Sri Rathin Ghosh,

son of late Rabindranath Ghosh,

of 57/2, Ichapur Road, P.S. Bantra,

District – Howrah,

PIN – 711 101.------------------------------------------------------------------ COMPLAINANT.

-          Versus   -

1.      K.C. Panja and son,

represented by its proprietor,

Susanta Panja,

Ichapur Canal Side ( Purba ),

P.O. Santragachi, P.S. Jagacha,

District – Howrah,

PIN  – 711104.

2.      Samar Pallay,

3.      Murari Mohan Pallay,

4.      Preshnath Pallay,

5.      ( a ) Smt. Tapasi Pallay,

wife of late Sushil Kr. Pally,

( b ) Suvro Pallay,

( c ) Avro Pallay,

both sons of late Sushil Kr. Pollay,

6.      Ashok Kr. Pallay,

7.      Subrata Kumar Pallay,

O.P. nos. 2 to 4 & 6 and 7 all sons of

late Haradhan Pallay,

of 21/1, Kantapukur 3^rd  Bye Lane, P.S. Bantra,

District – Howrah,

PIN – 711 101.-----------------------------------------------------OPPOSITE PARTIES.

                                                P    R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                      F  I   N   A    L       O   R   D    E     R

1.                  The instant case was filed by complainant U/S 12 of the C.P. Act, 1986

wherein the complainant has  prayed for direction upon the o.ps. to refund the entire booking money together with 18% interest and to pay compensation of Rs. 5 lacs for mental pain and agony and another 5 lacs for fraudulent dispossession of the complainant from his tenanted premises and to pay Rs. 2,50,000/- as litigation costs as the O.Ps. in spite of receiving Rs. 2,31,925/- against proper money receipts did not deliver the flat measuring 759 sq. ft. in the ground floor at 62/11/1, Ichapur Road, P.S. Bantra, District – Howrah.  

2.                  The o.p. no. 1 in his  written version denied the material allegations and the

money receipts as alleged and contended interalia that the complainant is a tenant in the suit holding no. 62/11/1, Ichapur Road, P.S. Bantra, under O.P. nos. 2 to 7 ; that the O.P. no. 1 entered into a development agreement with the O.P. nos. 2 to 7 ; that the O.P. nos. 2 to 7 entered into rehabilitation agreement with the complainant on 30-07-2008 in order to vacate the property ; that the dispute is not entertainable in the Consumer Court ; that one Civil Suit being no.  T.S.  49 of 2010 is pending before the Ld. Civil Judge, Sr. Division, 2^nd Court, Howrah, with the self same property ; that the agreement is insufficiently stamped. So the case should be dismissed as it is hit by the principle of res judicata. 

3.         Upon pleadings of both parties two points arose for determination :

i)          Whether the suit is hit by the principle of res judicata ?

ii)         Is there any deficiency in service on the part of the O.Ps.  ?

iii)                Whether the complainant is entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

POINT NO. 1

4.       The principle of res judicata operates when the matter must be directly and

substantially in issue. If the determination of the issue in the present case is inconsistent with that of the former, it cannot be said that such finding will operate as res judicata. It is established principle of law after the pronouncement of the Apex Court that if a matter was only collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly or substantially in issue. This expression ‘collaterally’ or ‘incidentally’ in issue implies that there is another matter which is directly and substantially in issue. Therefore, the principle of res judicata would be applicable only when an issue arose directly and substantially in the earlier case. But a finding regarding an incident or collateral question reached for the purpose of arriving at the final decision would not constitute res judicata. In the H.D.F. Case No. 71 of  2010 the subject of rehabilitation was analytically discussed and it was held negative against the complainant. It was held that the agreement for rehabilitation was executed by and between the landlord and the tenants and with the present O.P. no. 1. It was held there that the complainant was to be rehabilitated by the landlords and the O.P. no. 1 had no role to play. It was further observed that the complainant could not show any document in regard to his payment of the earnest money in favour of the landlords. So the case was dismissed which was upheld by the Hon’ble State Commission.

            If we analyze the cause of action that gives rise to the present case that the prayer is not at all concerned with any right with respect to the property in question and is thoroughly concerned about the refund of the money which the O.P. no. 1 received from the complainant as earnest money in persuasion to the agreement dated 14-11-2008.  If the O.P. no. 1 does not refund the said money then are we to assume that the sum of Rs. 2,31,925/- should be forfeited in favour of the O.P. no. 1 ?   Therefore, we are of clear view that the complaint is not hit by the principle of res judicata. The Point No. 1 is accordingly disposed of.   

POINT NOS.  2 & 3 :

5.      Both the points are  taken up together for consideration. Now we are to take the

topic of the agreement for sale and not regarding  the topic of rehabilitation and registration which is not solely the responsibility of the O.P. no. 1. But the refund of the earnest money is of course the sole liability of the O.P. no. 1. Vide letter dated 26-06-2012 to the O.P. no. 1 the complainant specifically stated that he paid a sum of Rs. 2,31,925/- on different dates i.e., 22-02-2009, 18-10-2008, 12-08-2009, 12-09-2009, 04-07-2009, 09-06-2009 and 03-04-2009. This allegation is substantiated with the money receipts issued by the O.P. no. 1. Ld. Lawyer for the O.P. submitted that the money receipts are fake and were never signed by the O.P. no. 1. This submission in fact raises our eye brows. This is because all the money receipts bear the signatures of  Susanta Panja on behalf of K.C. Panja and son, O.P. no. 1. We placed, signatures of the money receipts vis-à-vis the signatures of the O.P. no. 1 in every pages of the agreement which appears to be same and identical. The allegation of fabrication of the money receipts is just a myth.  The same signatures of Susanta Panja on behalf of K.C. Panja also appear in a document dated 31^st July, 2008 and on the next page dated 23-08-2008. In spite of such concrete documents how the O.P. no. 1 can deny the money receipts. The Court being the expert of all experts arrives at the irresistible conclusion that the O.P. no. 1 with the malafide intention and to misappropriate the entire sum has taken up such plea which is really inconceivable. We have no hesitation in our mind that the O.P. no. 1 Susanta Panja received the sum of Rs. 2,31,925/-  on different dates after issuing the proper money receipts as discussed above. He cannot have any escape from the rigours of law by taking the plea of res judicata. As he received the amount he is bound to refund the same with interest. The hard-earned money of a consumer cannot go waste for the conduct of the capricious O.P. no. 1. Both the points are accordingly disposed of.

      Hence,

O     R     D      E      R      E        D

      That the C. C. Case No. 136  of 2012 ( HDF  136 of 2012 )  be  and the same is allowed on contest with  costs  against  the O.P. no. 1 and dismissed without cost against the rest.  

      The O.P. no. 1 Susanta Panja  be directed to refund the entire amount of Rs. 2,31,925/- together with interest @ 10% per annum since 03-04-2009 within 30 days from the date of this order

      The o.p. no. 1  do further  pay a sum of Rs. 2,50,000/-  as compensation for causing mental pain, agony  and prolonged harassment  perpetrated upon the complainant by him.

      The O.P. no. 1 do further pay a sum of Rs. 1 lac for adopting fraudulent means to misappropriate the bonafide payment of the complainant.

      The complainant is further entitled to a litigation costs of Rs. 10,000/- from the O.P. no. 1.

      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.  

  (    T.K. Bhattacharya  )                                               (    T.K. Bhattacharya  )

  President,  C.D.R.F.,Howrah.                                   President, C.D.R.F.,Howrah.

 (  Jhumki Saha  )                                                              (  P. K. Chatterjee )

 Member, C.D.R.F.,Howrah.                                       Member,  C.D.R.F.,Howrah.