DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 16 of 2019

 

Sri Narayan Chandra Das,

S/O.Late Prafullya Kumar Das,

Presently residing at:

C/O. Tapan Kumar Das,

Jyotsna Lok, Jaynagar,

Lane No.-1, Near Battala,

P.O.-Agartala, P.S.-West Agartala,

Agartala, West Tripura, Pin-799001 .…..….........................Complainant.

 

 

VERSUS

 

1). Smt. Nibedita Baidya,

W/O.-Shri Samaresh Baidya,

Resident of Dhaleswar Road No.8, Agartala,

P.O.-Dhaleswar, P.S.-East Agartala,

Dist.-West Tripura, Pin-799007.

 

2). Shri Pankaj  Debnath,

S/O. Late Priya Lal Debnath,

Jaynagar, Vivekananda Lane,

Opposite to JPC Club,

P.O.-Agartala, P.S.-West Agartala,

Agartala, West Tripura, Pin-799001…...........................Opposite parties. 

 

 

      __________PRESENT__________

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

 

SRI U. DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

SMT. DR. B. PAL,

 MEMBER, 

DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA

 

C O U N S E L

 

For the Complainant : Sri Bimal Kanti Nath,

  Advocate.

For the O.Ps. : Sri Tapan Saha,

  Advocate. 

 

JUDGMENT  DELIVERED  ON:   29/8/2019

J U D G M E N T

The complainant Sri Narayan Chandra Das, set the law in motion by presenting the petition U/S 12 of the Consumer Protection Act 1986 complaining deficiency of service by the O.P. No.1 who is the Builder-cum-Promoter. The O.P. No.2 is the Land Owner against whom the Complainant does not have any grievance.  

  The complainant's case in brief is that the O.P. No.1 being the Builder-cum-Promoter had offered to the Complainant for sale of one flat having area of 540 sq. ft. at the Northeastern side on the 3rd floor in addition to one car parking area measuring 120 sq. feet at Bardowali, Agartala, Mouja -Agartala, Sheet No.5/3, Khatian No.1530 & 1582, C.S. Plot No.PB.335/370-4175/46538, 4176/46540 & Hal Dag No.1722/2942 & 1722/3001, Land measuring 0.0600Acre & 0.0198 Acre total 4 ganda classified as Bastu(Nal) in front side of the road. The O.P. No.2 is the Owner of the Land. The price of the flat including the garage was settled at Rs.18,70,000/-. The O.P. No.1 being the Builder-cum-Promoter executed Notarial Agreement bearing serial no. 81/MAR/17 dated 15/03/2017 with the Complainant for sale of the flat as per terms and conditions stipulated in the agreement.. It has been mentioned in the agreement that the construction of the proposed building shall be completed within 22 months from the date of agreement for sale.   The Complainant on the day of agreement i.e. on 15/03/2017 paid Rs.3,74,000/- as advance / booking amount by cheque bearing No.055304 dated 15/03/2017 drawn on Tripura State Co-operative Bank Ltd., Agartala Branch. The O.P. No.1 has acknowledged the receipt of the amount which has been mentioned at Para-2 of the Agreement for sale dated 15/03/2017. The complainant thereafter paid 1st installment amount of Rs.2 lac to the O.P. No.1 by another cheque vide No.883183 dated 30/06/2017 drawn on UBI, Battala Branch, Agartala. The O.P. No.1 has acknowledged the receipt of the amount by issuing money receipt in favour of the complainant. The Complainant thereafter having visited the site found that the O.P. No.1 after getting the earth cutting on the site raised some columns and after that there was no further progress in the construction work. The Complainant  contacted the O.P. No.1 and that he was then assured by him that construction work will resume soon. The O.P. No.1 on 05/04/2018 issued a letter to the Complainant requesting him to pay him the 2nd & 3rd Installments in total Rs.4 lac and also an amount on GST. In the said letter the O.P. No.1 also appraised him that if the Complainant does not wish to pay the amount he(the Complainant) may cancel the agreement for sale and in that event he is ready to refund the amount that had been paid by the Complainant to him within 3 months after cancellation of the agreement. The Complainant further alleged in his complaint that although the O.P. No.1 had assured him at the time of execution of the Agreement for sale that she would supply him all the relevant copies of papers/documents like building permission, trade license & GST Account against the proposed building but the O.P. No.1 even after receiving advance amount and also the 1st installment amount did not supply him copies of such documents. Thereafter the Complainant issued legal notice dated 28/04/2018 to the O.P. No.1 calling upon her to supply him copies of the documents but the O.P. No.1 instead of supplying of the documents had informed the Complainant that as the Complainant has already cancelled the agreement she would refund the amount of Rs.5,74,000/- to him which had been paid by him to the O.P. No.1, within 03 months from the date of 13/04/2018. The complainant disagreeing with the proposal requested the O.P. No.1 by issuing legal notice dated 24/06/2018 to refund the amount within 01 month by two equal installments instead of within 03 months as sought for by the O.P. The complainant further alleged in her complaint that as per the request of the O.P. No.1, he had furnished his Bank details to the O.P. No.1 on 05/06/2018 in order to get refund of the amount but the O.P. No.1 did not pay any single penny to him. Consequently, the Complainant again issued a legal notice dated 28/07/2018 to the O.P. No.1 demanding for refund of the amount of Rs.5,74,000/- with 9% interest. As the O.P. No.1 did not make any response to his legal notice, the Complainant again served legal notice dated 28/8/2018 calling upon the O.P. No.1 to pay him the amount Rs.5,74,000/- with 9% interest on the said amount within 15 days and by the said notice he also informed her that if she would fail to refund the amount, he would approach the Competent Authority for recovery of the amount from her. The Complainant also stated in his complaint that he had learnt from reliable source that the Land Owner i.e. the O.P. No.2 has cancelled the Development Agreement which was executed between the O.P. No.1, the Developer and the O.P. No.2, the Land Owner and that the O.P. Land Owner also revoked the Registered Power Attorney which was executed in favour of the O.P. Developer. The O.P. No.1 by issuing letter dated 08/12/2018 informed the complainant of her inability to return the amount of Rs.5,74,000/- with interest in one time and that she urged for refunding the amount by installments. In response to said letter, the Complainant on humanitarian ground by issuing Advocate's notice dated 17/01/2019 called upon the O.P. No.1 to refund the amount Rs.5,74,000/- in three installments within 60 days from receipt of the notice. The O.P. No.1 thereafter kept silent.

Thereafter, the complainant filed the instant complaint before this Forum praying for refund of amount of Rs.5,74,000/-, Rs.50,000/- as compensation for suffering mental agony and harassment, Rs.20,000/- as litigation cost, totaling Rs.6,44,000/- from the O.P. No.1.

Hence this case. 

2. Based on the complaint notices were duly sent to the O.Ps. from the Forum. The notices were duly served upon the O.Ps.  But the O.Ps. did not file their W.O. though several dates had been posted giving them opportunity to file W.O. So the case proceeded exparte against them vide orders of the Forum dated 27/05/2019 & 21/06/2019.

 

3. EVIDENCE ADDUCED BY THE COMPLAINANT:

  In due course of time the complainant has been examined exparte with reference to his examination-in-chief by way of Affidavit furnished before the Forum.  

  The Complainant has produced 12 documents comprising 26 sheets. The documents are :- Original sale agreement dated 15/03/2017, Original Bank receipt regarding payment of Rs.3,74,000/- to the O.P. No.1 through RTGS, Original money receipt issued by the O.P. No.1 to the Complainant showing payment of Rs.2 lac by the Complainant to the O.P. No.1, Copy of letter dated 20/04/2018 from the Complainant through his Advocate,  Original letter of the O.P. No.1 dated 20/04/2018, Letter from the Complainant dated 26/04/2018 through his advocate, Original letter of the O.P. No.1 dated 21/05/2018, Reply letter dated 05/06/2018 issued by the Complainant to the O.P. No.1,  Receipt dated 05/06/2018 issued by the Courier, Original receipt copy of Advocate's notice dated 28/08/2018 on behalf of the Complainant, Original letter dated 08/12/2018 of the O.P. No.1 addressed to the Complainant & Original receipt copy of the Advocate's notice dated 17/01/2019 of the Complainant. The documents are marked Exhibit-I series.   

4. We have heard arguments from the complainant side.  

      We have gone through the complaint and the evidence adduced by way of Affidavit by the Complainant as well as the documentary evidence produced by the Complainant.  

  We are satisfied that the complainant had entered into an agreement with the O.P. No.1 on 15/03/2017 for purchasing a Flat on consideration amount of Rs.18,70,000/- and that on the same day the Complainant paid Rs.3,74,000/- as advance to the O.P. No.1. The complainant thereafter paid 1st installment amount of Rs.2 lac to the O.P. No.1 by another cheque vide No.883183 dated 30/06/2017 drawn on UBI, Battala Branch, Agartala. The O.P. No.1 has acknowledged the receipt of the amount by issuing money receipt in favour of the complainant. As per the agreement the Complainant is supposed to get possession of the Flat within 22 months but we find that till filing of the complaint the O.P. did nothing  except raising some columns after cutting earth at the site. The Complainant  contacted the O.P. No.1 and that he was then assured by him that construction work will resume soon. The O.P. No.1 however did not take initiative for further construction work. We find that in order to get back the amount of Rs.5,74,000/- from the O.P. No.1, the Complainant made several correspondences with the O.P. No.1. Lastly, as per request of the O.P. No.1 the Complainant issued a letter on 17/01/2019 requesting the O.P. to refund the amount of Rs.5,74,000/- with interest by 3 installments within 60 days from receipt of the letter but the O.P. No.1 in response to the said letter did not pay any single penny to the Complainant. The Complainant thereafter filed the Consumer complaint against the O.Ps. 

  It is evident that the O.P. has admitted his inability to return the advance amount of Rs.3,74,000/- and 1st installment amount Rs.2 lac in total Rs.5,74,000/- in full with 9% interest to the Complainant in one time. Though he had prayed for returning the amount by installments but we find that till filing of the Complaint the O.P. No.1 has not returned any amount to the Complainant though the Complainant allowed her to repay the amount within 60 days in 3 installments. 

  The O.P. No.1 according to us has indulged in unfair trade practice. The Complainant has suffered  mental agony, and harassment on account of the unfair trade practice indulged in by the O.P. No.1

5. In view of the discussion made above we find and hold that the complainant has succeeded in establishing his case  U/S 12 of the Consumer Protection Act 1986. 

  We accordingly find the O.P. No.1 guilty of committing unfair trade practice against the complainant. 

  It is here by directed that the O.P. No.1 shall return Rs.5,74,000/-  being the amount of advance and 1st installment that had been paid by the Complainant for purchasing a Flat as per agreement arrived at between the complainant and the O.P. No.1 The amount of Rs.5,74,000/- shall carry interest @9% P.A. from the dates of deposit made by the Complainant as advance amount and 1st installment amount  till the payment is made. 

   The O.P. No.1 shall also pay Rs.10,000/- to the Complainant for causing mental agony and harassment together with Rs.5,000/- being the cost of litigation. Thus the O.P. No.1 shall have to pay in total Rs.5,89,000/- (Rs.5,74,000/- + Rs.10,000/-+  Rs.5,000/-) to the Complainant within a period of 2 months from the date of judgment failing which the amount Rs.10,000/- & Rs.5,000/- as awarded above shall carry interest @9% P.A. till the payment is made in full.    It is made clear that apart from the above amount of compensation, the O.P. shall have to pay additional 9% interest on Rs.5,74,000/- to be accrued from dates of deposit  made by the Complainant as advance amount and 1st installment amount  till the payment is made.

  

ANNOUNCED

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA

 

 

SRI U. DAS

MEMBER,

DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

 WEST TRIPURA,  AGARTALA.

 

 

 

SMT. DR. B. PAL,

 MEMBER, 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA