Judgment : Dt.18.4.2017
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under Section 12 of C.P.Act by Smt. Sathi Shome (Mahapatra) alleging deficiency in service on the part of (1) M/s M. M. Enterprise, a partnership firm, (2) Sri Moloy Dutta, (3) Sri Mantu Roy, (4) Sri Nibhu Narayan Ghosh, (5) Sri Bishnupada Ghosh, (6) Sri Krishnapada Ghosh, (7) Smt. Jolly Ghosh, (8) Smt. Sumi Das, (9) Smt. Bulbul Ghosh and (10) Sri Abhijit Ghosh.
Case of the Complainant in brief is that the complainant entered into an agreement for sale dt.4.8.2014 with the land-owners (OP Nos.4-10 herein) and the developers (OP Nos.1- 3 herein) in respect of a flat to be constructed on the 1st floor of a proposed building at KMC premises No.51, Hind Road having postal address 58, Hind Road, P.S.-Kasba, thereafter Purba Jadavpur and now Survey Park, Kolkata-700 075, with the Municipal Ward No.104, including undivided proportionate share of land and other facilities at a consideration of Rs.19,00,000/- only out of which she has already made payment of Rs.18,00,000/- only by cash on the date of execution of the said agreement for sale against which the developers issued a money receipt dt.4.8.2014 as part consideration of the said flat. The Complainant has stated that it was decided by the parties that the balance amount of Rs.1,00,000/- would be paid to the developer at the time of delivery of possession of the said flat or on registration of the said flat which ever would be earlier. It is also stated by the Complainant as per terms of the agreement the developers were to have completed the construction of the said flat in all respect within twelve months from the date of execution of the same but after lapse of a considerable spell of time the developers did not start the construction work though the Complainant requested them on several occasions to expedite the matter so that the said flat might be handed over to her on receiving the balance amount of Rs.1,00,000/- but to no effect. The Complainant having no other alternative sent a notice through her Ld. Advocate on 15.6.2016 to all the OPs but in spite of that the OPs neither handed over peaceful possession of the said flat nor did return the consideration amount to the Complainant which she paid to them. However, receiving the said legal notice dt.15.6.2016 one of the partners of the OP developer firm Sree Moloy Dutta (OP No.2 herein) gave a reply through his Ld. Advocate denying the legal liability of them on baseless ground. Accordingly, the Complainant has prayed for direction upon the OP Nos.1-10 to execute and register the deed of conveyance in respect f the flat in question in favour of the Complainant alternatively, to refund the earnest money of Rs.18,00,000/- only with interest accrued thereon till realization thereof and to pay towards cost for mental agony and harassment. Notices were served but OP No.4-9 did not appear. So, the case was heard ex-parte against them vide order No.11 dt.25.11.2016. The OP Nos.2& 3 i.e. the partners of OP No.1 appeared and contested the case and filed written version denying and disputing all material allegations stating, inter alia, that one Sri Sanjoy Shome, son of Sri Amar Ch. Shome was an erstwhile partner of the OP No.1 firm who was drove out from the said partnership for his wrongful act. The Complainant appeared to be sister of the said Sanjoy Shome and she has been married to one Santa Sagar Mahapatra. The OP developers has further stated that the huge amount of Rs.18,00,000/- paid by the Complainant by cash, as the same is affirmed by oath by the Complainant is also a matter of suspicion. The OP developers further stated that the said Sanjoy Shome financed the developers Rs.12,00,000/- only for their project and taken away substantial amount from the OP developers and also acknowledged the same by his own hand writing. It is further stated by the developers that the said Sanjoy Shome convinced the land-owners for cancellation of the power of attorney executed in the favour of developers and the land-owners acted accordingly for which it became impossible for the developers to proceed with the project though they have no latches on their part and, therefore, question of handing over of the flat or execution and registration of the deed of conveyance, alternatively to refund the allegedly advanced money does not arise at all. The OP developers specifically mentioned that in April, 2015 the said Sanjoy Shome abducted the OP No.2 with some miscreants and forcefully taken signature of him on several papers and in receipt book for which the OP No.2 lodged F.I.R. with the Jadavpur P.S. and the said case is pending. The developers further mentioned specifically that since the said Sanjoy Shome lent money to the OP No.1 developer firm and executed the agreement for sale as to security of the said loan, but, subsequently he had taken back the said invested money without cancelling the said agreement for sale. Accordingly, the OPs have prayed for dismissal of the petition of complaint.
Parties adduced evidence on affidavit followed by cross-examination in form of questionnaire and reply.
In course of argument Ld. Advocate for the Complainant has narrated the case as stated in the petition of complaint.
Ld. Advocate for OP No.1-3 has submitted that source of income of the Complainants has not been disclosed. But, on query, the Complainant replied that she is not a tax assessee and moreover, when the alleged agreement for sale was executed the occupation of the Complainant was described as student and, therefore, it is surprising enough wherefrom she has got such hefty amount of Rs.18,00,000/- so that she paid the said amount by cash.
In reply Ld. Advocate for the Complainant has submitted that her parents, she herself obtained loan from various sources and thus accumulated the said amount.
Points for determination
Is the Complainant a consumer under the OP?
Is there any deficiency on the part of the OP?
Is the Complainant entitled to get relief as prayed for?
Decision with reasons
All points are taken up together for the same of comprehensive discussion.
Having heard submission made by the contesting parties, it appears that the moot point is the source of accumulation/payment of the hefty amount of Rs.18,00,000/- by cash since it is pivotal point of adjudication of the instant case as well as to answer the issues framed.
On perusal of the Photostat copy of the alleged agreement for sale dt.4.8.2014, it appears that the intending purchaser Sathi Shome by profession was a student. It further appears from the said documents that an amount of Rs.18,00,000/- for the Complainant has submitted that sources of the said amount are various loans as well as remuneration earned by the Complainant herself. In support of such contention Photostat copies of some loan documents have been furnished. On perusal of the said documents, it appears that by summing up all loan amounts the figure has become meagre one. Further, in course of cross-examination, the Complainant has replied that she is not a tax assessee. Moreover, it is very much evident from the Photostat copy of agreement dt.4.8.2014 that the Complainant revealed her status as a student. Considering all the points/ state of affairs much space is left for doubt regarding the alleged payment of Rs.18,00,000/- since the Complainant failed to satisfy us regarding source of these accounts. It is really unbelievable that a student keeping with her such a hefty amount of Rs.18,00,000/- in cash.
In such view of the matter we dismissed the case.
Hence,
ordered
That CC/326/2016 is dismissed on contest against OP Nos.1-3 and ex-parte against OP No.4 to 10.
