. According to complaint case, the complainant is entitled to get Rs.1,50,000/- as the three cheques being Nos. 315986 dated 18.5.2009, 315987 dated 18.06.2009 and 315988 dated 18.7.2009 of Rs.50,000/- each were not encashed. And the advance money of Rs.50,000/- which this complainant paid on 1.11.2007 to the OP No.1(Ext-16) and the EMIs paid to the bank amounting to Rs.61,320/-.

       OP No.2 retired from the partnership Firm GCSS on 17.05.2008 and he has not taken no money from this complainant but executed the agreement of sale on 09.07.2007. Dispute cropped up between OP No.1 and this complainant when the OP No.1 failed to deliver the flat according to the complaint and complainant was not interested to take the Flat in dispute according to the version of OP No.1. The OP No.1 issued three cheques which were not encashed , so he is under obligation to refund the said amount and another Rs.50,000/- which the complainant paid for execution of sale deed and the amount paid by the complainant to the bank Rs.61,320/- as EMIs.

        In the written version the OP No.1 denied the demand of the complainant but failed to prove by producing sufficient documents that he refunded the money as he took earlier for delivery of Flat. But tried to establish by producing papers in three sheets that complainant forfeited his right by taking Rs.2,50,000(Annexure-A) and the firm owner has right to sale the specified Flat to another person which is denied by the complaint during argument and assailed that he never endorse such declaration or letter and the documents are false and fabricated and prayed for taking penal action against the OP No.1.

     In terms of Sec.3 of  West Bengal Building ( Regulation of Promotion of Construction and Transfer by promoters ) Act,1993 the Developer is required to file an application before an authorized officer to register its name for permission to construct buildings /flats/apartments etc. In the present case the Developer did not invoke the provisions of 1993 Act and additionally executed sale agreement but did not deliver peaceful vacant possession of the flat to the complainant. In such view of the matter the provisions of Section 12A of the Act cannot apply. Being a Consumer under the Consumer Protection Act, 1986 this complainant is entitled to claim the particular reliefs which are available to a consumer complaining the deficiency in service, harassment and unethical trade practice. Section 3 of the Consumer Protection Act,1986 speaks as, ‘The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force’. The provisions of this Act give the consumer an additional remedy besides those that may be available under other existing laws ; The Consumer & Citizens Forum –Vs- Karnataka Power Corporation,1994 (1) CPR 130. We are in a opinion that for speedy and inexpensive redressal the consumer has choosen the right Forum.

            The decision of Lucknow Development Authority-Vs- NK Gupta reported in 1994 Vol 10 SCC Page 243 and Ghaziabad Development Authority -Vs- Balveer Singh reported in2004 Vol 5 SCC page 65 it is held by the  Hon’ble Apex Court that the delay in delivering a flat/ immovable property amounts to a denial of service. Such delay shall be also classified as a deficiency or omission defined as unfair trade practice. In the present case the OP No.1 as a Developer could not deliver the flat in dispute within the stipulated period to this complainant and not only that during the payment of refund money this complainant filed a complaint before CJM, Berhampore for getting the cheque money which were bounced during the course of encashment. So the gesture of OP No.1 towards his consumer is not up to the mark while providing service and as such the complainant is entitled to get compensation from this OP No.1 for deficiency of service and unfair trade practice.

          So the deficiency of the OP No.1 is proved beyond reasonable doubt. So we are in a considered opinion that the complainant is entitled to get relief/reliefs from this Forum as prayed for in the prayer portion of the complaint petition.

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 has able to prove his case beyond any reasonable doubt. So, the Opposite Party No.1 is liable to compensate the Complainant.

Hence it is ordered that the complaint be and the same is allowed in part with litigation cost of Rs.5,000/-.

             The Opposite Party No.1isdirected to pay the aforesaid amount of Rs.2,61,320/- including the interest @10% since 18.05.2009 i.e. issuance of cheque being No.315986 of SBI ,Berhampore Branch to the Complainant till the realization, for deficiency in service of the OPNo.1 and mental pain and agony of the Complainant within 45 days of this order.

The OP No.1 is further directed to deposit a sum of Rs.20,000/- as penalty for deceitful manner of business in the fund of this Forum and it is imposed only to check such short of activities of this developer/ OP No.1 and it shall be deposited to this Forum account within 45 days from the date of this order. If the OP No.1 is found reluctant to comply this order in that case penal action u/s. 27 of the Consumer Protection Act,1986 shall be started against them for which further penalty and fine may be imposed.

        At the event of failure to comply with the order the Opposite Party No.1 shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the State Consumer Welfare Fund, West Bengal.

Let plain copy of this order be made available and be supplied, free of cost, to the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgement/be sent forthwith under registered post with A/D to the concerned parties as per rules, for information and necessary action.

 Dictated and corrected by me.  

       Member,                                                                                  President, 

    District Consumer Disputes                                                 District Consumer Disputes                                        

 Redressal Forum, Murshidabad.                                        Redressal Forum, Murshidabad.

      Member,                                                                                   Member,

   District Consumer Disputes                                               District Consumer Disputes                                         Redressal Forum, Murshidabad.                                      Redressal Forum, Murshidabad.