DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
North 24 Pgs., BARASAT
C.C. No./253/2022
PRESENT :- Shri Daman Prosad Biswas……..President.
:- Shri Abhijit Basu…………Member.
Date of Disposal:- 05.01.2024
JUDGMENT /FINAL ORDER
Complainant above named filed this complaint against the aforesaid Opposite Parties U/s 35 of the Consumer Protection Act, 2019 praying for direction to the O.Ps to execute registered deed of sale in respect of ‘B’ and ‘C’ scheduled property in favour of the Complainant, compensation amounting to Rs. 4,00,000/-, cost of the case amounting to Rs. 1,00,000/- and other reliefs.
They alleged that O.Ps approached the Complainants for selling of flat in respect of a project namely PRINCE TOWN PLATINUM and Complainants accepted the same. Consideration amount was fixed to Rs. 20,59,660/-. Out of the said amount Complainants have paid some amount. Complainants on several times requested the Opposite Parties for delivery of those flats but no constructions was made over the aforesaid land. Complainants sent one e-mail on 17/06/2019. O.Ps gave a reply and apologized and they had committed to provide positive support but did not do any positive action. Complainants again on 28/03/2022 sent another e-mail. But did not get any fruitful result. Hence, this complaint.
On perusal of record we find O.P No. 1 and 2 appeared in this record and filed W/V on 20/10/2022. They denied the entire allegations and further contended that in the agreement it has been specifically mentioned that if any dispute arises between the parties at first he has to move before the sole arbitrator for adjudication of the dispute but Complainant failed to do so. He prayed for dismissal of the case.
TRIAL
During Trial Complainant filed affidavit-in-chief as O.Ps are not taking any steps since 16/02/2023, so no questionnaires were filed on behalf of the O.Ps. Even O.Ps did not file any evidence.
DOCUMENTS
Complainants filed copy of the following documents:-
- Copy of agreement for sale dated 17/10/2017…1set..xerox.
BNA
Complainants filed BNA.
Decisions with Reasons:-
We have heard the Ld. Advocate for the Complainant. Perused the petition of complaint, affidavit-in-chief and documents filed by the Complainants. Original copy of aforesaid document was produced at the time of hearing argument and it was returned to the Ld. Advocate for the Complainant.
Contd. To Page No. 2 . . . . /
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C.C. No./253/2022
O.P No. 1 and 2 in their W/V alleged that there is arbitration clause in the agreement for sale but Complainants did not comply the same. They did not sent the matter before the arbitrator and without complying the same they filed this case before this Commission.
In this context we have carefully gone through the decision of Hon’ble N.C.D.R.C reported in 2017 4 CPR (NC) 593 we find that Hon’ble N.C.D.R.C held that if proceeding is pending before the arbitrator then party of the proceeding is not authorized to proceed before the Consumer Commission. But in the present case dispute between the parties are not pending before any arbitrator.
During hearing Ld. Advocate for the Complainants submitted that two agreement for sale were executed. One deed was executed in favour of Complainant No. 1 and 3. He has filed copy of the same. He further argued that another agreement for sale was executed in favour of Complainant No. 2 and 3. On perusal of record we find that copy of the said deed not yet filed at the time of filing of this case and said fact was brought to the notice of Complainant during hearing of argument and he assured that after completion of argument he will file the Xerox copy of the agreement for sale which was executed in favour of the Complainant No. 2 and 3. But at the end of the day no such document was filed by the Ld. Advocate for the Complainant.
On perusal of the agreement for sale dated 17/10/2017 we find that said document has been executed in favour of Complainant No. 1 and 3. In page no. 17 of the said document description of the flat has mentioned. In page no. 19 period of construction has made as 40 months. Complainant No. 1 filed affidavit-in-chief in support of their contentions. Said affidavit-in-chief is nothing but unchallenged testimony and we do not find any reason to disbelieve the same.
Placing reliance upon the said affidavit-in-chief as well as documents on record we find that said agreement for sale has executed in favour of the Complainant No. 1 and 3.
It has mentioned that price of the said flat is 10,29,830/-. Complainant did not file any money receipt in support of the amount which has been paid in favour of the O.Ps.
Having regard to the aforesaid discussion it is clear before us that Complainants have failed to established their grievance by sufficient documents beyond reasonable doubt.
Accordingly, they are not entitled to relief as per their prayer.
In the result, present case fails.
Hence,
It is Ordered:-
That the present case be and the same is dismissed on contest but without any order as to costs.
Let a copy of this final order be supplied to both the parties as per CPR, 2005.
Dictated & Corrected by me
President
Member President
