IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/78/2018.
Date of Filing: Date of Admission: Date of Disposal:
27.04.18 08.05.18 14.01.2020
Complainant: Prasenjit Saha
S/O- Pannalal Saha,
85, Netaji Road, PO- Khagra,
PS- Berhampore,
Pin- 742103
-Vs-
Opposite Party: 1. Signatory Authority, OM CONSTRUCTION
28, Amar Chakraborty Road(Main),
PO- Khagra, PS- Berhampore
Pin- 742103 represented by its partners :
2. Sudip Sarkar
S/O- Lt. Nani Gopal Sarkar,
74/10 Kantanagar, PO- Khagra,
PS- Berhampore,
Pin- 742103
3.Abhik Choudhuri,
S/O- Sri Dilip Kumar Choudhuri,
No. 3 Srikanta Babu Lane, PO- Khagra,
PS- Berhampore,
Pin- 742103
Agent/Advocate for the Complainants : Sri. Dibyendu Chatterjee.
Agent/Advocate for the Opposite Parties : Sri. Surojit Banerjee.
Present: Sri Asish Kumar Senapati………………….......President.
Sri Subir Sinha Ray…………….……………………..Member.
FINAL ORDER
One Prasenjit Saha (here in after referred to as the Complainant) filed the case against the Signatory Authority, OM Construction and Others (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant is a citizen of India who booked a flat from the OPs bearing flat No. A measuring an area of 800 Sq.ft. on the second floor of the proposed multi stored building and the cost of the flat was settled at Rs.16,00,000/- and Rs.1,30,000/- for transformer, collapsible gate, generator and space for two wheeler parking. The Complainant paid Rs.3,00,000/- in advance and subsequently paid Rs.6,00,000/-. It was agreed in the agreement between the parties that the OP would deliver the possession of the flat within January, 2017 but long after the expiry of the said period the OP failed to deliver the possession of the said flat in spite of repeated requests and finally on 20.04.18 the OPs expressed their unwillingness to deliver the possession of the flat. Hence, the Complainant has filed the case praying for a direction either to deliver possession of the flat and for execution and registration of the said flat or to return the advance amount with present rate of interest and to pay a sum of Rs.50,000/- for harassment and cost of Rs.50,000/- for loss of interest.
The OPs contested the case by filing written version on 26.11.18, contending that the case is not maintainable and the case is barred by law of limitation. It is the specific case of the Complainant that the building consisted of 15 flats having average price of Rs.16,00,000/- each totaling Rs.2,10,00,000/-, So this Forum has no pecuniary jurisdiction to entertain the complaint. The OPs also denied the receipt of advance amount of Rs.9,00,000/- from the Complainant. It is the case of the OPs that there was an agreement between the parties for sale of a flat and the total price was Rs.17,30,000/- including the cost of augmentation of the electricity by installing electric transformer, collapsible gate, installation of generator and the Complainant pain only Rs.3,00,000/- as advance on 24.11.16 and Rs.3,00,000/- on 25.11.16 but subsequently he did not pay any balance amount in spite of repeated demands. As the Complainant had defaulted in payment of price of the said flat, the OPs intended to refund the advance money after deducting 25% of the amount paid in advance on account of failure on the part of Complainant to pay the balance sum of Rs.11,30,000/-. The Complainant declined to purchase the said flat and inclined to get refund with high rate of interest beyond the terms of agreement.
The OP is ready and willing to refund advance money deducting 25% out of advance amount in terms of agreement for sale. The OP has no deficiency in service and the OP has prayed for dismissal of the complaint with cost.
On the basis of the above version the following points are framed for proper adjudication of the case :
Points for consideration
1. Isthe Complainant a consumer under the provision of the CP Act, 1986?
2. Has this Forum jurisdiction to entertain the complaint?
3. Have the OPs any deficiency in service, as alleged?
4. Is the Complainant entitled to get any relief, as prayed for?
Point no.1
The Ld. Advocate for the Complainant submits that the complainant is a consumer of the OPs as he hired the services of the OPs.
On going through the written complaint, written version, evidence and documents filed by both sides, we find that the Complainant is a consumer as he hired the services of the OPs for consideration.
Point No.2
The Ld. Advocate for the Complainant submits that this Forum has both territorial and pecuniary jurisdiction to entertain the case.
The OPs have asserted that this Forum has no pecuniary jurisdiction to entertain the complainant as total price of the building is Rs.2,10,00,000/-.
On perusal of materials on record, we find that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint as cause of action arose within territorial limit of this forum and the cost of the disputed flat is within pecuniary limit of this forum..
Point Nos.3&4
The Ld. Advocate for the Complainant submits that the Complainant and the OPs executed an agreement in January, 2014 on receipt of Rs.3,00,000/- and received Rs.3,00,000/- on 24.11.14 and received Rs.3,00,000/- on 25.11.14 against money receipt Nos.24 & 25 and it was agreed by the OPs to deliver the possession of flat and to execute the sale deed on receipt of remaining price of the flat as per 6th schedule mentioned in the deed of agreement. The Ld. Lawyer for the Complainant argues that the OPs have not completed the flat and delivered the possession of the flat in spite of willingness of the Complainant to pay the balance amount of the agreed price of the flat. He submits that the Complainant has come to know that the OPs have already sold out the flat No. 2A to other person and the Complainant has alternative prayer for a direction to pay the advance amount with interest and compensation.
In reply, the Ld. Advocate for the OPs submits that the cost of the building is more than Rs.2,00,00,000/- which is beyond the pecuniary limit of this Forum and the OPs are willing to refund the advance amount of Rs.6,00,000/- after deducting 25% as the Complainant has defaulted in making payment as per agreement. He is prays for dismissal of the complaint with cost.
We have gone through the written complaint, written version and the documents filed by the Complainant. Admittedly, the Complainant paid Rs.3,00,000/- in January,2014 at the time of execution of the agreement. It appears from the money receipt No.24 and 25 issued by the OP No.2 on behalf of OP No.1 that the Complainant paid Rs.3,00,000/- on 24.11.14 and Rs.3,00,000/- on 25.11.14. We find that the OPs had not delivered possession of the flat No. 2A to the Complainant. There is no document filed by the OPs that the OPs demanded any due amount from the Complainant and the Complainant had not paid any heed to the demand. Therefore, it is clear that the OPs received Rs.9,00,000/- in advance in January, 2014, 24.11.14 and 25.11.14 but the OPs neither delivered the possession of the flat on receiving the rest amount from the Complainant not refunded the amount of Rs.9,00,000/- with interest to the Complainant. The OPs have stated that they are ready and willing to refund 75% of the advance amount of Rs.6,00,000/- to the Complainant but we find that no justification to accept the version of the OPs. We find that the OPs received Rs.9,00,000/- from the Complainant. The OPs have not even stated that they are willing to hand over flat No. 2A to the Complainant on receiving the due amount from the Complainant.
In our considered opinion, the OPs have deficiency in service as they neither handed over the possession of flat No. 2A by executing the sale deed after receiving the rest amount from the Complainant nor refunded the advance amount of Rs.9,00,000/- with interest to the Complainant.
We, think that the Complainant is entitled to get refund of Rs.9,00,000/- with interest @ 7% per annum with effect from 26.11.14 and compensation of Rs.30,000/- for deficiency in service and Rs. 10,000/- for litigation cost.
Reasons for delay
The Case was filed on 27.04.18 and admitted on 08.05.18 . This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day order.
Fees paid are correct.
In the result, the Complaint Case succeeds. Hence, it is
ORDERED
that the Consumer Complaint Case No. CC/78/2018 be and the same is hereby allowed on contest against the OPs with cost of Rs. 10,000/-.
The OPs are directed to pay Rs.9,00,000/- with interest @ 7% per annum with effect from 26.11.14 to the complainant by 45 days from the date of this order.
The OPs are further directed to pay compensation of Rs.30,000/- for deficiency in service and Rs. 5,000/- for litigation cost to the complainant by 45 days from the date of this order. The OPs are jointly and severally liable to comply the Order.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President
Member President.
