DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO.-72/2010
PETITIONER : =Vs.= O.Ps.
Smt. Rekha Sarkar 1) M/s ASCO Enterprises
Sri Suman Sarkar DC-16, Narayantala (West)
9, Ramkrishna Road Deshbandhu Nagar, VIP Road
Rabindra Nagar P.S. Rajarhat, Kol.-59.
Dum Dum Cantonment Rep. by,- its Prop.
P.S. Dum Dum Madhusudan Chakrabarty
Dist. North 24 Pgs. BD-254, Salt Lake, Kol.-64
P.S. Bidhan Nagar(North)
2) Smt. Santi Prova Singha
3) Sri Prabir Singha
4) Sri Subir Singha
5) Smt. Pratima Biswas
212, Sarat Bose Road,
P.S. Dum Dum,
Dist. North 24 Pgs., Kol.-65.
P R E S E N T :- Shri M. K. Pal ….............. President
:- Shri A. K. Chanda ….............. Member
J U D G E M E N T
Date :-29/11/2010.
The case of the complainants, in short, is that the O.P.-1 entered into a joint venture Agreement with the O.Ps.-2 to 5 for developing a schedule property empowering O.P.-1 to sell the flats to the intending buyers from his allocation and to do all acts and deeds on behalf of the O.Ps.-2 to 5. Accordingly, the O.P.-1 started construction inviting the intending buyers to purchase the flats as per specification and on being attracted by such offer the complainant agreed to purchase B schedule flat on the 1st floor at a consideration of Rs.3,80,250/-. The parties entered into an Agreement for Sale on certain terms and conditions on 21/07/2007 in respect of the flat in question. As per terms and conditions, the complainant initially paid Rs.50,000/- and thereafter made several payments i.e. Rs.1,37,000/- on 01/08/2007, Rs.85,000/- on 03/08/2007, Rs.45,000/- on 14/08/2007, Rs.40,000/- on 24/08/2007, Rs.10,000/- on 22/09/2007 and Rs.60,000/- on 17/12/2007 totaling of Rs.4,27,000/-. There is a clause in the Agreement that if the O.P. failed to complete the construction work within the stipulated time he shall refund the advance money paid by the complainant. The complainant then asked the O.P. to deliver possession and to execute the Deed of Sale. The complainant then served legal notice asking the O.P.-1 to refund Rs.4,27,000/- alongwith interest within 15 days but the O.P.-1 requested the complainant to take possession of a flat on the 2nd floor subject to adjustment of payment made by the complainants. It is also the case of the complainant that within waiting for reply of the said notice, O.P.-1 sent four cheques of different dates of Rs.5,00,000/- to the complainant and the very conduct of the O.P.-1 shows that he is not at all willing to execute and register the Deed of Conveyance. The above facts clearly prove the deficiency and negligence on the part of O.P.-1. Hence, this case.
This application was very much resisted by the O.P.-1 by filing W.V. denying all the material allegations as made out in the P.O.C. contending interalia that the case is not maintainable and is barred by limitation.
Dictated and corrected Contd. …. 2/-
C. C. Case No.-72/2010
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It is the specific case of the O.P.-1 that an Agreement for Sale was made by and between the parties. The O.P.-1 on several occasions asked the complainant to execute and register the Deed of Sale after making payment of the balance consideration money but the complainant remained silent which amply proves that the complainants were not willing to get the flat registered. On the contrary, they a notice asking this O.P. to refund the money. It is also specifically stated by the O.P.-1 the O.P. has already transferred the suit flat to a 3rd party and this fact has duly been intimated to the complainant. This O.P. has no negligence or latches on their part. According to O.P., he is always ready and willing to refund the money. But the complainant refused to accept the same. The O.P.-1 denied any negligence or deficiency in service on its part. On the other hand, the complainants are responsible for non performance of the contract. Hence he prayed for dismissal of the case.
The O.Ps.-2 to 5 neither appeared nor filed any W.V. to contest the case.
Points that arise for consideration :-
- Are the complainants consumer under the O.Ps. ?
- Was there any negligence or deficiency on the part of the O.Ps. ?
- Whether the complainants entitled to get relief as prayed for ?
Decision with reasons
All the points are taken together for the sake of convenience and brevity.
Admittedly, there was an Agreement for Sale of a flat on the 1st floor between the parties at a consideration of Rs.3,80,250/-. But it is not known how the complainants paid Rs.4,27,000/- against the consideration of Rs.3,80,250/-. The parties did not make any whisper for such deviation in making payment of consideration money for the flat.
The main grievance of the complainants is that the O.P.-1 did not execute and register the Deed of Conveyance as per terms and conditions in spite of getting the full consideration money. It was alleged by the complainants that it is the clear case of deficiency in service.
On the other hand, the O.P. refuted the allegation of the complainant stating interalia that the complainants are negligent because they slept over the matter when O.P.-1 failed to jerk the complainant in getting the deed executed and registered. It was further alleged that they duly refunded the money with interest by cheque.
We have heard the parties at length and perused the materials on record. Parties blamed each other for non execution of the Deed of Conveyance. It is clear from the averment of the O.P.-1 that they have already sold the flat to a 3rd party when complainants failed to discharged their obligation.
The act on the part of the O.P.-1 is against the true sprit of the intention of the Legislature under which this Act has been made only to protect the interest of the consumer. O.P.-1 ought to have given the flat when he accepted the consideration money before selling it a 3rd party. Such conduct of the O.P.-1 definitely caused mental agony and harassment to the complainants for which they deserved compensation. Since the flat has been sold it would be wise to direct the O.P.-1 to refund the money with statutory interest @ 10% p.a. from the date of filing of this case till its realization.
Dictated and corrected Contd. …. 3/-
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All the points are answered accordingly.
In this result, the case succeeds.
Hence, it is
Ordered
That the case be and the same is allowed on contest with cost.
The O.P.-1 is directed to refund the entire amount of consideration for Rs.4,27,000/- alongwith interest @ 10% p.a. from the date of filing of this case i.e. 08/03/2010 till the date of realization within a period of 30 days from the date of this order.
The O.P.-1 is further directed to pay Rs.10,000/- towards compensation for causing harassment and mental agony to the complainant within a period of 30 days from this date.
There shall be an order of cost of Rs.1,000/- is to be paid by the O.P.-1 to the complainant within 30 days from this date.
In the event of non compliance of any portion of the order within the stipulated period the complainant is at liberty to execute the same as per provisions of law.
Let copies of the order be supplied to the parties free of cost when applied for.
Dictated and corrected
Member President
