DIST. CONSUMER DISPUTES REDRESAL COMMISSION
NORTH 24 Pgs., BARASAT.
M.A.No. 126/2021
Arising out of C.C. 298/ 2021
Date of Filing: Date of Admission: Date of Disposal:
29.12.2021 29.12.2021 20.04.2022
Complainant/s:- | Sri Timir Baran Das, S/o. Late Tarapada Das, 147, B.T. Road, Natunpally, P.O. and P.S. Khardah, Dist- North 24 Parganas, Kolkata-700119. -Vs. - |
Opposite Party/s:- | 1.M/s. B. K. Enterprise a proprietorship Firm, 316, Baidya Para, Sodepur Barasat Road, P.O. and P.S. Ghola, Kol-700111. Represented by its proprietor- - Sir Bablu Karmakar, S/o. Biswanath Karmakar, 29/11, Desh Bandhu Nagar, P.O. Deshbandhunagar, P.S. Baguiati, Dist- North 24 Parganas, Kolkata- 700059.
2. Sri Dilip Dutta, S/o. Biswanath Dutta, 3. Smt. Rinku Dutta, W/o. Dilip Dutta, both residing at Mandalganti (Ramkrishnapally), P.O. Deshbandhunagar, P.S. Baguiati, Dist- North 24 Parganas, Kolkata-700059. 4. Sri Diptendu Maity, S/o. Birendra Nath Maity, Aditya Apartment, II, GA-79, Narayantala West, P.O. Deshbandhunagar,P.S. Baguiati, Dist- North 24 Parganas, Kolkata-700059. |
P R E S E N T :- Shri Debasis Mukhopadhyay…………President.
:- Smt. Monisha Shaw …………………. Member.
FINAL ORDER
The M.A. No. 126/2021 is taken up for order. It was heard on 18.04.22.
The petitioner/ complainant by filing this M.A. stated that as per agreement between the parties, the complainant it to purchase the subject flat as described in ‘A’ schedule of the complaint from the opposite parties at a consideration of Rs. 31,00,000/- out of which the petitioner paid a sum of Rs. 25,00,000/- to the O.P. No.1 by a cheque dated 12.11.2019. The cheque was dis-honoured and as per demand of O.P. No.1 the petitioner on 16.11.2019 sent Rs. 25,00,000/- to the O.P. No.1 through RTGS on 16.11.2019. As per agreement the O.P. No.1 had to hand over the possession in August, 2020 upon receiving of the balance consideration. The petitioner was ready and willing to pay the balance consideration but the O.P. No.1 did not make the flat ready to hand over the same in a habitable condition to the petitioner. The petitioner time and again visited the O.P. No.1 for registration and possession of the flat and car parking area after receiving Rs. 6,00,000/- but the O.P. No.1 avoided the petitioner. Suddenly, on 17.12.2021 the petitioner received message from his bank that Rs. 25,00,000/- was deposited in his account and on enquiry the petitioner came to know that O.P. No.1 had sent the total advance amount cancelling the agreement dated 10.11.2019 by the refund of the advance money on 18.12.2021. The petitioner stated that the act of the O.Ps amounted to unfair trade practice and there was gross negligence and deficiency in service by the O.Ps since the O.Ps are duty bound to hand over the flat in question by receiving the balance consideration from the complainant. Hence the petitioner prayed for interim order of injunction to restrain the O.P. No.1 not to sell or create any 3rd party interest over the subject flat as described in the ‘B’ schedule of the petition.
Contd/-2
M.A. No. 126/2021
:: 2 ::
The O.P. No1 by filing written objection contended that the complainant/ petitioner did not comply with the terms and condition of the agreement as there was a condition to deliver the flat within 31st August , 2020 and the complainant did not pay the balance amount within the time fixed. The O.P contended that for default of the complainant in paying the balance consideration within time fixed the agreement was cancelled and the amount of Rs. 25,00,000/- was returned to the complainant.
The O.P. No.1 stated that even after the complainant received the money back on 18.12.2021 he never protested but instead filed this complaint case which is not maintainable. The O.P. No.1 stated that the O.P acted honestly and sincerely in accordance with the agreement made between the parties on 10.11.2019 and hence the O.P. No.1 prayed for dismissal of the M.A. application with cost.
Considering the contention of the parties we find that it is admitted position that there was an agreement between the parties so that the complainant would get the subject flat at a total consideration of Rs. 31,00,000/- as per agreement dated 10.11.2019.
It is also admitted fact that the complainant paid Rs. 25,00,000/- as advance consideration and the documents submitted by the complainant shows that Rs. 3,00,000/- more was to be paid after completion of inside plaster and the rest amount of Rs. 3,00,000/- was to be paid on registration. But now the O.P. No.1 suddenly cancelled the agreement and refunded Rs. 25,00,000/- to the complainant. The O.P contended that the complainant failed to pay the balance amount as per agreement and therefore the agreement was cancelled. But we find that the amount of Rs. 3,00,000/- was agreed to be paid after completion of inside plaster and rest Rs.3,00,000/- was to be paid on registration. This is a disputed fact as to whether the O.P. No.1 completed the inside plaster or offered the complainant about the registration of the deed, so that the complainant could give the balance consideration of Rs. 6,00,000/- as fixed by the agreement. Thus, we find that the complainant has a prima-facie case and fair question to go to trial and the balance of convenience and in-convenience is in favour of the complainant so that the O.P. No.1 cannot transfer the subject flat to any other 3rd party till disposal of the case. It is obvious that the O.P. No.1 should get the amount of Rs. 28,00,000/- before registration from the complainant to get such an order in his favour, otherwise O.P. No.1 shall suffer loss and injury.
Hence,
it is Ordered,
that the M.A. No. 126/2021 is allowed on contest against the O.P. No.1.
The O.P. No.1 is directed not to transfer the subject flat in question till disposal of the case or till further order to any other 3rd party till disposal of the case upon receiving Rs. 28,00,000/- from the complainant at once. If the O.P. No.1 refuses to accept the amount of Rs. 28,00,000/- the complainant is at liberty to deposit the amount in this commission in favour of the O.P. No.1.
To………………………for W.V.
Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.
Dictated & Corrected by me
President
Member President
