FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The instant complaint case has been filed by the complainant U/s 12 read with section 13 and 14 of CP Act, 1986 as amended up to date.
The fact of the case in a nut shell is that the complainant is the mother of one Asit Baran Mondal, since deceased who died intested as bachelor on 11.12.2017 leaving behind his mother ie complainant herself.
It is further stated by the complainant that said Asit Baran Mondal, since deceased during his life time entered into an agreement for sale with the OP. That agreement for sale was executed in between Asit Baran Mondal, since deceased and the OP on 26.06.2017 for purchasing a residential flat measuring about 34 sq. meter ie entire ground floor with undivided share of land lying and situated at 502, Rajdanga Main Road, PS-Kasba, Kolkata-700107 as described in the schedule of the petition of complaint at a full consideration of Rs. 11,00,000/- only.
It is further stated by the complainant that her son Asit Baran Mondal, since deceased during his lifetime pay a sum of Rs. 5,50,000/- only in advance towards the consideration amount of the subject flat.
After demise of the said Asit Baran Mondal, the complainant and her other family member tried to make contact with the OP to dispose of/ settle the schedule property in question but the OP never pay any heed to their request. Subsequently, the complainant sent a letter under registered post to the OP with a request to settle the dispute in respect of the property in question but the said letter was returned back with postal remark “unclaimed”. Without having any other alternative, the complainant made a complaint before the office of the Assistant Director, Consumer Affairs and Fair Business Practice, South 24 Pgs regional office dated 21.08.2018.
The notice was served upon the OP to appear before the Assistant Director to settle the matter through process of mediation but the OP did not settle the dispute in spite of appearing therein.
So, the matter was not settled and then the complainant has filed this case before this forum, because the OP denied the repeated request of the complainant to handover the possession of the schedule property in favour of the complainant after taking the balance consideration amount as per agreement for sale which should be considered as deficiency in service on the part of the OPs.
Hence, the instant petition of complaint is filed with a prayer to give direction upon the OP to handover the flat in question as mentioned in schedule of the petition of complaint and to execute and register the deed of conveyance in respect of the subject flat on receipt of balance consideration money. The complainant further prayed for giving direction upon the OP to pay compensation of Rs. 1,00,000/- for harassment , mental pain and agony along with litigation cost.
The OP has contested the petition of complaint by filing WV denying all the material allegation leveled against him.
Admittedly, one Asit Baran Mondal since deceased being the son of the complainant paid Rs. 5,50,000/- to the OP for purchasing the subject flat and entered into agreement for sale with the OP on 26.06.2017. it is further stated by the OP that after execution of the agreement for sale said Asit Baran Mondal since deceased has been fallen ill and he cancelled the agreement for sale dated 26.06.2017 and requested the OP to refund the amount of Rs. 5,50,000/- paid by him. The OP refunded the amount to Asit Baran Mondal by cash against proper money receipt actually the OP paid more than actual amount paid by Asit Baran Mondal since deceased. under such circumstances, it is the OPs case that there is no claim and/or demand of the amount failed by Asit Baran Mondal because the agreement for sale is not existence as it was cancelled by Asit Baran Mondal himself during his lifetime and the amount of Rs. 5,50,000/- was refunded back to him as per his request. Actually more than actual amount was paid by Asit Baran Mondal was refunded by the OP and claim if any is the claim of the OP refunded the excess money to him by the complainant.
It is the further case of the OPs that the claim of the complainant is void and false and she has no cause of action to file the case. It is also denied that OP did never pay any heed to the request of the complainant. The said Asit Baran Mondal since deceased received the entire amount. So, there is/was no due since the lifetime of Asit Baran Mondal but the nephew of the deceased Asit Baran Mondal misbehaved with the OP though he has no locus- standi/authority to demand the amount from the OP.
As per OP’s case the agreement for sale which was executed by and between said Asit Baran Mondal since deceased and the OP has no existence at all as it was cancelled b y said Asit Baran Mondal during his life time. So, the present petition of complaint is liable to be dismissed with cost as it has no cause of action.
In view of the fact and circumstances, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
On careful perusal of the materials on record, and also keep in view in the position of law it appears that this forum has got the territorial as well as pecuniary jurisdiction to try this case.
From the case record it is also found that one Asit Baran Mondal since deceased son of the complainant entered into agreement with the OP for purchasing a flat measuring about 44 sq. meter ie entire ground floor of the subject premises as is mentioned in schedule of the petition of complaint with undivided share of land situated at 502, Rajdanga Main Road, PS-Kasba, Kolkata-700107 at a full consideration of Rs. 11,00,000/- only. It is also the complainant’s case that her son deceased Asit Baran Mondal paid Rs. 5,50,000/- only as advance out of Rs. 11,00,000/- of the entire consideration in respect of the subject flat which is also admitted fact as we got it from the WV and evidence filed by the OP.
The complainant alleged that after demise of his son she requested the OP to handover the possession of the subject flat and also execute and register deed of conveyance in her favour on receipt of the balance consideration but the OP did not pay any attention to her request and did not hand over the subject flat or execute and register the deed of conveyance of the same in favour of the complainant. Then the complainant sent a letter to the OPs on 01.08.2018 which was received on 05.09.2018 but the OP did not make any contact with the complainant so, the cause arisen on 01.08.2018 and the complainant filed the case on 26.08.2019 which is well within the period of limitation.
From the afore mentioned discussion it is held by this forum that the case is not barred by limitation and it is well maintainable in the eye of law.
Let us see whether complainant is a consumer or not within the ambit of CP Act, 1986.
it is alleged by the complainant that her son deceased Asit Baran Mondal entered into agreement for sale with the OP for purchasing the subject flat measuring about 44 sq. meter situated at 502, Rajdanga Road PS-Kasba Kolkata-107.
The total valuation was fixed on Rs 11,00,000/- and Asit Baran Mondal admittedly paid Rs 5,50,000/- to the OP as advance towards of consideration money of the subject flat and admittedly that was duly received by the OP.
In this context, contrary OPs case is that admittedly Asit Barna Mondal being the youngest son of the complainant entered into agreement for sale dated 26.06.2017 with the OP for purchasing the subject flat as mentioned in the schedule of the petition of complaint and he has also paid Rs. 5,50,000/- to the OP as earnest money in respect of the consideration money of the subject flat. The OP in his evidence and WV stated that after execution of agreement for sale said Asit Barna Mondal was fallen ill and to meet his financial requirement for his medical treatment he cancelled the agreement for sale and requested the Op to refund the money of Rs. 5,50,000/- paid by him. The OP cancelled the agreement for sale dated 26.06.2017 and refund the amount more than Rs 5,55,000/- to the Asit Barna Mondal since deceased as per request against money receipts. In support of his say the OP filed two money receipt dated 12.10.2017 and 18.10.2017 where from it is found that said Asit Barna Mondal since deceased s/o late Ram Prasad Mondal issued money receipt in favour of the OP Mohan Nayak on refund of Rs. 3,00,000/- vide money receipt dated 12.10.2017 and also issued another money receipt on 18.10.2017 in favour of the OP Mohan Nayak on refund of Rs. 3,00,000/- more for his medical treatment. The OP further demanded that he paid more money then the amount actually paid by Asit Baran Mondal since deceased ie Rs 5,50,000/-. but the complainant failed to adduce any sort of document against this two money receipt dated 12.10.2017 and 18.10.2017 as filed by the OP along with his evidence. It is stated by the complainant in her petition of complaint and evidence that Asit Baran Mondal, his son died due to his illness. So, it is believable that Asit Baran Mondal since deceased cancelled agreement for sale dated 26.06.2017 and refund back the amount from the OP which was urgently required for him for his medical treatment and this is very natural that a prudent person should try to save his life by getting proper medical treatment than to purchase a flat. So this forum believed the case of the OP that the complainant’s son Asit Baran Mondal since deceased got the refund of earnest money from the OP paid by him at the time of execution of the agreement for sale by issuing two money receipt dated 12.10.2017 and 18.10.2017 of Rs. 3,00,000/- each in favour of the OP each. As the complainant failed to prove her case that the agreement for sale dated 26.06.2017 is still in existence and Asit Baran Mondal since deceased did not get back the earnest money from the OP amounting to Rs. 5,50,000/- paid by him this forum is of opinion that the complainant failed to prove that on the date of filing of this case she was a consumer within the meaning of the provision of CP Act, 1986. because prior that day Asit Baran Mondal since deceased got back the amount paid by him as earnest money to the OP and cancelled the agreement for sale dated 26.06.2017. So when the complainant being the natural guardian of the deceased Asit Baran Mondal filed the case at that time she had no locus-standi as a consumer to file this case.
On the basis of the discussion made above, it is our considered view that the complainant failed to prove her case as a consumer within the ambit of CP Act, 1986, if that be so, the question of deficiency in service on the part of the OP does not arise at all. So, considering all the aspect including the facts and circumstances as well as evidence on the record. This forum is opined that when Asit Baran Mondal since deceased being the son of the complainant received back the earnest money as paid by him amounting to Rs. 5,50,000/- from the OP by issuing two money receipt dated 12.10.2017 and 18.10.2017 after cancelling the agreement for sale dated 26.06.2017 then there was no consumer and service provider relationship between Asit Baran Mondal and OP of this case and the question of handing over the subject flat and registration of the same in favour of the complainant has no existence.
In view of the discussion made above.
This forum is of view that the complainant failed to prove her case as a consumer as per provision of CP Act, 1986 and also failed to prove any sort of deficiency in service on the part of the OPs. Thus, she is not entitled to get any relief as prayed for.
All the points of consideration are considered and decided accordingly.
The case is properly stamped.
Hence,
Ordered
that the case be and the same is dismissed on contest without any cost against the OP.
