Date of Filing: 26.08.2014 Date of Final Order: 28.05.2015
The complainant Md. Abil Hossain, S/o. Late Gandol Md. @ Hekmat Ali, has filed the present case U/S 12 of the Consumer Protection Act, 1986 against the O.P., Md. Amrul @ Amrul Hoque, S/o. Late Md. Ali, praying for issuing a direction upon the O.P to pay the claim amount to the complainant also to pay (1) Rs.1,20,000/- as refund the consideration (plus interest), (2) Rs.50,000/- for mental pain and agony, (3) Rs.5,000/- for harassment, travelling expenses etc. and (4) Rs.5,000/- towards litigation cost, in total Rs.1,80,000/- and other relief(s) as the Forum may deem feet and proper.
The gist of the complaint as culled out from the record is that for urgent need of money the O.P intended to sale the plot of land to the complainant and on 26/01/2014 the agreement was made between the complainant and the O.P. The description of plot of land as follows :
District Cooch Behar, P.S. and Pargana Mekhliganj, Thak No.147, J.L. No.85, Hal Khatian No.323, Total land measuring 3.03 acres out of which .35 decimals.
The price value of plot of land was fixed amounting to Rs.1,50,000/- only in terms of sale agreement between the parties and out of aforesaid amount the complainant paid Rs.1,20,000/- to the O.P on 26/01/2014 and the rest amount of Rs.30,000/- only will be paid at the time of registration of sale deed i.e. on 12/06/2014. But inspite of several requests the O.P did not register any sale deed in respect of said land within stipulated period. There after the complainant send a notice through lawyer upon the O.P on 12/06/14 but the O.P before filing the case did not comply the terms of agreement of said deed, even after getting advance of Rs.1,20,000/- from the complainant. The complainant lodged an F.I.R against the O.P being Mekhliganj P.S. Case No.165/14 dated 24/06/14.
Thus the complainant has been suffering from mental pain and agony due to such act of O.P which amounts to deficiency in service and unfair trade practice by the O.P. As such the complainant prayed for refund of earnest money of Rs.1,20,000/- from the O.P with other relief.
Hence, the complainant filed the instant Case No. DF/57/2014 with enclosed some original/xerox copy of documents together with I.P.Os. of Rs.200/- before this Forum for redress of the dispute.
In this case, despite receiving the notice the O.P did not come forward before this Forum to contest the case also in view to non-appearance of the O.P this case was heard in Ex-parte.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant is a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.P any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.1.
Both parties come to an agreement to sell and purchase the disputed land at a price of Rs.1,50,000/- and the O.P received Rs.1,20,000/- as earnest money.
So, the complainant is a consumer under the O.P u/s 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
The O.P is resident of Bhotbari within the jurisdiction of this Forum and valuation of this case is Rs.1,80,000/- which is far less than maximum pecuniary jurisdiction of this Forum i.e. Rs.20,00,000/-.
During argument, the Ld. Agent/Adv. of the complainant submitted a ruling reported in 2014 CJ 619 (NC) where the complainant becomes member of the land develops and paid entire consideration money by 36 installments, but said develops did not execute and register sale deed in his favour. There after he filed a complaint before the District Forum for directing the O.P to execute and register sale deed in favour of the complainant. The prayer was allowed by the District Forum and the said order was confirmed by Hon’ble State & National Commission.
So, this Forum has every jurisdiction to entertain this case.
Point No. 3 & 4.
The complainant in his evidence on affidavit stated that the O.P has come to agreement to sell the case property at price of Rs.1,50,000/- out of which he has paid Rs.1,20,000/- and it was settled that the O.P would execute and registered the sale deed by 12/06/2014 on receiving balance of Rs.30,000/-. But inspite of several requests and service of notice through Ld. Adv./Agent he has not executed and registered any such deed on receiving balance payment. So, he is praying for directing the O.P to refund said Rs.1,20,000/-.
The complainant has filed Xerox copy of agreement dated 26/01/2014 made between the complainant, Md. Abil Hossain and the O.P, Md. Amrul @ Amrul Hoque regarding sale of the property in dispute.
It is the case of the complainant that the original deed has been seized by Police regarding Police case filed by him against the O.P for self same incident and as such he has filed Xerox copy of the same. The certified copy of formal FIR, FIR and seizure list show that the complainant, Abil Hossain lodged a complaint against the O.P, Md. Amrul @ Amrul Hoque and one another u/s 420/406/506 IPC and Police started Mekhliganj P.S Case No.165/14 dated 24/06/2014 on that basis and Police also seized original agreement dated 26/01/2014 made between the parties.
So, we find no impediment to accept said document in evidence specially when the O.P has not come forward to challenge said agreement deed dated 26/01/2014 executed by the complainant and O.P in presence of witness said deed shows that on that date i.e. 26/01/2014 the O.P received Rs.1,20,000/- from the complainant and the O.P agreed to execute and register sale deed in favour of the complainant in respect of the property in question on receiving remaining Rs.30,000/- by 12/06/2014.
The complainant in his evidence stated that inspite of several requests and service of notice through the Ld. Agent/Adv, the O.P has not executed and registered said deed.
The copy of Advocate’s letter dated 12/06/2014 along with registered slip (Postal) shows that Smt. Sushmita Roy, Ld. Adv. on behalf of her client, the complainant, Md. Abil Hossain sent a notice to the O.P, Md. Amrul @ Amrul Hoque to execute and register sale deed within 15 days in favour of the complainant failing which he would file suit against him.
Considering the evidence of the complainant and documents on record, we find that inspite of receipt Rs.1,20,000/- as earnest money out of Rs.1,50,000/- and due service of notice through the Ld. Adv. the O.P has not executed and registered deed in favour, which is nothing but deficiency in service on his part and he is liable to refund the said earnest money to the complainant with compensation.
So, these points are decided in favour of the complainant.
Thus the case succeeds on ex-parte.
ORDER
Hence, it is ordered,
That the DF Case No.57/2014 is allowed on ex-parte with costs of Rs.3,000/- payable by the O.P to the complainant, Md. Abil Hossain.
Further the O.P, Md. Amrul @ Amrul Hoque is directed to pay/refund Rs.1,20,000/- to the complainant with Rs.30,000/- as compensation for mental pain and agony. The ordered amount shall pay to the Complainant within 45 days failure of which the Opposite Party shall pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
