The complainant filed this case U/s 12 of the Consumer Protection Act, 1986 with the prayer for an order directing the O.Ps. to give registration and handover the possession of the flat of the petitioner, compensation of Rs.1,00,000/- for harassment and deficiency in service and Rs.15,000/- as litigation cost.

In short the case of the complainant is that the complainant is a young boy of 20 years residing at Raiganj. The O.Ps. are owner/ developer of apartment namely M/s Trinath Construction at Karnajora, Raiganj, Uttar Dinajpur. Complainant intended to purchase a flat 790 sqft. on 2nd floor S/E of the apartment and paid booking amount of Rs.8,00,000/- on 22.04.2013. Thereafter on the same date entered into an agreement, which was notarized at Raiganj before Notary. As per the agreement O.Ps. have to complete construction of the building and handover the possession of the flat to the petitioner within 18 months from booking. But O.P. did not obey the terms and conditions of the agreement and did not handover the possession in spite of repeated demand by the petitioner. As the O.Ps. failed to abide by the terms and conditions of the agreement executed on 22.04.2013, then on 22.10.2014 petitioner went to the O.Ps. to get registration and possession. O.Ps. did not take any initiative therefore cause of action arose on and from 22.10.2014 and continued day by day, it causes mental pain and agony due to deficiency and negligence of service of O.Ps., therefore the petitioner filed this case with the above mentioned prayer.  

As the O.Ps. failed to appear and contest this case in spite of receiving notice of this case, the case is heard ex-parte.

DECISIONS WITH REASONS

An authorization letter dated 20.07.2015 was filed by the complainant to conduct the case by one Supriti Pal (Saha), sister-in-law of the complainant. Said Supriti Pal (Saha) filed affidavit on examination-in-chief and deposed as P.W.1 in this case. She stated the fact of this case on her examination-in-chief that Goutam Saha, the complainant, paid Rs.8,00,000/- on 22.04.2013 to the O.Ps. for booking of a flat and an agreement was also executed before Notary at Raiganj on the same date. The same agreement was filed at the time of hearing but there is no scrap of paper, receipt etc. showing any payment of Rs.8,00,000/- to the O.Ps. Even there is no mention whether the said amount was paid in cash or by cheque through Bank etc. Moreover in the said agreement in its four corner there is no aversion that actually on 22.04.2013 there was any transaction of Rs.8,00,000/- between the parties to agreement.

Para - 7 of the said agreement goes to show that the complainant as “2nd party agrees to purchase a flat at the 2nd Flat S/E at the proposed building at a total price of Rs.8,00,000/-” and as per Para - 7(a), “the mode of payment by the purchaser herein complainant, to the developer will be at the time of booking Rs.8,00,000/- and before date of possession the purchaser shall pay all amounts becoming due to the developer”. There is no whisper in this document that actually on 22.04.2013 complainant paid Rs.8,00,000/- to the O.Ps.

Moreover, a lawyer’s letter, dated 22.10.2014 asking the O.Ps. to handover the possession of the flat within 15 days was filed in this case on 04.03.2015 by firisti. Actually in the complaint petition as well as in the affidavit on examination-in-chief there is no aversion of this Lawyer’s Notice sent by the complainant and received by the O.P. In that Advocate’s letter it is only mentioned that complainant booked a flat and after receiving the full amount, the agreement was executed. There is no mention how and when the payment was made. Moreover, O.Ps. never appeared to contest this case in spite of receiving notice, making it difficult to this Forum to find that there was actually any payment of Rs.8,00,000/- on 22.04.2013 by complainant to the O.Ps. for purchasing the above mentioned flat.

Therefore we come to the conclusion that the complainant failed to prove by sufficient evidence, oral and documentary to prove ex-parte that there was any actual transaction of Rs.8,00,000/- between the parties. Complainant therefore failed to prove that there was any relationship of consumer and service provider between the parties. Therefore the question of negligence and harassment and deficiency in service does not arise. Therefore, the case of the complainant fails.

Fees paid is correct.

Hence, it is

ORDERED,

That the complaint case being No.13/2015, heard ex-parte is dismissed  without any cost.

Copy of this order be supplied to each parties free of cost.