Dt. of filing – 22/08/2017
Dt. of Judgement – 29/01/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Rakesh Roy under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Shyam Developer 2) Rajesh Kumar Gupta 3) Dilip Saha and 4) Jayanta Saha alleging deficiency in rendering services on their part.
Complainant’s case in brief is that he booked corner side road facing shop room measuring 80 sq ft on 21/4/2015 at a total consideration price of Rs.3,04,000/- in the building to be constructed by the OP at plot no.319, Shree Pally, Regent Park, Kolkata-700093.
Complainant paid a sum of Rs.80,000/- to the OPs as booking amount on 21/4/2015 by way of account payee cheque which was received by OP No.2 on behalf of partnership firm/OP No.1. No agreement for sale was executed by them but assured the Complainant that he shall execute the agreement very soon. Complainant further paid sum of Rs.80,000/- out of the balance amount of total consideration by way of account payee cheque. Inspite of the repeated request and persuasion the OPs did not execute the agreement on one or other pre text. Complainant also lodged an FIR against OP. On his personal visit to the construction site, he saw that there was covered garage in place of shop room which has been illegally converted. Opposite Parties No.2, 3 & 4 manhandled him to compel him to accept the garage room in place of shop room. OPs have also sent a letter dated 30/3/2017 asking the Complainant to get the garage registered in his favour. But the Complainant could not agree as he had booked the shop room. So present complaint has been filed by the Complainant for directing the Opposite Parties to handover the possession of the schedule property which is one corner side road facing shop room as per building plan, on receiving the balance amount of Rs.1,40,000/- and to execute and register the Deed of Conveyance in respect of the said shop room in the name of the Complainant, to pay compensation of Rs.3,00,000/- and litigation cost of Rs.30,000/-.
Complainant has annexed with the complaint petition, money receipt, statement of bank account, copy of the notice sent by the Complainant to the OPs, copy of the cheque of Rs.80,000/- each, letter sent by the OPs to Complainant dated 9/5/2016 and the reply sent by the Complainant, copy of the FIR, seizure list and a photograph.
OP No.4 has contested the case by filing written version denying the allegation made in the complaint petition contending inter alia that he is in no way connected with the OP No.1 firm and has no knowledge about the booking or purchasing shop room by and between Complainant and the OP No.1. So the OP No.4 prayed for dismissal of the case against him.
Opposite Parties No.1 to 3 have also contested the case by filing written version denying the allegation made in the complaint petition stating inter alia that the OP No.3 is known to the Complainant as a neighbour for a long and Complainant approached the said OP No.3 before the sanctioned of the building plan of the said premises to purchase a covered car parking space on the ground floor in the newly to be constructed building. Non sanction of the building plan was duly informed to the Complainant and so it was agreed by the Complainant that the agreement for sale will be executed only after sanction of the building plan. KMC authority sanctioned the building plan of the said premises on 29/7/2015. No shop room was sanctioned by the KMC authority in the said premises. So the question of selling of shop room to the Complainant did not arise. Complainant had booked the covered garage but refused to enter into agreement for sale and on the contrary claiming for shop room beyond the sanctioned building plan. OP also sent two cheques amounting to Rs.80,000/- each to the Complainant to refund total booking amount but Complainant refused to accept the same. Thus the Opposite Parties have prayed for dismissal of this case.
During the course of evidence, both the parties adduced evidence by filing respective affidavit-in-chief followed by questionnaire and reply thereto. Complainant has also filed written notes of argument supporting his case as stated in the complaint petition. Ld. Advocate for OPs has argued that mere acceptance of certain amount, does not amounts to a contract between the parties and in support of the said argument has cited the case law reported in 2018(1) CPR 443 (NC).
So the following points require determination:-
- Whether there has been deficiency in rendering of services on the part of the OP?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No. 1 & 2
Both these points are taken up for comprehensive discussion.
At the very outset it may be pertinent to point out that admittedly there is no agreement for sale executed by and between parties. It is the case of the Complainant that he has paid booking amount of Rs.80,000/- on 21/4/2015 in order to purchase shop room as described in the schedule of the complaint at a total consideration price of Rs.3,04,000/- whereas according to the Opposite Parties No.1, 2 & 3 booking amount was paid for purchase of a covered garage. So the points to be adjudicated are whether the agreement if at all was entered into for purchase of a shop room or for a covered garage. It is settled principle of law that the party seeking relief and making allegation, has to prove the same. So Complainant has to establish that the booking amount paid by him was actually towards the purchase of shop room. There is absolutely no document filed in this case in order to substantiate that such payment was made towards purchase of the shop room. On the contrary the receipt filed by the Complainant indicates that the amount was paid by the Complainant towards the purchase of one covered garage. Complainant has agitated that this receipt in effect has been manufactured. But Complainant has not filed any other receipt. It is but natural that on payment of booking amount by the Complainant, some receipt acknowledging payment of that amount, must have been issued. But no such receipt is forthcoming before this Forum.
It cannot be ignored that the specific case of the OP is that there is no provision of shop room in the said building and only few covered garage has been sanctioned in the building sanctioned plan by the KMC. Complainant has not taken any step to produce the building plan or any other document in order to show that the shop rooms are also sanctioned in the building plan by the KMC. So if neither any agreement for sale in respect of the alleged shop room is filed nor any document showing provision of shop room in the sanctioned building plan, has been filed by the Complainant than case of the Complainant that alleged booking amount was paid for purchase of a shop room cannot be accepted and thus this complaint is liable to be dismissed.
Both the points are accordingly disposed off.
Hence,
ORDERED
CC/492/2017 is dismissed on contest against the OPs.
