DATE OF FILING                    :     24.06.2015.

DATE OF S/R                            :      04.09.2015.

DATE OF FINAL ORDER      :     13.01.2016.

Sk Izbal Hossain,

son of late Sk. Syed Islam,

residing at village Ghoradah, P.O. Mato, P.S. Amta,

District Howrah……………………………………………...……….. COMPLAINANT.

• Versus   -

Golam Gous,

son of late Mustaque Ahmed,

residing at 10A, Mafidul Islam Lane, P.S. Beniapukur,

Kolkata 700 014. …………………………………………………..…OPPOSITE PARTY.

P    R    E     S    E    N     T

Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

Hon’ble Member      :      Smt. Jhumki Saha.

Hon’ble Member : Shri A.K. Pathak.

F  I   N   A    L       O   R   D    E     R

1. Complainant, Sk. Iqbal Hossain,   by filing a petition U/S 12 of the C .P. Act, 1986 ( as amended up to date ) has prayed for a direction to be given upon the o.p. to deliver the contracted go down or to refund the earnest money of Rs. 1,48,000/- with 10% damage from the month of July, 2013 as per agreement dated 10.09.2012 and to pay damages of Rs. 50,000/- for mental harassment and mental agony along  with other relief or reliefs as the  Forum may deem fit and proper. 

2. The case of the complainant is that one  agreement  was entered between the complainant and the o.p., promoter, on 10.09.2012   with respect to a  go down measuring more or less 170 sq. ft. to 180 sq. ft. at the ground floor of the multi storied building which is  comprised in R.S. Dag No. 636, R.S. Khatian no. 1706 of Mouza Bankra, J.L. NO. 55, P.S. Domjur, Howrah, and for that purpose complainant advanced a sum of Rs. 1,48,000/- out of total consideration amount of Rs. 2,50,000/- and settled that balance consideration amount would be paid at the time of delivery of the possession of the go down. As per agreement it was decided that within  20^th June, 2013, the possession of the go down would be  delivered but the o.p. neglected and failed to do the same. The complainant requested the o.p. for several times but the o.p. did not pay any heed. Subsequently complainant sent advocate’s letter dated 01.04.2015 requesting him to deliver the possession of the go down or to refund the advanced amount with 10% damages. In reply the o.p. assured the complainant over phone to deliver the possession of the go down within 15 days but till date  no fruitful result was yielded. Being frustrated and finding no other alternative complainant filed this instant case with the aforesaid prayers. Hence the case.

3. Notice was  served. O.P. neither   appeared nor  filed any written version. Accordingly, the case was  heard ex parte.

4. Two points arose for determination :

i)          Is there any deficiency in service on the part of the O.P.  ?

2. Whether the complainant is  entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

5. Both the points are  taken up together for consideration. We have carefully gone through the complaint petition along with annexures filed by the complainant and noted its contents. One  agreement dated 10.09.2012 was made between the complainant and o.p. for purchasing  a go down room at the proposed multi storied building.  It is a fact that o.p. has failed to deliver the possession of the said go down in question even after receiving the major portion being Rs. 1,48,000/- from the complainant at the time of entering into the agreement,  out of total consideration amount of Rs. 2,50,000/-. The  O.p. has miserably failed to keep his  promise which he  made in the agreement dated 10.09.2012. . For his gross negligence in discharging duties, complainant had to  suffer a lot physically, financially and mentally.  Sacrificing many present enjoyments involving monetary expenditure, complainant made that  advance payment to the o.p. considering his need. If that criteria is not fulfilled due to o.p.’  severe negligence, complainant is, thereby, truly prejudiced which can be very well understood by a man of common prudence. Moreover, the o.p. has not cared to appear before the Forum even after receiving summons. No W/V has been filed by him which clearly shows that he  has nothing to put forward in his favour. And the complaint petition remains unchallenged and uncontroverted. And we have no difficulty to believe the unchallenged testimony of the complainant.  O.p. has miserably failed   to keep promise which certainly amounts to deficiency in  service coupled with unfair trade practice  on his  part which should not be allowed to be perpetuated for an indefinite period.   And we are of the candid opinion that it is a fit case where the prayers of the complainant  should be allowed. Points under consideration are accordingly decided.

      Hence,

                                    O     R     D      E      R      E        D

      That the C. C. Case No. 230  of 2015 ( HDF  230  of 2015 )  be  allowed ex parte  with  costs  against  the O.P.     

      That the  O.P.  is  directed   to refund the booking money being Rs. 1,48,000/- to the complainant  within one month from this order  i.d., @ 8% p.a. interest shall be charged  till actual payment.

      The complainant do get an award of Rs. 10,000/- as compensation and Rs. 2,000/-  as litigation cost and o.p.  is directed to pay  Rs. 12,000/- within one month from this order i.d. amount shall carry an interest @ 8% p.a. till actual payment

      The complainant is  at liberty to put the decree into execution after expiry of the appeal period.

       Supply the copies of the order to the parties, as per rule.            

DICTATED  &    CORRECTED

BY   ME.  

  (    Jhumki Saha)                                              

  Member, C.D.R.F., Howrah.