DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 220_ OF ___2015
DATE OF FILING : 11.5.2015 DATE OF PASSING JUDGEMENT: 15.01.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Gitasree Roy,w/o late Biswaranjan Roy.
- Ronny Roy
- Bony Roy
Both sons of late Biswaranjan Roy and all of Harinavi, 19, Sanyal Para Road, P.S Sonarpur, Kolkata – 148.
-VERSUS -
O.P/O.Ps : Parimal Kanti Roy, son of Sri Kishori Mohan Roy of 65, Bikramgarh, P.S Jadavpur, Kolkata – 700032.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
This is a complaint filed under section 12 of the C.P Act, 1986 by the complainant as aforesaid ,claiming return of the money paid to the O.P i.e the developer due to his inability to fulfill the terms of the agreement.
The facts leading to the filing of the instant case may be epitomized as follows .
One Biswaranjan Roy , the predecessor of the present complainants filed the instant complaint. Thereafter, he died and the present complainants have been substituted in his place. The original complainant entered into an agreement for sale on 6.1.2010 with he O.P, developer for purchasing a flat described in the schedule to the complaint for Rs.5,50,000/- . The O.P agreed to deliver the khas possession of the flat and to execute and register the sale deed in favour of the original complainant within three months of the execution of the agreement. The original complainant also paid Rs.4,50,000/- to the developer on different dates. Thereafter one fine morning the original complainant came to discover from a Newspaper report published in Telegraph dated 14.2.2010 that the scheduled flat would be sold in auction by a Bank. Having come to know about this fact the original complainant started demanding refund of consideration price paid to the O.P developer. The O.P developer also refunded Rs.3,20,000/- out of Rs.4,50,000/- as paid to him by the complainant and it took about more than five years to make such return to the original complainant by the developer. Now, it is about Rs.1,30,500/- which is falling due to the present complainants from the developer. Therefore, the complaint was filed by the original complainant, praying for passing an order directing the O.P to refund Rs.1,30,500/- with interest @18% p.a on total advance of Rs.4,50,000/ since January 2010 till full realization thereof and to pay Rs.25000/- as litigation cost and Rs.8,50,000/- as compensation for unfair trade practice and deficiency in service.
Hence, this case.
The O.P i.e the developer has been contesting the case by filing written statement ,wherein it is contended inter alia that the complaint is not maintainable in Law , there is no cause of action for the complaint and that the Ld. Forum has no jurisdiction to entertain the complaint. The positive case as made out in the written statement is that the complainant failed to honour the terms of the agreement , that he opted for getting back the earnest money paid by him to the developer, that the consideration price of the flat was Rs.6,50,500/- and that the complainant has filed the case with a view to harassing and blackmailing the O.P. So according to him, the complaint should be dismissed in limini with cost.
Upon the averments of the parties following issues are framed for consideration .
ISSUES
- Are the complainants consumers of the O.P, developer?
- Are the complainants entitled to get relief or reliefs as prayed for ?
Evidence of the parties :
The complainants have filed affidavit in chief along with documents which are kept in the record. Similarly, the O.P has also filed affidavit-in-chief, which is kept in the record.
DECISION WITH REASONS
Issue no.1:-
It is the case of the complainant that original complainant i.e Biswaranjan Roy entered into a sale agreement with the O.P for purchasing a flat for a consideration of Rs.5,50,000/-on 6.1.2010. A photocopy of the said agreement is also filed herein and on perusal of the same it is found that the sale agreement was executed between the original complainant and the O.P. A further perusal of the sale agreement reveals that the O.P entered into the agreement with the original complainant for developing a land and for construction of a flat and thereafter for selling the same to the original complainant. All these facts have not been denied by the O.P in the written statement filed by him. Regards being had to these facts and circumstances of the case, it appears that the complainants are undoubtedly consumers vis a vis the O.P , developer and ,therefore, the instant case appears to be quite maintainable in law and in its present form.
Hence, this issue is answered in favour of the complainants.
Issue no.2:
The execution of the sale agreement has not been denied by the O.P , developer. Booking of flat by the original complainant is not also denied by the developer. Payments made by the original complainant to the developer are not also disputed. It also stands established from the paper cutting produced by the complainant and kept in the record that the scheduled flat was advertised by the Bank for sale in auction.
Regards being had to all these, it is found that the original complainant was quite justified in demanding refund of the consideration price paid to the developer on different dates. It is also the case of the complainants that the developer has refunded Rs.4,50,000/- on different dates extending over a span of five years and that they are entitled to Rs.1,30,500/- only from the O.P developer. A perusal of the agreement dated7.1.2010 and also the money receipts filed by the complainants it is found that the complainants actually paid Rs.4,50,000/- to the developer. The rest amounts i.e Rs.1,30,500/-has not been returned by the developer to the complainants and ,therefore, present complainants are deemed entitled to get back that amount of money i.e Rs.1,30,500/- from the O.P, developer.
That apart, the complainants are also entitled to damage for the reasons that they would be required to pay escalated price for any flat they want to purchase for their accommodation. In addition to this, original complainant and thereafter the present complainants have also undergone a tremendous mental agony ,harassment due to the developer who has not been able to deliver the flat to the complainants and who has made an attempt to practice fraud upon the complainants. The complainants have also prayed for compensation for the reason that they have been compelled to pay a fabulous sums of money as rent for accommodation for failure of the landlord to complete the building within the stipulated period as agreed upon. They have claimed a sum of Rs.1,75,000/- as damage for rent paid by them @2500/- per month form the period from April 2010 to January 2016. It is to be seen now whether the complainants are entitled to get the aforesaid amount as compensation for rent paid by them. It is well settled principle of Law that a claim of a person can be allowed only when such claim is established by cogent evidence. Mere averment in this regard appears to be of no help to the consumers. Mere pleading in this regard will not be able to bring the desired dividend to the complainants. In the instant case the complainants have not been able to produce any evidence of the owner whose house was taken in rent by the complainants and in absence of such vital evidence we feel constrained to hold that there is no evidence to establish the complainants’ ‘claim for damage for the rent paid by them.
Hence, this point is also answered in favour of the complainants in the long run.
In the result the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against the O.P, developer with cost which is quantified to be Rs.10,000/-.
The O.P ,developer is directed to make payment of Rs.1,30,500/- to the complainants and also to pay interest @12% p.a thereon from the last date of payment by the complainants i.e 23.2.2010 to the date of full realization of the amounts and also to pay a sum of Rs.2 lac (two lac)as damage to mitigate the cost of price escalation in case of purchasing of a new flat by the complainants and also to pay Rs.1 Lac (one lac) as compensation for mental agony and harassment suffered by the complainant as well as present complainants due to fraudulent act of the O.P.
The O.P is also directed to pay litigation cost of Rs.10,000/- as mentioned above along with all the payments mentioned above within a month of this order ,failing which the compensation amount and damage amount will bear interest @12% p.a till the realization thereof.
Let a free copy of this order be given to the parties concerned at once.
Dictated and corrected by me
President
We / I agree.
Member Member
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
ORDERED
That the complaint case be and the same is allowed on contest against the O.P, developer with cost which is quantified to be Rs.10,000/-.
The O.P ,developer is directed to make payment of Rs.1,30,500/- to the complainants and also to pay interest @12% p.a thereon from the last date of payment by the complainants i.e 23.2.2010 to the date of full realization of the amounts and also to pay a sum of Rs.2 lac (two lac)as damage to mitigate the cost of price escalation in case of purchasing of a new flat by the complainants and also to pay Rs.1 Lac (one lac) as compensation for mental agony and harassment suffered by the complainant as well as present complainants due to fraudulent act of the O.P.
The O.P is also directed to pay litigation cost of Rs.10,000/- as mentioned above along with all the payments mentioned above within a month of this order ,failing which the compensation amount and damage amount will bear interest @12% p.a till the realization thereof.
Let a free copy of this order be given to the parties concerned at once.
Member Member President
