This case has been filed by the complainant Swapan Das. He states that opposite party no. 1 is the Developer of Schedule ‘A’ Property and was appointed by opposite party no. 2. Opposite party no. 2 is the land owner of the property and opposite party no. 2 also given power of attorney to opposite party no. 1.

The complainant also states that he entered into an agreement to purchase a residential Flat under Holding No. 108, Ram Sita Ghat Street within the ambit of Uttarpara Kotrung Municipality measuring more or less 860 Sq.ft. for consideration of Rs. 13,00,000/- with opposite party no. 1 on 25.12.2015. The agreement for sale dt. 25.12.2015 was duly notarized and as per the agreement for sale dt. 25.12.2015 he paid the entire consideration amount of Rs. 13,00,000/- to the opposite party no. 1 and the opposite party no. 1 received the entire consideration amount of Rs. 13,00,000/- against the residential apartment more or less 860 Sq.ft. to be calculated on the basis of actual plinth area plus 22% of the same under Mouza: Bhadrakali, J.L. No. 9 comprised in R.S. Dag No. 3416 under R.S. Khaitian No. 992 corresponding to L.R. Dag No. 6385 under L. R. Khatian No. 9639, 9638, 9637, 3936, 9635, 9634, 9633, 4612/1, 4711/18 under Municipal Holding No. 108, Ram Sita Ghat Street, within the ambit of Uttarpara-Kotrung Municipality, P.O. Bhadrakali, P.S. Uttarpara, Dist. Hooghly.

The complainant also states that on 18.3.2016 it came to the knowledge of him that the agreed Flat situated under Mouza: Bhadrakali, J.L. No. 9 under Municipal Holding No. 108, Ram Sita Ghat Street, within the ambit of Uttarpara-Kotrung Municipality, P.O. Bhadrakali, P.S. Uttarpara, Dist. Hooghly, being Flat No. 1A on the 1^st Floor, towards southern side of the building measuring more or less 860 Sq.ft. has been sold by the opposite party no. 1 to Somnath Ghosh and Tapati Ghosh of Kalna Road, Ram Krishna Pally (Utsav Decortor), P.O., P.S. & Dist. Burdwan for the consideration Rs. 17,20,000/- vide Deed of Conveyance being No. 062100999 for the year 2016 under volume no. 0621-2016 Page No. 25661 to 25728 registered in Book-1 before Additional District sub-Registrar, Office of the ADSR, Uttarpara, West Bengal and after coming to know the said transaction he went to the office of the opposite party no. 1 and the opposite party no. 1 admitted the said transaction and requested him to take another Flat Being Flat No. 201, covering entire 2^nd Floor under Municipal Holding No. 82/8, Ram Lal Dutta Road, under P.S. Uttarpara, dist. Hooghly for the consideration of Rs. 15,00,000/ and also entered into an agreement dt. 16.1.2018. It was written in the said agreement:

1. Rs. 10,00,000/- out of the total consideration money had already paid before execution of this present agreement on 25.12.2015 vide cheque no. 000023 dt. 25.12.2015 drawn on Bank of Baroda, Uttarpara Branch.
2. Rs. 5,00,000/- i.e. balance amount out of the total consideration amount shall be paid within 6 months from the date of execution of this present agreement and/or at the time of Registration of the concerned Flat, whichever is earlier.

The complainant also states that thereafter as per the terms of the agreement dt. 16.1.2018 he paid Rs. 1,00,000/- to the opposite party no. 1. and the opposite party no. 1 issued money receipt acknowledging the said payment and it was agreed that the opposite party nos. 1 and 2 would hand over the said residential apartment situated at 82/8, Ram Lal Dutta Road, within the ambit of Uttarpara-Kotrung Municipality under P.O. Bhadrakali, P.S. Uttarpara, Dist. Hooghly being Flat No. 201 covering entire 2^nd Floor of the above mentioned building within 6 months or earlier from the date of execution of the agreement dt. 16.1.2018 and it has come further to his notice that the Flat being No. 201, situated at 82/8, Ram Lal Dutta Road under P.S. Uttarpara, within the jurisdiction of this Court, has been handed over to Mr. Pintu Das by entering into an agreement for sale by opposite party no. 1 with the help of opposite party no. 2 and after coming to know the same he went to 82/8, Ram Lal Dutta Road on 24.7.2018 and found that the above mentioned Flat being Flat No. 201, 82/8, Ram Lal Dutta Road, handed over to one Mr. Pintu Das by the opposite parties.

The complainant also states that thereafter on the same date on 24.7.2018 he approached I.C., Uttarpara P.S. to lodge necessary complaint against the opposite parties but on being refused on 25.7.2018 he sent his written complaint to I.C., Uttarpara P.S., Commissionerate of Police, Chandanagar though Regd. Post with A/D but no action was initiated by the concerned Police officials and thereafter he approached Ld. ACJM, Serampore U/s 156(3) Cr.P.C. to treat his complaint as F.I.R and on the basis of the direction passed by the Ld. ACJM, Serampore, Uttarpara P.S. Case No. 579/18 dt. 31.7.2018 U/s 420/406 IPC was started against opposite party no. 1 and the opposite party no. 1 was also arrested by the police and it is clear from the conduct of the opposite parties that they have cheated him and the opposite parties have also violated their own agreement.

The complainant also states that unless your Honour be pleased to pass an order of registration of Deed of Conveyance or refund the deposited money of Rs. 11,00,000/- with 12% compound interest and damage of Rs. 2,00,000/-, he will suffer irreparable loss and injury and the cause of action the present case has arose on 24.7.2018 when he came to know that the agreed Flat being no. 201, situated at 82/8, Ram Lal Dutta Road, under P.S. Uttarpara, Dist. Hooghly within the jurisdiction of this Ld. Court has been handed over to another person.

Complainant filed the complaint petition praying direction upon the opposite party to register the Flat being no. 201, situated at 82/8, Ram Lal Dutta Road, under P.S. Uttarpara, dist. Hooghly and to give possession of the said flat forthwith and to pay Rs. 2,00,000/- for harassment and damages and to pay Rs. 11,00,000/- along with 12% compound interest and to pass any order as the Forum may deem fit and proper for the ends of justice.  

Issues/points for consideration

1. Whether the complainant is the consumer of the opposite party or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite party?
4. Whether the complainant is entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken together for easiness of the discussions of this case.

1. In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant here in is a consumer of the opposite party as the complainant entered into an agreement to purchase a residential flat measuring more or less 860 Sq. Ft. for consideration of Rs. 13,00,000/- with opposite party no. 1 on 25.12.2015. The entire consideration amount of Rs. 13,00,000/- has been paid by the complainant to the opposite party no. 1. So, the complainant is the consumer of opposite party no. 1.
2. Both the complainant and the opposite party are residence/having their office addresses within the district of Hooghly. For mental agony and other expenses which is within Rs. 20,000,00/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3. The complainant states and alleged that the complainant entered into an agreement to purchase a registered Flat measuring more or less 860 Sq. Ft. for consideration of Rs. 13,00,000/- with opposite party no. 1 on 25.12.2015 was duly notarized and as the agreement for sale the complainant paid entire consideration for the flat situated at 108 Ram Sita Ghat Street P.S. Uttarpara Dist. Hooghly under R.S. Khatian No. 992, corresponding to L.R. Dag No. 6385 under L.R. Khatian No. 9639, 9638, 9637, 3936, 9635, 9634, 9633, 4612/1, 4711/18. The disputes cropped up when the complainant came to know and alleged that on 18.3.2016 the flat in question has been sold by the opposite party no. 1 to one Somnath Ghosh and Tapati  Ghosh for the consideration of Rs. 17,20,000/- vide deed of conveyance being no. 062100999 for the year 2016 under volumn no. 0621-2018 page no. 25661 – 25728 registered in Book 1 before Additional District Sub Registrar Office of the ADSA Uttarpara and the complainant came to the office of the opposite party no. 1 and the opposite party no. 1 admitted the said transaction and requested the complainant to take another flat.

The complainants state and argued that despite receiving notice the opposite party nos. 1 and 2 did not turn up and failed to file written version on the date fix. So, proceeding runs ex parte against the opposite party nos. 1 and 2.

It is hold that the complainant has been proved deficiency of service against the opposite parties. In this connection to prove the case some Xerox copy of documents have been filed by the complainants. Such as

1. evidence on affidavit,
2. Xerox copies of deed of conveyance, v…3883/18, dt. 15.11.2018,
3. Xerox copy of agreement between petitioner and opposite parties,
4. Xerox copy of deed of conveyance deed no. I-919/16,
5. Xerox copy of payment voucher of Rs. 1,00,000/-,
6. Xerox copy of registration of FIR with original,
7. Xerox copy of first information report,
8. Xerox copy of payment voucher of Rs. 13,00,000/- with Xerox copy of cheque amount of Rs. 10,000,00.

From the above documents it transpires that in this case despite receiving summons the opposite parties did not appear to challenge the case of the complainant as alleged. The uncontested and unchallenged testimonies of the complainant proves the case of the complainant. Thus, the case succeeds ex parte and as the complainant does get the relief as prayed for. There is nothing to disbelieve the complaint of complainant.

Hence

it is,

ordered

that

the complaint case be and the same is allowed ex parte against the opposite parties.
            The opposite parties are directed to execute the deed of conveyance being Flat No. 201, situated at 82/B Ram Lal Dutta Road under P.S. Uttarpara Dist. Hooghly and to give possession of the said flat in favour of the complainants or to refund the deposited money of Rs. 11,00,000/- along with 12% to the complainant. The opposite parties are further directed to pay Rs. 5,000/- for mental pain and agony and harassment to the complainant. All the payments are made within 45 days from the date of this order. At the event of failure to comply with the order opposite parties shall pay Rs. 50/- for each day delay, it caused on expiry of 45 delay by depositing the amount in the Consumer Legal Aid Account.