Moumita Adhikary,

d/o. lt. Gopal Chandra Adhikary,

18/3, Baikantha  Chatterjee Lane,

P.S. & District – Howrah, -------------------------------------------------  COMPLAINANT.

-          Versus   -

1.         M/S. Amit Construction,

            a proprietorship firm having its office

            at 37, Charuchandra Singha Lane, P.S. & District – Howrah,

PIN – 711101.

2.         Shri Amit  Gupta,

s/o. Arun Kumar Gupta

of 37,  Charuchandra  Singha Lane,

P.S. & District – Howrah,

PIN – 711101.

3.         Mohammod Shibli Nasan,

son of late Mohammad Hanif

of 28, Narasingha Bose Lane, P.S. Sibpur,

District – Howrah,

PIN – 711102.  owrah,

Howrah---------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.                  It is the specific grievance of the complainant, Smt. Moumita Adhikary, that

even in spite of receiving Rs. 4,00,000/- as earnest money for the scheduled flat from her, O.Ps. did not handover the possession of the said flat.

2.                  Brief facts of the case is that depending on one development agreement dated

14-05-2004 entered into between O.P. nos. 1 & 2 and O.P. no. 3, complainant wanted to purchase one flat in the newly constructed building at the premises no. 27, Narshingha Bose Lane, P.S. Shibpur, District – Howrah, under Howrah Municipal Corporation, Ward no. 30. For that purpose one sale agreement was prepared and signed by and between the

complainant and O.P. nos. 1 & 2 on payment of  Rs. 4,00,000/- on 06-02-2012 vide annexure xerox copy of the agreement dated 06-02-2012. And as per terms and conditions no. 9, the O.P. no. 1 & 2 were supposed to deliver the possession of the flat in question by 20-02-2012. But O.Ps. miserably failed to comply with that terms and condition. And even after repeated requests when O.Ps. could not deliver the possession, complainant asked for the return of the earnest money of Rs. 4,00,000/- from the O.Ps. It is also alleged by the complainant that both the owner and the developer i.e., O.P. no. 3 and O.P. nos. 1 & 2 are in collusion with each other and they, willfully, are not delivering the possession to her. However, after much persuasion, O.Ps. gave four post dated A/C payee cheques totaling Rs, 2,00,000/- as part payment of Rs. 4,00,000/- which was received by the complainant on 16-08-2012 towards the cancellation of the sale agreement dated 06-02-2012 vide annexure endorsement made by the complainant herself on the back side of the agreement dated 06-02-2012. But unfortunately all four cheques bearing different dates were dishonoured due to insufficient fund vide annexures xerox copies of cheques and bank’s reports. The complainant requested the O.Ps. to return her Rs. 4,00,000/- verbally on 28-01-2013. But they did not  pay any heed to that requests. And lastly on 01-02-2013 when the complainant made the same request to O.Ps. O.Ps. straight way refused to the return the same. Being aggrieved and finding no other alternative, complainant filed this instant case U/S 12 of the C.P. Act, 1986 ( as amended up to date ) praying for a direction to be given upon the O.Ps. to return Rs. 4,00,000/- with statutory interest and to pay an amount of  Rs. 3,00,000/- as compensation together with a litigation cost of Rs. 50,000/- along with other relief or reliefs as the Forum may deem fit and proper.  

3.                  Notices were served upon the o.ps. Even after receiving the notice of this

Forum only O.P. no. 3 once appeared but never filed any written version. And O.P. nos. 1 & 2 never appeared or filed any written version. Accordingly, the case was heard ex parte.

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

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

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

DECISION  WITH   REASONS      :

5.                  Both the points are  taken up together for consideration.            We have carefully

gone through the petition of complaint sworn on affidavit along with the documents and noted their contents. It is nothing but a very clear case of unfair trade practice adopted by the O.Ps. O.Ps. have got no intention to handover the flat in question to the complainant. Even O.P. no. 2 never bothered to be little careful while giving all a/c payee cheques to the complainant although he had complete knowledge of insufficient fund. May be the fact is that the complainant is a lady and O.Ps. thought that she could easily be trapped and harassed. And even they might have thought that neither the flat nor the earnest money of Rs. 4,00,000/- would have to be given to the complainant. But we must say that they are living in fools’ paradise. Their gross negligence in discharging their duties towards the complainant has come within the purview of the C.P. Act, 1986 as deficiency in service. Payment made towards the purchase of a flat, i.e., a shelter, is of utmost importance for a person. With such an important affair of human being, no one should be allowed to play with that issue. Furthermore, even after receiving the summon of this Forum, o.ps. never bothered to appear before this Forum. No written version had also been filed by them. It clearly shows that they have nothing to put forward in their favour. And we do not have any difficulty to believe the unchallenged testimony of the complainant.  So, we are of candid opinion that it is a fit case where the prayers of the complainant should be allowed.     

      Hence,

                                    O     R     D      E      R      E        D

      That the C. C. Case No.  42 of 2013 ( HDF 42 of 2013 )  be  allowed ex party  with  costs  against all the O.Ps. 

      That the  O.Ps. are jointly and severally directed to refund  Rs. 4,00,000/- to the complainant.

      That the complainant do get an amount of  Rs.  Rs. 50,000/- as compensation and Rs. 10,000/- as litigation costs

      That the o.ps. are  directed jointly and severally to pay the entire  amount of  Rs. 4,60,000/-  to the complainant within a month from the date of this order, i.d., the total amount shall carry an interest @ 10% p.a. till actual payment.

      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.  

      (  Jhumki Saha  )                                                                  

  Member, C.D.R.F.,Howrah.

 ( Jhumki Saha )                         ( P. K. Chatterjee )                (T.K. Bhattacharya  )

 Member,                                     Member,                                President,

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

                                          .