JUDGMENT 

The instant case was instituted on the basis of a petition of complaint filed by one Swapan Kumar Paul and Smt. Sima Paul both of them resident of Mokdumpur P.O. & Dist. – Malda u/s. 12 of the Consumer Protection Act, 1986  and the said petition was registered before this Forum as Consumer Case No. 50/2016.

The fact of the case as revealed from the petition of complaint as well as from the evidence is that the O.P. No.1 has a partnership firm having its office situated at R.K. Mission Road under the P.S. English Bazar, Dist. Malda and the said partnership firm having its office situated at R.K. Mission Road under the P.S. English Bazar, Dist. – Malda and the said partnership firm is in registration under the Partnership Act. The O.P. No.2 to 5 are the bonafide partners / promoters / developers of M/s. Kiran Enterprise of R.K. Mission Road Malda which is situated within the jurisdiction of this Forum.

The complainant Nos.1 & 2 jointly desired to purchase a readymade flat measuring 1400 sq ft. in the ground floor of the said building. The complainant on 20/11/2011 made contact with an aged gentleman who showed and told himself as a bonafide  partner / promoter or developer of M/s. Kiran Enterprise and that gentleman told his name as Pratip Kr. Jha.

On discussion with him regarding the flat matter the complainant No.1 came to know that there are other main partners who are O.P. Nos. 2 to 4 and O.P. -6 is the landlord of the saidscheduled property as well as copartner of this firm.  At that time PratipBabu also disclosed himself as the money receiver. On 25/11/2011 the complainant paid Rs. 6,00,000/- (Rupees Six Lakhs Only) and then Rs. 60,000/- ( Rupees Sixty Thousand Only) and Rs. 5,40,000/- (Rupees Five Lakh Forty Thousand Only) on 06/12/2012. The total amount was paid to Mr. Pratip Kr. Jhanear about 12,00,000/-  lakhs (Rupees Twelve Lakhs Only) in cash and cheques.  The O.P. No. 5 PratipBabu issued three money receipts mentioning the amount dt. 25/11/2011, 12/02/2011 and 06/12/2012 for and on behalf of M/s. Kiran Enterprise R K Main Road, Malda putting full signature on the money receipt.

 It is to be mentioned that no revenue stamp was affixed in the money receipt on different dates.  On 25/09/2012 the written agreement / article of agreement was executed in a non-judicial stamp paper of Rs. 20/- (Rupees Twenty Only)containing 11 (eleven) pages between the three partners O.P. Nos. 2 to 4.

 On perusal of such written agreement it is found that the complainant having booked proposed one Flat No. 3/1 in ground floor, South East side of the multistoried building situated at Abhirampur R.K. Mission Road.

  It has been stated that the total price will be Rs. 22,75,000/- (Rupees Twenty Lakhs Seventy Five Thousand @ Rs. 1625/- per sq. ft. It is to be mentioned that Pratip Kumar Jha signed as an witness in the said written agreement.

 The complainant paid their entire amount for purchasing of the said flat amounting to Rs. 23,05,000/- ( Rupees Twenty Three Lakhs Five Thousand Only).

 In the agreement it was mentioned that by 25/09/2014 the completed flat will be handed over. The Complainant No.1 went to O.P. No.5 on 25/09/2014 to know about the fact of the proposed flat but at that time the answer given by the O.P. No.5 was not fruitful from side. Thereafter, the complainant returned back from the office of M/s. Kiran Enterprise but ultimately the flat was not handed over to them. In spite of receiving 12,00,000/- (Rupees Twelve Lakhs Only) out of the total amount of Rs. 23,05,000/- (Rupees Twenty Three Lakhs Five Thousand Only).

 The complainant gave a legal notice to the O.Ps. Ultimately, there was no fruitful result. As such the complainant has come this Forum to get relief as prayed for.

 In the written version the O.P. Nos 1 2 and 3 has denied all the material allegations contending inter alia that the instant case is not maintainable in law. The case is barred by law of limitation, the case is not covered under the provision of a Consumer Protection Act, 1986. The case is also barred by the territorial jurisdiction of this Forum and this Forum has got no pecuniary jurisdiction to try the case. The case is also bad for miss-joinder and non-joinder of parties. It is also barred by principles of estoppel, waiver and acquiescence.

The further defense case is that the present proceeding is barred by the provision of Arbitration and Conciliation Act, 1996. The disputes between the parties are only civil in nature for which this Forum has got no jurisdiction. The complainant has filed the case in order to get money from the O.Ps. Considering such facts and circumstances the instant case is liable to be dismissed with cost.

The further defense case is that the complainant did not assess the suit value in total to and the case by way of fraudulent practice. The money receipts are not of the partnership firm. It was fully manufactured by the signatories.The O.P. No.5 Pratip Kr. Jha printed the money receipt for the sweet will of his own accord and also signed the money receipt of his own capacity. The person other than Pratip Kumar Jha received the money by money receipt. The English Bazar Municipality is the necessary party of this case but there no mention of the name. Finally the case is barred by Partnership Act where the complainants are not the all consumer. So considering such facts and circumstances the case is liable to be dismissed.

The written version as submitted by O.P. No.6 denying all material allegation as levelled against her that the case is not maintainable as there is no cause of action. She is not a partner and also co-partner of the Kiran Enterprise.  She has no agreement with the O.P. Nos. 1 to 5 regarding sale of the proposed flat. His name has been wrongly adduced in this case. This case is not in terms of Ownership Act. So dismissal of this case has been prayed for.                                                    

In order to prove the case the complainant No.1 was examined as PW-1 and also cross-examined.

On the other hand the O.P. Nos. 1,2 and 3 filed written version. The O.P. Nos. 1,2,3 were not cross-examined.

O.P. No. 4 Ramanath Jha filed Examination-in-Chief. He also filed W/V separately denying all the material allegations as levelled against him.

O.P. No. 6 filed Examination-in-Chief. She was not cross-examined.

No WNA was given.                                                      

Now the point for consideration: Whether the complainant is entitled to get any relief as prayed for ?

:DECISION WITH REASONS::                                                                

In the W/V of O.P. Nos. 1 to 3 has raised the point that complainants are not the ‘Consumer’ as such they are not entitled to get any relief and they also raised that Consumer Forum has got no jurisdiction to entertain such complaint as implicated right of property as involved and Civil Court has got the jurisdiction to try the case. But in this case it is found that the complainant paid near about Rs. 12,00,000/- (Rupees Twelve Lakhs) for purchasing a flat.

Now the main point is to be considered whether the complainant come under the definition of ‘Consumer’ under the definition of Consumer Protection Act, 1986. According to the definition of Sec. 2 (1)(d) a ‘Consumer’ means any person 1) who buys any goods for consideration which has been paid or promised or partly paid and partly promised but it is not included a person who obtained such goods for resale or for any commercial purpose.

From the evidence of P.W.1 it is found that he paid the money for residing in that flat. Definitely it is not a commercial purpose. Nowhere in the W/V. it is found that the complainants intend to purchase this flat for commercial purpose. Now the term ‘Goods’ means both movable and immovable property. So definitely, the complainants come under the definition of ‘Consumer’ within the definition of Consumer Protection Act, 1986.

New point as raised by the Ld.Lawyer of the O.P. is that the question of complicated right of property is involved and that can be decided in Civil Court but under the definition of Sec-3 of Consumer Protection Act, 1986 the Provision of the consumer protection shall be in addition to not in his derogation of the Provision of any other Law for the time being in force. From the argument it is held that complicated question of doubt as involved, this Forum has got the jurisdiction to try the case.

Now the main point is to be considered  whether the complainant paid money to the Kiran Enterprise or not. The O.P. Nos. 2 to 4 are the partners of  O.P. No.1 i.e. M/s. Kiran Enterprise. Now the main point is to be considered whether the money was paid by the complainant to the O.P. Nos. 1 through the partners.

At the time of argument the Ld.Lawyer of the O.P. Nos. 2 to 4 submitted that money was not received by the Kiran Enterprise i.e. O.P. No.1. Money was received by one Pratip Jha who is O.P. No.5 against whom the case is running ex parte. The O.P. Nos. 2 to 4 did not state anything about the encashment of cheques paid by the complainant.

There is no denial in the W/V or evidence that cheques were not encashed by Kiron Enterprise. No statement of accounts has been filed by the O.P.

According to the argument as advanced by the Ld. Lawyer of O.P. Nos. 2 to 4 that there is no nexus between Pratip Kr. Jha S/o Late Anath Bandhu Jha with the Kiran Enterprise but such argument is not at all tenable as because on perusal of the agreement it is found that one Pratip Kr. Jha S/o. Late Anath Bandhu Jha signed in the date and witness. Unless and until he has any relation to the Kiran Enterprise where Pratip Kr. Jha signed in the articles of agreement as witness. Moreover, on perusal of the address of Pratik Kr. Jha it is found that he is a resident of R.K Mission Road, Malda whereas the O.P. Nos. 2 to 4 are the resident of R.K. Mission Road, Malda. Why Pratip Kr. Jha has received the consideration money over the printed money receipt of Kiran Enterprise. If the PratipKr.Jha has no nexus with Kiran Enterprise why he received the money on behalf of Kiran Enterprise. Such intention Pratik Kr Jha is very clear that in order to avoid any future liability he put signature in the agreement as a witness. Moreover, on perusal of money receipt it is found that he received the money on behalf of the Kiran Enterprise though in the Articles of Agreement he was not a party. It indicates that in future there cannot be any liability of Pratik Kr. Jha. As and when it is found that money was received by Kiran Enterprise from the complainant No.1 the O.P. Nos. 2 to 4 are bound to deliver the flat as prayed for.

In the W.V. O.P. Nos.2 to 4 have raised the point in the W/V that this Forum has got no pecuniary jurisdiction to try the case. But the complainants paid Rs. 12,00,000/- (Rupees Twelve Lakhs Only).At the time filing of the case he did not pay the amount over Rs.20,000/- (Rupees Twenty Thousand Only). The jurisdiction is to be decided upon actual payment of money.

In this case the O.P. No.6 Mrs. Sangita Mishra in her W/V stated that she did not receive any furthing from the complainant and she was not a party to the agreement and she is not related to the Kiran Enterprise.

The case of the O.P. No. 6 is that the O.P. No.6 is the owner of the land as described in the Schedule A of the petition of complaint. After the demise of her husband on 15/12/2015 he faced financial crisis and she was intending to give her house to a proprietor so that she may get newly constructed place of living. At that time O.P. No. 5. Mr. Pratik Kr. Jha of M/s. Kiran Enterprise  who introduced himself as a man of O.P. No.1 i.e. M/s. Kiran Enterprise and gave a proposal to her for construction of apartment building. On 17/01/2011 she entered into the agreement with the firm under the name and style M/s Kiran Enterprise and O.P. No.5 signed in the deed as witness.

The further case of O.P. No.6 is that this O.P. has no liability towards the complainant as because the proposal for purchasing flat was made between the complainants and O.P. Nos. 1 to 5.

So from the written version it is found that O.P. No.5 also appeared before O.P. No.6. This also indicates the nexus of Pratip Kr. Jha with the Kiran Enterprise.

Moreover, from the cross-examination of P.W.-1 it is found that he paid the money to Kiran Enterprise through Pratik Kr. Jha.

So it is well established that the complainant P.W.-1 paid money to Kiran Enterprise.

So considering the facts and circumstances it is found that  as the complainant paid money for purchasing the flat to M/s. Kiran Enterprise as such entitled to get relief as prayed for.

C.F. Paid is correct.

Hence, ordered that

the case be and the same be and same is allowed on contest against O.P. Nos. 1 to 4  and ex parte against O.P. No.5  and dismissed against O.P. No.6. 

The O.P. Nos. 2 to 4 and 5 are directed refund the amount of Rs. 12,00,000/- (Rupees Twelve Lakhs Only) along with  interest @ 10 % p.a. from the date of first payment by complainant till refund within 45 days from the date of order.

In default O.P.Nos. 2 to 4 are directed to execute the deed in favour of the complainant after receiving the rest amount and delivered the possession of the property of the flat as prayed for within three months from the date of order.

The complainant will tender the rest amount within one and half months from the date of this order to O.P. No.1 through its partner.

In the event of non-receiving the amount and non-execution of the deed the complainant will have the liberty to register the deed through this Forum now Commission. Besides that the complainant also get Rs.5,00,000 (Rupees Five Lakhs Only) as cost for mental pain and agony and Rs.20,000/-(Rupees Twenty Thousand Only) as litigation cost totaling Rs. 5,20,000/- (Rupees Five Lakhs Twenty Thousand Only).  The amount so awarded will be paid within 45 days failing which failing which it will carry an interest @ 5% p.a. from the date of filing of this case.

Let a copy of this order be given to the both parties free of cost on proper application.