IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD , AT BERHAMPORE.
CASE No. CC No. 177/2014.
Date of Filing: Date of Admission : Date of Disposal:
18.12.2014 20.02.2015 11.09.2018
Rajat Lal Biswas
S/O Late Harendra Nath Biswas of
59 Daihatta Road, P.O. Khagra
P.S. Berhampore,
Dist. - Murshidabad …………… Complainant.
-vs-
- Nishit Kumar Mondal
S/O Late Nityananda Mondal
Residing at Vill. Kesabnagar,
P.O. Cossimbazar Raj, P.S. Berhampore,
Dist-Murshidabad,
The Prorpietor of Mondal Construction
25/A Dunabandhu Sanyal Lane,
P.O. Khagra, P.S. Berhampore,
Dist. Murshidabad.
- Iralata Mondal
W/O Nishith Kumar Mondal
residing at Vill- Kesab Nagar, P.O. Cossimbazar Raj,
P.S. Berhampore, Dist- Murshidabad
Pin -742102.
Cont. ……….…. 2
= 2 =
The Proprietor Mondal Construction
25/A, Dinabandhy Sanyal Lane,
P.O. Khagra, P.S. Berhampore,
Dist. Murshidabad,Pin-742103.
-
S/O Nirmal Kumar Saha,
residing at Shakti Nagar, ……........ Opposite Parties.
Sri Sambarta Mukherjee, Advocate ……… for Complainant
Sri Surojit Banerjee, Advocate ……… for Opposite Party No.1 & 3
Sri Surojit Banerjee, Advocate ……… for Opposite Party No.2
Present : Sri Asish Kumar Senapati …………. President.
Smt. Chandrima Chakraborty …..…. Member.
J U D G M E N T
Chandrima Chakraborty, Member.
Shorn of unnecessary details, the case present before the Forum for adjudication may be summarized thus :-
Cont. ……….…. 3
= 3 =
In succinct, the fact stated in the complaint, is that, the Complainant had booked a self contained flat for purchase, measuring an area of 750 sq. ft. approx on the 3rd floor in a multistoried building, @ Rs. 1,700/- only per sq. ft. Accordingly, the complainant had paid a sum of Rs. 4,50,000/- only by cash on 20.10.2013 to the Opposite Party as advance out of the total consideration amount and the Opposite Party had issued a ‘Money Receipt’ in favour of the Complainant acknowledging the said payment. At the time of receiving the advance payment the Opposite Party assured the Complainant to deliver the actual possession of the said flat in question within one year from the date of receipt of such advance payment but long after expiry of one year the Opposite Party not yet constructed the 2nd and 3rd floor at all of the said proposed multistoried building.
Thereafter the Complainant severally requested the Opposite Parties for delivery of possession of the said flat in question and for execution and registration of the same and did not pay any heed to it rather refused to do the same for which the Complainant sent a legal notice on 18.08.2014 towards the Opposite Parties but the Opposite Parties remained silent, what amounts to negligence and deficiency in rendering service on the part of the Opposite Parties towards the Complainant for which being victimized and harassed the Complainant has to file the instant case seeking adequate redressal against the Opposite Parties either to deliver the actual possession of the said flat in question or to refund of the said paid advance amount @ present Banking interest along with compensation and litigation cost.
Cont. ……….…. 4
= 4 =
Resisting the complaint, the Opposite Party No. 1 & 3 have filed the Written Version which was adopted by the Opposite Party No. 2 later on denying the contentions and all material allegations made by the complainant in the petition of complaint and stating inter alia, that the complainant has no cause of action, the Complainant has no locus standi to file the instant case, the case is bad for defect of parties, the case is not maintainable and is specifically barred by law of Limitation.
The specific case of the Opposite Party No. 1 , 2 and 3 in crisp, is that, the Opposite Party No. 1 and 3 (Nishith Kr. Mondal) was not connected with the firm ‘Mondal Construction’ and he was never a representation firm and in fact the Opposite Party No. 1 and 3 (Nishith Kr. Mondal) has no authority to receive the advance payment for sale of any flat.
The fact stated by the Opposite Parties in their Written version is that the Opposite Party No. 2 (Iralata Mondal) is the sole proprietor of the firm ‘Mondal Construction’ and she never authorized and/or empowered the Opposite Party No. 1 and 3 (Nishith Kr. Mondal) to look after the construction of the said building or to receive any money from any proposed buyer. Moreover no ‘Agreement for Sale’ was executed by and between the Complainant and Opposite Parties No. 1 & 3 and the Opposite Parties never assured to deliver the possession of any flat to the Complainant and as such no payment was made by the Complainant towards these Opposite Parties and the story of payment of Rs. 4,50,000/- only was a myth and concocted for purpose of this case. Thus, the Opposite Parties No. 1, 2 and 3 denied any negligence or/ and deficiency in rendering service towards the Complainant on their part. Hence, they prayed for dismissal of this case.
Cont. ……….…. 5
= 5 =
Despite service of the notice, the Opposite Party No. 4 never appeared before the Forum in person and/or through their authorized representative/Ld. Advocate to contest the case by filing Written Version and so the instant case has been heard ex-parte against the Opposite Party No. 4.
Points for Determination
- Is the complaint maintainable under the C. P. Act ?
2. Was there any negligence or deficiency in service
on the part of the O.Ps ?
3. Is the complainant entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for the sake of convenience and brevity.
The main dispute what is to be decided by the Forum is that, whether the Opposite Parties were negligent by not delivering the actual possession of the said flat in question or for not refunding the paid advance money in favour of the Complainant, in respect of the said flat in question or not.
The main allegations of the Complainant against the Opposite Parties are that, after payment of advance consideration amount, the Opposite Parties deliberately failed to deliver the actual possession of the said flat in question in favour of the complainant and also refused to refund the said paid advanced money towards the Complainant.
Cont. ……….…. 6
= 6 =
On overall evaluation of the arguments of the Ld. Lawyers of both parties and critically perusing the material evidences on record, it is admitted that no written ‘Agreement for Sale’ was duly executed by and between the Complainant and Opposite Parties for purchasing the said flat in question.
But it is manifestly evident from the photocopies of the document (‘Money Receipt’ dated 20.10.2013) filed by the Complainant that the Complainant had paid the part consideration amount of Rs. 4,50,000/- only as advance payment to the Opposite Party No. 3 on 20.10.2013 for which the Opposite Party No. 3 had duly issued the ‘Money Receipt’ in the Letter headed pad named under the Opposite Party No. 1 the firm ‘Mondal Construction’. Therefore it is held by the Forum without any hesitation that the Complainant is a consumer under the Opposite Parties.
It is also strikingly revealed from that document (‘Money Receipt’ dated 20.10.2013) filed by the Complainant that the said Letter head pad on which the said ‘Money Receipt’ was issued and duly signed by the Opposite Party No. 3 (Nishith Kumar Mondal) is/was mentioned in that Letter head pad as the proprietor of the said firm named ‘Mondal Construction’ and there is no denial by this Opposite Party No. 1 & 3 (Nishith Kr. Mondal) that he never issued that ‘Money Receipt’ dated 20.10.2013 in favour of the Complainant and/or this Nishith Kr. Mondal did not signed that ‘Money Receipt’ dated 20.10.2013. The fact remains that no Opposite Party ever challenged the said ‘Money Receipt’ dated 20.10.2013 in their Written Version or at the time of hearing argument.
Cont. ……….…. 7
= 7 =
It is further stated in the Written Version filed by the Opposite Party No. 1 & 3 (Nishith Kr. Mondal) and adopted by the Opposite Party No. 2 (Iralata Mondal) later on that the Opposite Party No. 3 (Nishith Kr. Mondal) was not connected with the Firm ‘Mondal Construction’ and he never represented the said firm and he had no authority to receive the advance payment for sale of flat. But it is manifestly reveals from the ‘Money Receipt’ dated 20.10.2013 that the Opposite Party No. 1 & 3 (Nishith Kr. Mondal) had actually received the amount of Rs. 4,50,000/- only as advance for sale of flat situated at 3rd floor at 25/A Dinabandhu Sanyal Lane.
Moreover, in the said ‘Money Receipt’ dated 20.10.2013, it is significantly noticed that the rate of the said flat in question was written as Rs. 1700/- only per Square feet which clearly proved without any doubt that the Opposite Party No. 1 & 3 (Nishith Kr. Mondal) had received the said money of Rs. 4,50,000/- only from the Complainant for selling of the flat in a multistoried building situated at 3rd floor at 25/A Dinabandhu Sanyal Lane @ Rs. 1700/- per Square feet.
Furthermore, the fact remains that the Opposite Party No. 1 and 3 (Nishith Kr. Mondal) and the Opposite Party No. 2 (Iralata Mondal) is the husband wife and in the Written Version it is stated by the Opposite Parties that the Opposite Party No. 2 (Iralata Mondal) is the sole proprietor of the said firm ‘Mondal Construction’.
Cont. ……….…. 8
= 8 =
Thus it can be held that when the said ‘Money Receipt’ dated 20.10.2013 was issued on the Letter head pad and under the seal of/as proprietor of the ‘Mondal Construction’ by Nishith Kr. Mondal for which it is not the latches on part of the Complainant to believe that the Opposite Party No. 1 and 3 (Nishith Kr. Mondal) was the proprietor of the said firm ‘Mondal Construction’.
The fact also remains that the Complainant alleged that the 2nd and 3rd floor of the said multistoried building in question was not yet completed for which the Opposite Parties was/is not in a position to hand over the actual possession of the said agreed flat in favour of the Complainant and significantly the Opposite Parties uttered nothing in this regard in their Written Version.
So, when it is clearly proved that the Opposite Parties had actually received the advance money of Rs. 4,50,000/- only from the Complainant for selling of a flat, it is obligatory on the part of the Opposite Parties construction firm to deliver the actual possession of the said flat in issue to the Complainant or to refund the advance money of Rs. 4,50,000/- only with interest.
The opposite Parties have neither delivered and transferred the flat in question nor refunded the advanced amount with interest to the Complainant. So it can be safely held that the Opposite Parties are liable for rendering the deficiency and negligence service towards the Complainant.
Cont. ……….…. 9
= 9 =
Thus, in the light of the above observation and relying upon the aforesaid facts and circumstances, unanimously we are inclined to allow the complaint. we consider that the Opposite Party No. 1 and 3 (Nishith Kr. Mondal) and the Opposite Party No. 2 (Iralata Mondal) are still liable to refund the entire advance money of Rs. 4,50,000/- only to the Complainant which was actually received by Opposite Parties with simple interest @ 8% p.a. and the Opposite Parties No. 1 to 3 are further liable to pay the compensation for harassment and mental agony and the litigation cost in favour of the Complainant.
But it is further noticed that no specific allegation was made against the Opposite Party No. 4 and in the whole complainant the name of the Opposite Party No. 4 was not mentioned once and moreover the Complainant neither uttered that who is the Opposite Party No. 4 nor stated what relation the Opposite Party No. 4 had/has with Complainant. We find no consumer dispute between the Complainant and the Opposite Party No. 4. So, the instant case is dismissed against the Opposite Party No. 4 without any cost.
Therefore, the Forum has no hesitation to hold that, the Complainant has successfully proved his case and is entitled to get relief as prayed for and consequently the points for determination are decided in affirmative.
In short, the Complainant deserves success.
In the result, we proceed to pass
Cont. ……….…. 10
= 10 =
O R D E R
That the case be and the same is allowed on contest against the Opposite Party No. 1 and 3 (Nishith Kr. Mondal) and the Opposite Party No. 2 (Iralata Mondal) with costs of Rs. 10,000/- only payable by the Opposite Parties jointly and severally towards the Complainant within one month from the date of this ‘Order’ and dismissed ex – parte against the Opposite party No. 4 without any cost.
That the Opposite Parties, Opposite Party No. 1 and 3 (Nishith Kr. Mondal) and the Opposite Party No. 2 (Iralata Mondal) jointly and severally is directed to refund the entire received advance money of Rs. 4,50,000/- only towards the Complainant with interest of 8% p.a from the date of receiving the said amount, i.e. from 20.10.2013 till its realization within one month from the date of this ‘Order’.
That the Opposite Parties, Opposite Party No. 1 and 3 (Nishith Kr. Mondal) and the Opposite Party No. 2 (Iralata Mondal) jointly and severally are further directed to pay a sum of Rs. 50,000/- only to the Complainant as compensation for harassment and mental agony within one month from the date of this ‘Order’.
Cont. ……….…. 11
= 11 =
In the event of non compliance of any portion of the order by any of the Opposite Parties within a period of one month from the date of this ‘Order’, the defaulting Opposite Party shall have to pay a sum of Rs. 200/- per day, till its realization, as punitive damage, which amount shall be deposited by the O.Ps in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
MEMBER PRESIDENT
