Judgment : Dt.7.9.2017

Shri S. K. Verma, President.

            This is a complaint made by one Pavan Kumar Mishra son of late Tuntun Mishra, residing at 67/A, Bikramgarh, P.S.-Jadavpur, Kolkata-700 032 against M/s Maa Tara Enterprise, a proprietorship firm represented by Sri Jayanta Nandi, son of Sri Jagadish Nandi, having its office at 109/A, Bikramgarh, P.S.-Jadavpur, Kolkata-700 032, OP No.1, (2)(a) Sri Nanda Dulal Ghosh, (b) Sri Dilip Ghosh, (c) Uma Ghosh, (d) Smt. Dipa Ghosh, (e) Smt. Bani Dutta and (f) Smt. Rita Das, all are residing at 1/13, Poddar Nagar, Colony No.1, P.S.-Jadavpur, Kolkata-700 068,  praying for a direction upon the O.P. to return of Rs.6,80,000/- to the Complainant and a direction to the OP to pay Rs.1,00,000/- to the Complainant, another Rs.1,00,000/- as compensation for mental pain and agony and Rs.5,00,000/- as another compensation and litigation cost of Rs.20,000/-.

            Facts in brief are that developer OP No.1 entered into a development agreement on 12.2.2015 with the land owners for construction of a multi-storied building in respect of a land measuring 1 cottah 5 chittacks 7 sq.ft. at Prince Anwar Shah Road. After construction of the said building, the developer desired to sell from his allocation over the measurement about 650 sq.ft. super built up area, south east side on the 2^nd floor consisting of two bed rooms, one dining cum kitchen, one toilet one verandah together with undivided proportionate share of the land with common areas and facilities. Complainant intended to purchase the flat and as a result of agreement the consideration money was fixed as Rs.19,75,000/-. Complainant asked the documents in respect of the said flat for searching the property on which developer said that without giving any money the document cannot be handed over on which Complainant paid a sum of Rs.50,000/- by cheque being No.680066 on 24.8.2015 for purchasing a flat measuring about 650 sq.ft. super built up area. After going through the documents, Complainant requested the developer to prepare an agreement for sale. But developer failed and neglected to prepare the agreement for sale. But, the Complainant paid from time to time sum of Rs.10,30,000/- to the developer. On 15.10.2015, Complainant further paid a sum of Rs.50,000/- in favour of the developer by cash. But, the developer did not issue any money receipt in favour of the Complainant at the time of receiving the said amount. After a lapse of few months, developer failed and neglected to handover the said money receipt and agreement for sale after receiving the considerable amount  of Rs.10,30,000/- out of Rs.19,75,000/-. On several occasion, Complainant requested the developer to handover possession of the said building and execute the deed of conveyance in favour of the Complainant. But the developer failed and neglected to hand over the possession of the said building. Further, on 20.4.2016, OP developer with some anti-social elements came into the residence of the Complainant and threatened him that he will not sell the flat and they compelled the Complainant to receive two cheques of Rs.2,00,000/- and Rs.3,00,000/-. The cheque No.000031 was encashed on 6.5.2016. But the cheque No.000032 was not encashed due to fund insufficiency. Again on 1.8.2016 in the morning the OP came to the residence of Complainant and gave a cheque bearing No.000050 of Rs.1,50,000/- forcefully. The said cheque was encashed. Thereafter Complainant on several occasions and lastly on 30.11.2016 requested the developer to return the Rs.6,80,000/- in favour of the Complainant. Complainant has further submitted that he is a simple and peace loving family man having no means to go in a tussle with the OP No.1 and he wants that his money be returned. OP by his unfair trade practice put the Complainant in serious hardship.  So, Complainant filed this case.

            OP No.2(a) to (d) filed written version and denied all the allegations of the Complaint. Further, they have stated that the complainant is not maintainable and is barred under the principles of waiver, estoppels and acquiescence. The complaint petition is frivolous, speculative and has been filed with mala fide intention. It is bad for mis-joinder and non-joinder of parties. Complainant did not have any cause of action to file this case. The Complainant not at all a consumer and does not have any right to file this complaint. Except this, the OPs have denied all the allegations and prayed for dismissing the complaint petition.

            OP No.1 also filed written version and has denied the allegation of the complaint petition. Further, OP No.1 has stated that the Complainant is a Government Employee residing in the same area and locality and OP No.1 took financial help from the Complainant. OP No.1 got chance to make development of the property mentioned in the complaint petition and has prayed verbal understanding in between the Complainant and OP. The OP will construct a house over the land and asked Complainant to invest some money. So, Complainant gave money as mentioned and OP No.1 issued receipts at the request of the Complainant. There was no question of handing over of any flat and OP No.1 wants to refund the money. But, Complainant did not intent to take back. So, this OP No.1 has prayed for dismissal of the case.

Decision with reasons

           Complainant files affidavit-in-chief to which OPs have filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OPs filed affidavit-in-chief to which Complainant filed questionnaire and OPs filed affidavit-in-reply.

 Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

           Complainant has prayed for refund of Rs.6,80,000/-. It appears on perusal of the receipts filed that Complainant paid Rs.9,80,000/- out of which OP No.1 has returned Rs.3,00,000/-. It also appears that OP intended to refund the money and issued cheque. But the Rs.3,00,000/- cheque was dishonoured.

            So, it appears that Complainant is entitled to the reliefs for refund of Rs.6,80,000/-.

          Further, Complainant has prayed for compensation of Rs.7,00,000/- on different grounds i.e. for unfair trade practice, for mental pain and agony and other compensation of Rs.5,00,000/-. So far as compensation for unfair trade practice is concerned, it appears that there is no question of unfair trade practice because OPs did not enter into any agreement for sale with the Complainant and it is a positive cause of OP No.1 that Complainant gave money as financial assistance to OP No.1.

            In the 2^nd category, Complainant has prayed for compensation of Rs.1,00,000/- for mental pain and agony.

            In this regard, it can be stated that Complainant paid the money to the OP No.1 and it has not been returned till now. It might have created mental pain and agony and so Complainant appears to be entitled for Rs.50,000/- as compensation. In the 3^rd category, Complainant has prayed for compensation of Rs.5,00,000/-, but, Complainant has not stated that on which ground this compensation has been sought for. Accordingly, this compensation of Rs.5,00,000/- does not appear to be justified. Complainant has prayed litigation cost of Rs.20,000/- which appears to be justified because due to the conduct of OP No.1, Complainant could not get the money till now.

            Hence,

ordered

            CC/584/2016 and the same is allowed on contest against OP No.1 and dismissed against other OPs. OP No.1 is directed to refund Rs.6,80,000/- to the Complainant within three months of this order. Further, OP No.1 is directed to pay Rs.50,000/- as compensation and Rs.20,000/- as litigation cost within this period, in default the total amount shall carry interest @ 10%p.a. from the date of this order till realization.