DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT
CC- 54/2017
Date of Filing: Date of Admission: Date of Disposal:
14.07.2016 18.07.2016 25.03.2019 …..
Complainant :- 1. SRI PRABIR DEY
Son of Bhabani Prosad Dey,
Residing at Tentultala, Purbachal, Lane No.7,
Post Office : Rajarhat Gopalpur,
Police Station : Airport, Kolkata-700136,
District : North 24 Parganas, West Bengal,
Mobile : 7687912318
=Vs=
Opposite Parties :- M/S MAA TARA CONSTRUCTION
A Partnership Firm, having its office at
30, Italgacha Road, P.S.- Dum Dum,
P.O.-Dum Dum, Kolkata-700028,
represented by its Partners namely
- NARAYAN CHANDRA GHOSH
Son of Late Biseswar Ghosh,
Durgabari Road, P.O. & P.S.- Dum Dum,
Kolkata-700028.
2. MR. subash Chandra bose
Son of Late Nakuleswar Bose
Residing at 30, Italgacha Road,
P.O.&P.S.-Dum Dum, Kolkata-700028.
3. MR. BIRU PAKSHYA PAUL
Son of Late Upendra Chandra Paul,
Residing at 67, West Kamalapur,
P.O.&P.S.- Dum Dum, Kolkata-700028.
4. Mr. Kajal Dey
Son of Late Sankar Chandra Dey, residing at
57, West Kamalapur, P.O.&P.S.- Dum Dum, Kolkata-700028.
Mobile : 033 4063 0282
5. MR. DEEP GHOSH
Son of Narayan Chandra Ghosh, residing at
52, Durgabari Road, P.O. & P.S.-Dum Dum, Kolkata-700 028
Mobile : 9874887362/9831015996
P R E S E N T :- Sri. Bankim Chandra Chattopadhyay………..…..President.
:- Smt. Silpi Majumder ……………………………………Member.
:- Smt. Monisha Shaw …………………………………….Member.
Cont……P/2
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CC- 54/2017
Judgment
This complaint is filed by the Complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the O.P.s as the O.P.s did not take any step to redress his grievance till filing of this complaint.
The brief facts of the Complaint is that the Complainant entered into an agreement for sale with the Opposite Parties herein dated 14.11.2014, for purchasing ALL THAT Flat being No.2C on the first floor, South East facing, Block-2, measuring 552 sq.ft super built up area more or less consisting two bed rooms, one living-cum dinning, one kitchen, one toilet of the said building at holding no.168, Dr. J.R. Dhar Road, Ward No.11, under Dum Dum Municipality, in the District of North 24 Parganas together with proportionate share and interest in the land ALL THAT piece and parcel of Bastu land measuring about Cottahs 4 Chittacks and 27 sq.ft. line and situated at Mouza Sultanpur, P.S.- Dum Dum, Dag No.3046 under Khatian No.139, J.L. No.10 Re. Su. No.148, Touzi No.172 within the local limits of Dum Dum Municipality being holding no.168, Dr. J.R. Dhar Road, Ward No.10 (old) at present 11, P.S..-Dum Dum, Kolkata-700028, under Additional District Sub Registry Offiice at Cossipore Dum Dum, in the District North 24 Parganas at a total consideration of an amount of Rs.14,22,642/- (Rupees fourteen lakhs twenty two thousand six hundred and forty two) only, which is within Jurisdiction.
The Complainant stated that agreement for sale dated 14.11.2014, the Complainant initially paid to the opposite parties Rs.2,75,000/- only against the aforesaid schedule below flat together with proportionate, undivided and in the indivisible share in the common portions described in the agreement for sale lying and situated at the schedule property.
As per Complainant’s statement the developer delivered only one sketch of the schedule below flat along with the agreement paper and said that Xerox copy of the sanctioned building plan will be provided later because there was no Xerox copy of the same at that point of time.
The Complainant also stated that he paid to the developers Rs.3,50,000/- only. The sale of agreement itself will show the proof of Rs.25,000/- only and rest of money receipts towards advance payment for purchasing the said flat which annexed in ‘B’. As per development agreement it was clearly recorded and stated that the developer will constructed and make the flat tenantable within 12 months from the date of execution thereof.
The Complainant further stated that the schedule time was expired on 13.11.2015 but the said flat was not completed within the stipulated period of 12 months. The developer sent a letter dated 09.05.2016 to the Complainant that the flat was not completed till that date. The Developer provide the Xerox copy of the
Cont……P/3
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CC- 54/2017
sanctioned building plan in the month of March 2016, from where it is evident that the sketch was not matched of the schedule flat which was agreed with the sanctioned building plan.
The Complainant stated that the developers asked him to submit in their office for the cancellation the said agreement. The Complainant sent a letter dated 03.10.2016 to the office of the opposite party for cancellation of the same and asked them to refund the said Rs.6,25,000/- only with benefit and / or compensation and accordingly after receiving the letter the opposite parties did not refund the same but only refunded a sum of Rs.4,80,000/- only to the Complainant.
The Complainant further sent a letter dated 23.11.2016 to the office of the opposite parties but till date they have not sent any reply and not contact regarding the refunding the outstanding money with compensation.
The Complainant further stated that the opposite parties are liable to refund the outstanding money of Rs.1,45,000/- only and along with compensation as per the agreement for sale dated 14.11.2014.
Prayer of the Complainant
To refund Rs.1,45,000/- only along with compensation.
Award cost of the proceedings.
Award any other relief or reliefs to which the Complainant is entitled to law and equity, for the ends of justice.
Foreign issues were framed for the purpose of decision :
Whether the complaint is maintainable or not ?
Whether Complainant is entitled to get relief in this case?
Decision with Reason
On proper study of Complaint and W/V and also considering the agreement of sale of dated 14.11.2014 and further considering the Affidavit-in-Chief of the Complainant and the O.P.s are also the receipt the showing of payment of Rs.6,00,000/- but considering the admission of the O.P.s in their evidence no doubt they received that they got Rs.6,00,000/- from the Complaint but about the payment of Rs.25,000/- by the Complainant to the O.P.s. There is no document and in the above circumstances this forum is convinced to hold that admittedly Rs.6,00,000/- was paid to the O.P.s by the Complainant as per agreement in between the period from 24.10.2014 to 28.07.2015 but fact remains as per agreement dated 14.11.2014 it was the legal duty of the O.P.s to handover possession of the flat within 12 months from the date of execution of the agreement that means it was the legal duty to hand over the flat within 12 months from the date of execution of the date of agreement. But fact remains before 09.05.2016 O.P.s did not so their any intention to inform about the completion
about the flat or anything and from later dated 09.05.2016 issued by O.P.s it is clear that at that time also O.P.s failed to complete the said flat. Considering that fact it is clear that no doubt the O.P.s violated the terms and conditions of the said agreement.
Another fact is that as per sale agreement dated 14.11.2014 along with sketch map of the proposed flat is not tally with the sanctioned building plan of the Municipality issued in the month of March 2016. So it is clear that as per sketch map attached with the agreement of sale would not be handed over to the Complainant under any circumstances in future and no doubt such an act on the part of the O.P.s shall be treated as violation of terms & conditions of the sale agreement dated 14.11.2014 but peculiar fact is that O.P.s have not give any explanation in their W/V regarding this allegation of the Complainant as made in para 7 & 8 of the Complaint, that means O.P.s have no scope to deny this allegation and for which O.P.s are never much silent to deny the above fact.
Truth is that the Complainant send a letter dated 03.10.2016 to the O.P.s and in that letter the Complainant specifically mentioned that the breach of contract as per sale agreement dated 14.11.2014 they shall not take such flat which is not at part the sketch map to sale but against that letter or against the letter dated 23.11.2016 O.P.s did not give any reply to the Complainant and this above facts also prove the O.P.s violated the contract to the agreement in all respect and for that reason the Complainant has/had no negligence and though the Complainant performed his part performance and it is also proved that the O.P.s did not start or complete the flat within 12 months from the date execution of the agreement. But in reality the sanctioned building plan of the construction was taken in the month of March 2016. Then it is proved the O.P.s are suppressed the truth of the fact for takings sanctioned plan from Municipality only in the month of March 2016 and this very vital fact has given this forum a good chance to believe that the O.P.s did not act and performed his part performance as per terms of agreement. So it is proved that breach of contract was done by the O.P.s and for which the Complainant is entitled to get refund of entire paid advance amount from the O.P.s when negligent and deficient manner of service on the part of the O.P.s are proved.
Further considering the agreement clause 16 it can safely be said that the Complainant has not violated the terms and conditions of clause 16 of said agreement and for which O.P.s have no legal right to deduct any portion out of the paid amount of Rs.6,00,000/- as advance and so O.P.s are liable to refund Rs.6,00,000/- along with bank rate interest @7% over the same with effect from 15.11.2015 what the Complainant is entitled to get but fact remains O.P.s have refunded admittedly a sum of Rs.4,80,000/-. So invariable the O.P.s are liable to pay balance amount of Rs.1,20,000/- along with 7% bank rate interest over the same with effect from 15.11.2015 and till is full payment by the O.P.s.
But as because the Complainant has failed to prove the payment of Rs.25,000/- by document the forum is not in a position to give any relief in respect of that of Rs.25,000/-.
In view of the above facts, materials and circumstances this Complainant succeed in part.
The Complainant be and same is allowed in part on contest against the O.P.s with a litigation cost of Rs.5,000/- to be paid by the O.P.s to the Complainant.
O.P.s are directed to refund Rs.1,20,000/- along with 7% bank interest over the same amount since 15.11.2015 and till its full payment to the Complainant.
O.P.s are hereby directed to comply the order of this court within 2 months of the date of this order positively, failing which Complainant shall have his liberty to execute through forum.
Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.
