Judgment : Dt.10.11.2017
Shri S. K. Verma, President.
This is a complaint made by Susanta Ranjan Mitra, Samir Mitra and Shila Chandra, residing at 2/190A, Bijoygarh, P.O. & P.S.-Jadavpur, Kolkata-700 032 against M/s Creative Construction, a partnership firm, having its office at 1/33, Rajendra Prasad Colony, Kolkata-700 033, represented by its partners Soumya Mukherjee, son of Nirmal Mukherjee, residing at 4/69, Rajendra Prasad Colony, P.S.-Jadavpur, Kolkata-700 033, OP No.1, Manik Gangully, son of late R.N.Gangully,1/28, Rajendra Prasad Colony, P.S.-Jadavpur, Kolkata-700 033, OP No.2, Apu Chatterjee, son of late Krishna Kanta Chatterjee, 1/33, R. P. Colony, P.S.-Jadavpur Kolkata-700 033, OP No.3 and Sushanta Chowdhury, son of late Jitendra Chowdhury of 1/79, R. P. Colony, P.S.-Jadavpur, Kolkata-700 033, OP No.4, praying for forfeiting the advance money paid by the OPs to the Complainant in total and direction upon the O.P.s to pay Rs.5,00,000/- as compensation for deficiency in service and unfair trade practice and direction upon the OP to execute and register a cancellation deed and to pay Rs.50,000/- as litigation cost.
Facts in brief are that Complainants are absolute owners of land measuring about 1 katha 5 chitkas at premises No.2/190A, Central Road, Bijoygarh Colony KMC Ward No.96, mouza – Arakpur, J.L.No.39, P.S.-Jadavpur. Complainants entered into a development agreement with OPs in respect of scheduled mentioned property and also registered a power of attorney in favour of the OPs on 14.8.2015. OP paid a sum of Rs.2,00,000/- to the Complainants a agreed in the agreement. But, the OPs failed and neglected to start construction work over the scheduled property as per terms of development agreement. Complainant made complaint before the Assistant Director, Dept. of Consumer Affairs and the matter was settled and between the parties as per following terms :
(a) that the development agreement and power of attorney will be cancelled on the 15.3.2017. Complainant to pay sum of Rs.6,000/- to the OP as cancellation charge of development agreement and power of attorney,
(b) OP would pay Rs.1,00,000/- out of Rs.2,00,000/- and Rs.1,00,000/- will be forfeited. Since the matter could not be settled, Complainant filed this case.
OP filed written version and denied the allegations of the complaint. They have alleged that Complainant is not a consumer and this Forum does not have jurisdiction to file this complaint. So, OP prays for dismissal of this complaint.
Decision with reasons
Complainant filed affidavit-in-chief to which OP did not file questionnaire. OP also did not file affidavit-in-chief.
Main point for determination is whether Complainant is entitled to the reliefs which they have prayed.
On perusal of the prayer portion, it appears that Complainant has prayed for an order of forfeiture of the money which complaint received from OP. In this regard, paragraph 8 of the complaint petition states that there was allegedly settlement between the parties for refund of Rs.1,00,000/- from Complainant to OP, which was also not made. Further, it appears that this prayer does not fall under the purview of C.P.Act. It is because this does not reflect any deficiency in service and so, it cannot be allowed.
Second prayer is claim of compensation of Rs.5,00,000/-. No reason is furnished in the complaint petition as to how Complainants are entitled for compensation of Rs.5,00,000/-. As such, this prayer also does not appear to be justified.
Third prayer is a direction upon the OP to execute and register a cancellation deed. In our view, such direction cannot be given to either of the parties because any contract is result of privity amongst parties and unless clear violation is established, such direction is not warranted.
Complainants have also prayed for litigation cost of Rs.50,000/-. In our view, since Complainant failed to prove the main allegation, the question of award of litigation cost does not arise.
Hence,
ordered
CC/287/2017 and the same is dismissed on contest.
