Date of filing: 27.11.2017 Date of disposal: 13.06.2018
Complainant: Jitendranath Karmakar, S/o. Late Bankubihari Karmakar, resident of 7/10, Dayananda Road, A-Zone, Durgapur, Dist: Burdwan (West), PIN – 713 204.
Opposite Party: 1. Hahnemann Housing & Development (P) Ltd., represented by its Director, Having its office Branch Office at Durgapur, Sanjib Sarani, Aesby More, Durgapur 1, District: Burdwan, PIN – 713 201.
2. Kalidas Mukherjee, S/o. Late Rabi Lochan Mukherjee, Director of Hahnemann Housing & Development (P) Ltd., having his residence at Beliatore, PO. & PS: Beliatore, Dist: Bankura, Pin – 722 203.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party No. 1&2: None (ex parte)
J U D G E M E N T
The complainant has filed the present complaint against the Ops with a direction that Ops should refund an amount of Rs. 2,25,000=00 along with 12% interest from 15.01.2015 to till date of realization and Rs. 50,000=00 for mental pain, agony and harassment and also to pay Rs. 20,000=00 as litigation cost on the ground that an agreement was executed between the parties on 16.01.2012 to purchase a plot of land which Ops are selling by creating a project, namely, ‘Santiban-VI’.
Accordingly as per claims of the complainant he has paid Rs. 45,000=00 as booking amount on 28.11.2011 and thereafter OP-1 issued a certificate of booking on the same day which was valid up to 28.11.2014 and also paid a total price of the land fixed Rs. 2, 25,000=00 by 36 installments and the Ops endorsed the same in the EMI book of the complainant. As per agreement the Ops are bound to complete all necessary works of the schedule mentioned plot and has over the same within 3 years (36 months) from the date of execution of the agreement for sale, i.e. within 28.11.2014.
Complainant further claimed that as per terms and conditions of the agreement he has paid total amount and Ops after receiving the said amount from the complainant failed to execute any deed of conveyance in favour of complainant as per agreement. By getting no other alternative the complainant after payment of all installments, requested the Ops to refund their money as per agreement and the Ops also agreed to refund the Money of the complainant. Ops asked the complainant to submit all the original documents. But inspite of compliance of all the formalities the complainant did not get back his money from the Ops. On the other hand the Ops also failed to deliver the possession of the schedule mentioned plot to your complainant within agreed period.
The complainant further submitted that they are bonafide consumer of the Ops and the Ops received full amount of Rs. 2,25,000=00 but failed to hand over the plot of land with basic structure as per agreement and also failed to refund the total amount as per demand of the complainant as per clause of agreement executed in between them.
The cause of action arose firstly on 22.08.2015. After filing the present application, the complainant sent proper notice to the Ops and the Ops also received the same but failed to appear and accordingly it is fixed for ex parte hearing.
Now points for consideration:
How far claimants able to prove that they are entitled to receive total payment i.e., Rs. 2, 25,000=00 along with other claims from the Ops?
Let us consider how far complainant has able to prove the same against the Ops.
Decision with reasons:
To prove the allegation against the Ops, the complainant has filed his evidence-in-chief through affidavit along with documents,
(1) booking certificate issued by Hahnemann Housing & Development (P) Ltd., shows that that have properly received Rs. 45,000=00 from the complainant.
(2) Agreement for sale.
(3) documents issued by Hahnemann Housing & Development (P) Ltd. shows that all the documents from the complainant for registration, i.e. booking form Counter Part, booking certificate, agreement for sale, EMI Book.
(6) Xerox copy of first page of Bank account along with other pages which shows that they have paid total amount of Rs. 2, 25,000=00 as per agreement.
Now it appears that the complainant is able to prove that he is a bonafide consumer according to Sec. 12 of the C.P. Act, 1986 and also able to prove that there was an agreement between the complainant and the Ops and according to agreement he also paid total amount of Rs. 2, 25,000=00 by 36 installments and also able to produce the documents to show that Ops have received the said amount. And the complainant also able to prove that the Ops have failed to comply the clause of agreement either by executing the deed of conveyance in favour of the complainant and compelled to file the present claim application.
It also appears as per demand of the complainant after full payment, OP also directed the complainant to produce all the documents; accordingly the complainant also submitted all the documents and the Ops also received the same. So it is clear that the Ops never denied the claim of the complainant, on the contrary, by receiving the documents they tried to show their good intention that is to execute deed of conveyance in favour of the complainant after receiving full amount and at the same time they also able to prove that they have failed to execute any deed of conveyance in favour of the complainant after receiving full amount as per agreement, reason best known to them but from the attitude of the Ops it clearly shows that their intention was/is nothing but only to deceive the complainant.
So Ops are able to prove themselves that this attitude is nothing but unfair trade practice and deficiency in service towards the complainant. So complainant is entitled to get back the money deposited to the account of the Ops and also entitled to get compensation towards deficiency in service, unfair trade practice, harassment and mental agony and also entitled to get litigation cost.
Hence, the complaint succeeds. Accordingly, it is
O r d e r e d
that the present Consumer Complaint being No. 239/2017 be and the same is allowed ex parte against the Ops with cost. The O.P. Nos. 1 & 2 are directed to pay Rs. 2, 25,000=00 either jointly or severally to the complainant along with interest @12% per annum from 15.01.2015 to till date of realization and the O.P. Nos. 1 & 2 are further directed to pay a sum of Rs. 15,000=00 as mental pain and harassment and Rs. 3,000=00 as litigation cost within 45 days from the date of passing of this order, in default, the complainant is at liberty to put the entire award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Nivedita Ghosh) DCDRF, Burdwan
President
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
