IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC/147/2018
Date of Filing: 13.09.18 Date of Final Order: 25.09.19
Complainant: 1. Kamanamoy Biswas
S/o Lt. Kamalkanta Biswas
2. Sima Biswas
W/o Kamanamoy Biswas
Vill-Radhikanagar, PO-Cassimbazar Raj,
PS-Berhampore, Dist-Murshidabad
Pin-742102
-Vs-
Opposite Party: Krishnakanta Bhaskar
S/o Lt. Basanta Kr. Bhaskar,
19/01, Natunpara
PO-Khagra, PS-Berhampore
Dist-Murshidabad, Pin-742103
Agent/Advocate for the Complainant No. 1&2 : Sri. Partha Sarathi Ghosh.
Agent/Advocate for the Opposite Party : Sri. Sankha Nath Mukherjee.
Present: Sri Asish Kumar Senapati…………………. President.
Smt. Aloka Bandhopadhyay……………………..Member.
FINAL ORDER
Smt. Aloka Bandyopadhyay, Member.
One Kamanamoy Biswas and another (here in after referred to as the Complainants) filed the case against Krishnakanta Bhaskar (here in after referred to as the OP) praying for compensation, alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant entered into an agreement on 01.07.2016 for purchase of specific landed property from the O.P on consideration of Rs 17.00.000/- out of which the complainant has to pay Rs 8,00,000/- as advance and the rest amount of Rs 9,00,000/- will be handed over to the O.P at the time of delivery of the booked property by executing a registered Sale Deed on or before 31/01/2017. But after expiry of the time limit , the OP neither handed over the said flat to the Complainant as per their agreement nor executed any sale deed in favour of the Complainant in spite of repeated reminders. Hence, the Complainant has filed this case praying for order directing the OP to refund the advance along with 11% interest from the date of failure of the delivery of the said flat and to pay compensation for mental pain and harassment.
The case was filed on 13.09.18 and admitted on 11.10.18. The OP put their appearance and filed written version on 05.02.19 inter alia denying materials allegations made out in the complaint, contending that the complainant has failed to pay the installment amount as per their agreement and the money which the complainant has paid as advance has been invested in construction work of the said flat.. As the Complainant has not paid entire amount within the stipulated period the O.P has sold the flat and is ready to deliver the same kind of other flat on receiving the rest amount @ 25% interest in composite form . The OP prayed for dismissal of the Complaint.
On the basis of the above versions following points are framed for proper adjudication of the case :
Points for decision
- Is the Complainant a consumer under the provision of the CP Act, 1986?
- Has this Forum jurisdiction to entertain the complaint?
- Is there any deficiency in service on the part of the OP, as alleged ?
- Is the Complainant entitled to get any relief, as prayed for?
Point No.1
The Ld. Advocate for the Complainant submits that the Complainant paid Rs.8,00,000/- as advance against Deed of Agreement dated 01.07.2016 for booking of a flat , so the Complainant is a consumer.
None on behalf of the OP has taken part in hearing of argument.
Having gone through written complaint, written version, evidence of the Complainant and the document filed by the Complainant, we find that the Complainant is a consumer in terms of the Consumer Protection Act,1986.
Point No.2
The Complainant submits that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum.
On a careful consideration over the materials on record, we find that the cause of action arose within the territorial jurisdiction of this Forum and this Forum has pecuniary jurisdiction to entertain the complaint.
Point Nos. 3&4
The Ld. Advocate for the Complainant submits that the Complainant entered into an agreement with the O.P for transfer of landed household property in the name of the complainant for a consideration of Rs 17,00,000/- out of which the complainant has paid a sum of Rs 8,00,000/- as advance to the OP and the rest amount of Rs 9,00,000/-would be paid at the time of finalization of the transaction by executing a registered sale deed on or before 31/01/2016 but the OP neither refunded the said amount nor executed the sale deed . It is urged that the OP has deficiency in service as has miserably failed to discharge his obligation in terms of agreement dated 01.07.2016 and the Complainant is entitled to get orders against the OP.
It is the allegation of the Complainant that he paid a sum of Rs. 8,00,000/- as advance for executing sale deed and it is clear from the memo of consideration dated 01.07.16 duly executed by the OP ( Annex= 1). The OP is none but the owner come developer. The OP has alleged in the written version that the OP has received the booking/allotment money from the complainant as per their agreement but after the allotment of the said flat the O.P demanded 1st, 2nd ,3rd , 4th installment payment as per sixth schedule of their agreement for sale but the complainant has failed to comply the said agreement and after the laps of the stipulated period as per agreement the said flat which was booked by the complainant was sold to the other person. The O.P has not filed any document that he has claimed the due amount from the complainant and we find no reason to believe the version of the OP that the complainant has failed to comply the said agreement executed between them. The Complainant has prayed for a direction upon the OP to refund of the advance amount with interest and compensation against the OP.
The OPs received Rs. 8,00,000/- on 01.07.16 against Deed of Agreement as advance for booking of a flat but the OP has neither delivered the said flat to the Complainant on receiving the due amount nor refunded the advance with interest to the complainant. In our considered opinion, the OP has deficiency in service.
On a careful consideration, we think that the OP may be directed to refund the advance amount of Rs.8,00,000/- along with interest @ 7% per annum with effect from 01.07.16 till payment to the Complainant.
The OP may also be directed to pay compensation of Rs.5,000/- for deficiency in service and Rs.2,000/- as litigation cost to the complainant.
Reasons for delay
The Case was filed on 13.09.18 and admitted on 11.10.18 . This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case succeeds.
Fees paid are correct. Hence, it is
Ordered
that the complaint Case No. CC/147/2018 be and the same is hereby allowed on contest against the OP with cost of Rs.2,000/-.
The OP is directed to refund the advance amount of Rs.8,00,000/- along with interest @ 7% per annum with effect from 01.07.16 till payment to the Complainants.
The OP is also directed to pay compensation of Rs.5,000/- for deficiency in service and Rs.2,000/- as litigation cost to the Complainants.
The OP is directed to comply the order by 45 days from the date of this order otherwise it shall carry @ 10% interest P.A. from this date to till its realization payable to the complainants by this OP.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
Member
Member President
