DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No. 77/2020

Date of Filing                        Date of Admission                Date of Disposal

13.10.2020                                14.10.2020                                13.07.2023

P R E S E N T                :- Smt. Sukla Sengupta………………President.

:- Smt. Monisha Shaw.……………… Member.

                                       :- Sri.  Abhijit Basu…………………. Member.

JUDGMENT/FINAL ORDER

          This is a complaint filed by the Complainant U/s 35 r/w section 36,37,38 and 39 of the Consumer Protection Act, 2019.

          The fact of the case in brief is that the Complainant in response to the advertisement of the Opposite Parties made contacts with them and intend to purchase a self contained residential flat measuring about 470 sq.ft. consisting with 1 bed-room, 1 kitchen, 1 dinning and 1 toilet at premises no. 25, under -18, Chittababu Sarani, Udaypur within the ambit of North Dum Dum Municipality, P.S. Nimta, Calcutta – 700049, at a consideration of Rs. 9,25,000/-.

          Thereafter, the Complainant entered into an agreement for sale in respect of the flat in question with the Opposite Parties on payment of Rs. 5,00,000/- as part consideration out of Rs. 9,25,000/- in total on 28/06/2018. It was agreed by and between the parties that the rest amount of Rs. 4,25,000/- shall be paid within 1 year from the date of execution of the agreement for sale. The photocopy of the agreement for sale dated 28/06/2018 is marked as ‘P-1’. It is further stated by the Complainant that the Opposite Parties has handed over the possession letter along with the peaceful possession of the subject flat28/06/2018which is marked as ‘P-2’.

          It is the further case of the Complainant that he paid the rest amount of consideration within 1 year from the date of agreement for sale time to time by issuing cheque on several occasion in favour of the Opposite Party No. 2. The photocopy of the bank account statement is marked as ‘P-3’.

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          It is alleged by the Complainant that he has been trapped by the unfair trade practice by the O.P. / Developer and since last one and half year the Complainant requested him on several occasions to execute and register the deed of conveyance in his favour but they debarred the same on different plea. The Complainant further stated that he paid the entire consideration amount of Rs. 9,25,000/- together with Rs. 75,000/- towards registration cost to the Opposite Parties but till date the Opposite Parties did not execute and register the deed of conveyance. Rather they tried to create third party interest in the subject flat.

Hence, having no other alternative the Complainant served a legal notice upon the Opposite Parties on 28/06/2019 but the Opposite Parties did not response the same. Hence, this petition of complaint is filed by the Complainant to give direction to the Opposite Parties to execute and register the deed of conveyance in respect of the subject flat as per schedule mentioned in the petition of complaint i.d. to refund the entire amount of Rs. 9,25,000/- towards consideration money of the subject flat along with Rs. 75,000/- for registration cost in total Rs. 10,00,000/- to the Complainant together with interest till realization. The Complainant further prayed for compensation of Rs. 1,00,000/- for harassment, mental pain and agony along with litigation cost of Rs. 10,000/-.

The Opposite Parties have contested the claim application by filing a W/V denying all the material allegations levelled against them. It is stated by the contesting Opposite Parties that the petition of complaint is totally false and malafide and misleading. The Opposite Parties alleged the complainant obtained signature on the Chuktipatra dated 28/06/2018 and using the same for cheating the O.Ps.

It is further stated by the Opposite Parties that actually they have taken loan on interest from the Complainant time to time for construction and for the transaction the Complainant had issued the cheque being no. 828069 amounting to Rs. 5,00,00/- and other transactions has also made. The Opposite Parties paid the interest upon the said loan and the business relation was gradually developed between the Complainant and the Opposite Parties.

It is further stated by the Opposite Parties that the Complainant convinced the Opposite Parties that the flat in question and the possession of the said flat be kept with the Complainant as the security of the loan amount and obtained the signature of the Opposite Parties on the Chuktipatra but subsequently the Complainant insisted the Opposite Parties to transfer another flat in his name being flat area measuring about 450 sq.ft. including super built-up area complete marble floor along with one bed room, one study room, one kitchen room, one dining room and one bath room situated on the 2^nd floor at 23, Chitta basu Sarani, Nimta, Kolkata 700049, in part of R.S. Dag No. 5421, Mouza Dakhin Nimta, Khatian No. 1024, J. L. No. 8, R. S. Dag No. 102, Touzi No. 173, P.O. & P.S. Nimta under Holding No. 23, Ward No. 29, under North Dum Dum Municipality, District North 24 Parganas vide Deed No. 1-1526-009712020, dated 06/03/2020.

The O.Ps have contested the claim application by filing a written statement denying all the material allegations leveled against them.

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It is the case of the opposite parties that the petition of complaint is totally false, fabricated, concocted and it has no cause of action so the same is liable to be dismissed.

The opposite parties further stated that they have taken loan on interest from the complainant time to time for their construction business. The complainant issued the cheque being No. 828069 amounting to Rs. 5,00,000/- for the purpose of business of the opposite parties. The other transactions are also been made by the  for that purpose.  The opposite parties made chuktipatra with the complainant as the security of the loan amount and he obtained the signatures of the opposite parties on the Chukti Patra to that effect. Subsequently the complainant insisted the opposite parties to transfer another flat in the name of the complainant being flat area measuring about 450 Sq.ft including the super built up area with complete marble floor, consisting with one bed room, one study, one kitchen, one dining room and one bathroom situated in the second floor at 23, Chitta Ranjan Sarani, Nimta, Kolkata-49 under North Dum Dum Municipality, Dist-North 24 Parganas registered under Book-I, Valume No.1526-2020.

It is further stated by the opposite parties that it is evident from the content of the petition of complaint that a sum of Rs. 5,00,000/- has been paid by the complainant as advance amount of the consideration money of the flat in question but that flat has already been registered in the name of the complainant. But the complainant tactfully in order to cheat the opposite parties shows the said cheque of Rs. 5,00,000/- as the consideration money of the flat already registered in his name.

It is the further case of the opposite parties that the complainant has trapped them as they took loan on interest from him for their construction business. It has already been mentioned in their written version that the opposite parties took loan from the complainant of Rs. 5,00,000/- and they paid interest upon the loan taken by them till the month of December, 2020. They stated that the flat in question which the complainant has kept as the security of loan be returned immediately and as the other flat has already been registered in his name and the possession of the same has already been handed over to him.

Under such circumstances there was no deficiency in service on their part so the complainant is not entitled to get any relief in this case and the case is liable to be dismissed with cost.

The opposite parties has also placed the counter claim by praying to give direction upon the complainant to hand over the possession of the flat which has been kept in the possession of the complainant because the other flat has already been transferred by way of registration and handing over possession in favour of the complainant.

In view of the above stated pleadings the points for consideration are as follows:-

1. Is the case maintainable?
2. Has the complainant any cause of action to file this case?

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3. Is there any deficiency in service on the part of the opposite parties?
4. Are the opposite parties entitled to get back the flat in question from the complainant as they prayed for?
5. Is the complainant entitled to get relief as prayed for?
6. To what other relief or reliefs is the complainant entitled to get?

Decision with Reasons

All the points are taken up together for convenience of discussion and to avoid unnecessary repetition.

On careful perusal of the materials on record it appears that this commission has ample territorial as well as pecuniary jurisdiction to file this case. Morevere from the materials on record it appears that the cause of action arose on 28.06.2018 and thereafter it was continuing till filing of this case and the complainant has filed this case on 13.10.2020 which is well within the period of limitation. Hence in all respect the case is well maintainable in the eye of law.

As per facts and circumstances of this case the complainant intend to purchase a self- contained flat on the ground floor of the property in question measuring about 470 Sq. fit consisting of one bed room, one kitchen, one dining and one toilet at premises No. 25 under 18, Chittaranjan Sarani, Udaipur, Ward No. 29, within the ambit of North Dum Dum Municipality, P.S. Nimta, Kolkata-49, Dist-24 Pgs(N) on part payment of Rs. 5,00,000/- out of total consideration of Rs. 9,25,000/- from the opposite parties. Accordingly, the complainant and the opposite parties have entered into an agreement for sale dated 28.06.2018 and thereafter even on payment of the total consideration till 10.02.2019 so far the money receipt is concerned as submitted by the complainant vide annexure P-. It is found that  the cause of action was bundle of facts and it was continuing but on repeated requests the opposite parties did not register the deed of conveyance in respect of the subject flat even after handing over the possession of the same in favour of the complainant. So the complainant filed this case on 13.10.2020 before this commission.

From the discussion made above it is held by this commission that there is / was sufficient cause of action on the part of the complainant to file this case.

So far the agreement for sale is concerned dated 28.06.2018 as we got it from the materials on record and annexure P-1 and from the possession letter issued by the O.P. No.2- developer  (P-2) Sri Nirmal Dey it is palpably clear that admittedly the complainant agreed to purchase the flat in question on payment of consideration of more than Rs.9,25,000/- to the O.Ps. The opposite parties received the said amount as shown from annexure P-4 in series. Hence from the said facts and circumstances as well as from the evidence on record it is held by this commission that the complainant is a consumer and the opposite parties are the service providers.

When drom the evidence on record it is established that the complainant is a consumer and the opposite parties are the service provider then let us see whether

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there was any sort of deficiency in service on the part of the opposite parties or not. From the content of the written version and also from the evidence of the opposite parties it is evident that once they are trying to establish that the complainant is a investor to their business.again they stated that they entered into an agreement for sale dated 28.06.2018 with the complainant on receipt of part consideration of Rs. 5,00,000/-. Though the opposite parties alleged that the complainant forcibly possesseds the subject flat as security of his investment of Rs. 5,00,000/- in the business of the opposite parties. But they failed to prove their case by adducing cogent evidence.

It is also revealed that they got the opportunity to cross examine the complainant but they did not submit any questionnaire even after getting the opportunity. From which it can safely be held by this commission that the opposite parties failed to establish their case rather from the agreement for sale dated 28.06.2018 it is proved that they entered into agreement for sale with  the complainant on receipt of part consideration of Rs. 500,000/- and subsequently they received the entire consideration money of Rs. 9,25,000/- and hand over the possession of the subject flat by issuing possession letter dated 28.06.2018 signed by the O.P. No.2- Nirmal Dey. The complainant repeatedly requested the opposite parties to register the deed of conveyance in respect of the subject flat in favour of the complainant. But the opposite parties did not pay any heed to his request which is the cause of filing of this case.

And which caused negligence, harassment, mental pain and going  to the complainant. Such conduct of the opposite parties should be considered as deficiency in service on their part.

Hence in view of the discussion made above it is opined by this commission that as service provider there is deficiency in service on the part of the opposite parties and they compelled the complainant to come before this commission to get relief.

In view of the discussion made above it is held that the complainant being a consumer could be able to prove this case beyond reasonable doubt and is entitled to get the relief as prayed for.

The case is properly stamped.

All the points are thus, decided in favour of the complainant.

Hence ,

                 ordered,

that the case be and the same is allowed on contest against the opposite parties with cost of Rs. 2,000/-.

The complainant do get the decree as prayed for.

The opposite parties are directed to execute the deed of conveyance in respect of the subject flat as mentioned in the schedule of the petition of complaint in favour of the complainant within 45 days from the date of this order. In default

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they are directed to refund the entire consideration money of Rs. 9,25,000/- along with Rs. 75,000/- in total Rs. 10,00,000/- to the complainant along with interest at the rate of 9% p.a. of the total amount from the date of filing of this case till realization within the stipulated period either jointly or severally.

The opposite parties are further directed to give compensation to the complainant of Rs. 20,000/- either jointly or severally along with litigation cost of Rs, 5,000/- within 45 days from the date of this order.

In default the complainant will be at liberty to execute the decree as per law.

Let a plain copy of this order be given to the parties free of cost as per CPR, 2005.

Dictated and Corrected by me

President

Member                                            Member                                  President