Tripura

StateCommission

A/13/2021

Sri. Himansu Debanth - Complainant(s)

Versus

Shri Krishendu Deb - Opp.Party(s)

Mr. P. Chakraborty, Mr. A. R. Choudhury, Mr. S. Chakraborty

15 Jul 2021

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

Case No. A.13.2021

 

 

 

1. Shri Himangshu Debnath,

S/o Late Bhagirath Debnath,

Resident of Dhaleshwar Road No.8, 

P.O. Dhaleshwer, P.S. East Agartala,

District - West Tripura, Pin-799007.

… … … … Appellant/Opposite Party No.2.

Vs

 

 

1. Sri Krishendu Deb,

C/o Bithika Datta Purkaystha

of Kacharghat, Kailashahar,

District - Unakoti Tripura.

 

Presently residing at

C/o Sri Prabal Sarkar of Indranagar, 

P.S. East Agartala,

District - West Tripura.

… … … … Respondent/Complainant.

2. Smt. Nibedita Baidya,

W/o Sri Samaresh Baidya

of Dhaleshwer Road No.6,

P.S. East Agartala, P.O. Dhaleshwar,

District - West Tripura, Pin: 799007.

 

Presently residing at the house of

Sri Subrata Bhattacharjee,

Near Magnet Club, Krishnanagar,

P.S. West Agartala, District - West Tripura.

… … … … Respondent/Opposite Party No.1.

 

Present

 

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

Dr. Chhanda Bhattacharyya

Member,

State Commission

 

Mr. Kamalendu Bikash Das

Member,

State Commission

 

 

 

 

For the Appellant:                                             Mr. Pradip Chakraborty, Adv.

For the Respondent No.1:                                 Mr. Mridul Kanti Arya, Adv.

For the Respondent No.2:                                 Absent.

Date of Hearing & Delivery of Judgment:                   15.07.2021.

J U D G M E N T [O R A L]

U.B. Saha, J,

The instant appeal is filed against the judgment dated 17.02.2020 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum at present District Commission), West Tripura, Agartala in Case No.C.C.61 of 2019 whereby and whereunder the learned District Commission allowed the complaint petition directing the opposite party no.1 and 2 i.e. the respondent no.2 and the appellant herein, to return Rs.4,32,500/- to the complainant being the advance amount that had been paid by the complainant by way of cheque for purchasing a flat as per agreement arrived at between the complainant and the opposite party no.1 and 2. The amount of Rs.4,32,500/- shall carry interest @9% per annum from the dates of deposit of the cheque made by the complainant,  till the payment is made in full.

The opposite parties are also directed to pay Rs.20,000/- to the complainant for causing mental agony and harassment together with Rs.5,000/- towards the costs of litigation, in total Rs.4,57,500/- jointly and severally to the complainant within a period of two months from the date of judgment, failing which, the amount shall carry interest @9% per annum till the payment is made in full. Apart from the above amount of compensation, the opposite parties shall have to pay additional 9% interest on Rs.4,32,500/- to be accrued from the dates of deposit of the cheque till the payment is made.

2. Today the matter is fixed for hearing.
3. An application is filed by the opposite party no.1, the respondent no.2 herein, Smt. Nibedita Baidya for allowing her one month time as she started to deposit the judgment money as per judgment of the learned District Forum, West Tripura, Agartala in Case No.C.C.16 of 2019.
4. It appears from the record that the instant appeal is filed against the judgment of C.C.61 of 2019 of the learned District Forum, West Tripura, Agartala not against the C.C.16 of 2019. More so, when the appeal is taken up for hearing, none appeared on behalf of the respondent no.2 (opposite party no.1). As she did not take any step/action to appear either before the learned District Forum or before this Commission except to file this application. Thus, the appeal is proceeded ex parte against the respondent no.2 (opposite party no.1). Hence, the prayer for time is rejected. 
5. Heard Mr. Pradip Chakraborty, Ld. Counsel appearing on behalf of the appellant (hereinafter referred to as opposite party no.2) as well as Mr. Mridul Kanti Arya, Ld. Counsel appearing on behalf of the respondent no.1, Sri Krishendu Deb (hereinafter referred to as complainant). None appears on behalf of the respondent no.2, Smt. Nibedita Baidya (hereinafter referred to as opposite party no.1).
6. Fact of the case are as follows:-

The complainant, Sri Krishendu Deb being allured by an advertisement published in a newspaper contacted with the opposite party no.1 to purchase a Flat from him/her in the month of January, 2017. After detailed discussion with the opposite party no.1, the complainant executed an agreement with the opposite party no.1 on 26.02.2017 for purchasing a flat measuring 765 sqft. carpet area in 2^nd Floor (Northeast side) of G+3 storied building located at Dhaleswar Road No.8, Agartala, West Tripura with parking space on consideration of Rs.21,62,500/. The opposite party in the agreement had promised that the construction of the flat will be completed within 22 months from the date of agreement and in case the opposite party no.1 failed to deliver the possession of the flat within that period, then the opposite party no.1 shall return the advance amount with 9% interest per month to the complainant. As per the terms and conditions of the agreement, the complainant paid an amount of Rs.4,32,500/- to the opposite party no.1 as booking amount through one cheque dated 26.02.2017 bearing No.715753 of UBI Bank. The said agreement for sale had been registered before the Notary Public at Agartala on 26.02.2017. It is also alleged in his complaint petition that after visiting the site he found that the opposite party no.1 did not proceed with minimum construction work. The opposite party no.1 on 25.04.2018 issued two letters to the complainant requesting him to pay Rs.51,900/- being the GST amount upon the booking amount of Rs.4,32,500/- in order to enable him to start with the construction work. After receiving the letters, the complainant went to the office of the opposite party no.1 at Dhaleswar Road No.8, but the complainant did not find the opposite party no.1. Subsequently, the opposite party no.1 informed the complainant that the GST amount of Rs.51,900/- was to be paid in cash to him. The complainant then told the opposite party no.1 that he was ready to pay the amount in cash subject to issuance of receipt by the opposite party no.1 in his favour. The opposite party no.1 rejected the proposal of the complainant and apprised the complainant that unless the GST amount is paid to him in cash it would not be possible on his part to construct the flat. Thereafter, the complainant tried to contact with the opposite party no.1 several times, but he failed to get him. Having found no other alternative, the complainant on 02.08.2018 sent a letter to the opposite party no.1 demanding refund of the booking amount of Rs.4,32,500/- with 9% interest per annum from the date of deposit of the amount and also for cancellation of the agreement. As the opposite party no.1 did not respond to the letter and after waiting for three months, the complainant went to the office of the opposite party no.1. He was then appraised by the staff of the opposite party of re-submitting a fresh letter seeking for cancellation of the agreement and also furnishing Bank Account details with IFSC Code of the complainant. The complainant accordingly, on 16.11.2018 issued fresh letter to the opposite party no.1 wherein he mentioned his Bank Account details, IFSC Code etc. and sought for cancellation of the agreement, but the opposite party no.1 did not take any action on the said letter.

Being aggrieved and dissatisfied with the conduct of the opposite party no.1, the complainant filed the complaint petition before the learned District Forum, West Tripura, Agartala against the opposite parties claiming Rs.6,65,350/- which includes the booking amount with  interest  @9% per annum, Rs.5,000/- on account of negligence, Rs.15,000/- for causing harassment and mental agony, Rs.15,000/- as cost of litigation, Rs.5,000/- towards travel fare and Rs.70,000/- being the expenses incurred by him as rent for the house where he was staying.

7. The learned District Forum after registration of the complaint petition and on the basis of the complaint issued notices to the appellant, the opposite party no.2 as well as the respondent no.1, the opposite party no.1, but none of the opposite parties appeared before the learned District Forum to contest the case though the learned District Forum as per prayer of the complainant published the notice in the name of the opposite parties in local daily newspaper having wide circulation at the expenses of the complainant. In spite of publication of the notice in the newspaper, the opposite parties did not turn up before the learned District Forum. Thus, the learned District Forum proceeded with the case ex parte against the opposite parties.
8. Considering the evidence adduced by the complainant, the learned District Forum passed the impugned judgment.
9. Being aggrieved by and dissatisfied with the impugned judgment, the opposite party no.2, the appellant herein, has preferred the instant appeal.
10. Mr. Chakraborty, Ld. Counsel has submitted that in the impugned judgment there is no wrong except the findings regarding the opposite party no.2 i.e. the appellant herein, particularly, the direction of the learned District Forum so far the opposite party no.2 is concerned. He has also submitted that though the learned District Forum in its findings stated that the complainant had entered into an agreement with the opposite party no.1 on 26.02.2017 for purchasing the flat in question, but the learned District Forum fixes liabilities on the appellant i.e. the opposite party no.2 which itself an erroneous findings needed to be modified to the extent so far the opposite party no.2 is concerned.
11.   Mr. Arya, Ld. Counsel has fairly stated that the complainant in his complaint petition did not make any allegation against the appellant-opposite party no.2. He has also submitted that the complainant did not enter into any agreement with the appellant-opposite party no.2 so far the purchase of the flat is concerned. According to him, the entire agreement was with the opposite party no.1 i.e. the respondent no.2 herein. Thus, the direction of the learned District Forum so far the appellant-opposite party no.2 is concerned wholly perverse and wrong. He has finally contended that he has no objection if the direction of the learned District Forum is modified excluding the appellant-opposite party no.2.
12. We have gone through the impugned judgment as well as the evidence on record. We have also considered the submissions of the Ld. Counsel appearing for the parties. According to us, the learned District Forum failed to consider that the appellant-opposite party no.2 is only the owner of the land, not the party in the agreement for selling the flat in question which took place between the complainant (respondent no.1) and the opposite party no.1 (respondent no.2). Hence, we are of the opinion that it would be proper to modify the findings and directions of the learned District Forum regarding payment of awarded amount to the complainant.    

In view of the above, the findings and directions of the learned District Forum so far the appellant-opposite party no.2 is concerned hereby set aside and the impugned judgment is modified to the extent that the opposite party no.1, Smt. Nibedita Baidya i.e. the respondent no.2 herein, shall return Rs.4,32,500/- to the complainant being the advance amount that had been paid by the complainant by way of cheque for purchasing a flat as per agreement arrived at between the complainant and the opposite party no.1. The amount of Rs.4,32,500/- shall carry interest @9% per annum from the dates of deposit of the cheque made by the complainant,  till the payment is made in full.

The opposite party no.1 is also directed to pay Rs.20,000/- to the complainant for causing mental agony and harassment together with Rs.5,000/- towards the costs of litigation, in total Rs.4,57,500/- to the complainant. The entire amount shall pay within a period of one month from the date of judgment, failing which; the amount shall carry interest @9% per annum till the payment is made in full. It is made clear that excluding the above amount of compensation, the opposite party no.1 shall have to pay additional 9% interest on Rs.4,32,500/- to be accrued from the dates of deposit of the cheque till the payment is made.

In the result, the appeal is allowed and the impugned judgment is modified to the extent as indicated above. The learned District Forum shall act as per the observation on modification by this Commission. It is also made clear that the appellant-opposite party no.2 shall not be liable to pay any amount to the complainant as per the direction of the learned District Forum. The entire amount shall be paid by the opposite party no.1, Smt. Nibedita Baidya i.e. the respondent no.2 herein, within the stipulated period as mentioned above.

Send down the records to the learned District Forum/Commission, West Tripura, Agartala.

 

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura