Before: Hon’ble President, Biswanath De.
Hon’ble Member,Debi Sengupta
Hon’ble Member, Samaresh Kumar Mitra
FINAL ORDER
Samaresh Kumar Mitra, Member:
The case of the complainant is that OP is the owner od schedule mentioned property and she expressed her intention to sell out the same after making it habitable and also installing lift. The petitioner is an aged person and she has been suffering from various diseases and she is also a patient of Arthiritis and for that reason she is unable to reach the upper floor of using stairs. The petitioner by paying Rs.500,000/- through cheque advanced the money to complete the flat. After taking advance money the OP avoided to finish the flat and failed to install the lift. It is the intention of the OP after receiving the consideration money the OP used to heckle the petitioner. Then he sent a letter asking the OP to return the advance money but the OP did not response. The complainant stated the OP either to return back the advance or to make the flat in question habitable and installing the lift. The OP declined to return back the advance money. Getting no alternative the complainant filed the instant complaint before this Forum for redressal as prayed in the prayer portion of the complaint.
The OP by filing written version denied the allegations leveled against her and stated that the instant complaint is not maintainable on the ground of contributory negligence on the part of the complainant herself as she has failed to perform her part of the contract by making payment of the balance consideration money payable by her within the stipulated period of six months, after causing valuation of the flat in question by the local registration office, was agreed upon between the parties. The OP averred that the writing on the stamp paper, acknowledging receipt of money by cheque can never be legally treated as an agreement for sale. Assuming it an agreement for sale it can be filed before the civil court for enforcement of specific performance of contract. So this Forum lacks jurisdiction. The answering OP never promised to do so which would be evident clearly
from the piece of paper of the undertaking for the sale. The complainant failed to cause such valuation and never asked this OP to execute proper deed of sale in her favour on the making payment of the balance consideration money as per the aforesaid probable market price of the flat. She further averred that there is no question of harassing the complainant by this OP by making investment of the nominal earnest money of Rs.5 lakhs in any profitable scheme as have been alleged. On the contrary, the complainant herself has, by this time caused acute financial loss to this OP by dragging the deal so long without releasing this OP to cause transfer of the flat to any other intending third party in spite of huge acceleration in market price of the flat in question with the passing of so many months.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
The sole OP filed evidence on affidavit which is nothing but replica of her written version.
Both sides filed written notes of argument which are taken into consideration for passing final order.
Argument as advanced by the agents of the parties heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant Smt.Shyamali Ghosh ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4. Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
- Whether the Complainant Smt. Shyamali Ghosh is a ‘Consumer’ of the opposite party? ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(i) of the Consumer Protection Act,1986. The complainant paid a sum of Rs.5,00,000/- as advance money to the OP with the intention to purchase a flat and the OP received the same is admitted in her written version, so this complainant being a purchaser of the flat owned by the OP is entitled to get service from the OP .
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents/carrying on business within the district of Hooghly and cause of action took place within the district. The complainant prayed for a direction upon OPs to return back a sum of Rs.500,000/- along with 10% compensation and also interest 10% there upon ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the petitioner is that he paid a sum of Rs.5,00,000/-as advance money to the op to purchase a residential flat and after receiving the said cheque the OP assured to do other works including the installation of a lift so that the complainant can go to the upstairs in her flat. The complainant and her husband have been suffering from knee problem as a result they are unable to go upstairs without lift. Apart from installing the lift the op dragged the matter for months. Lastly the complainant met the op and enquired whether she could install the lift or not and if she could not install the same then the complainant will get back the advance money. Then the OP agreed to return back the advance money alongwith the compensation within one month after selling the flat. Getting such assurance the complainant waited for a long period but of no result then she preferred the redressal of this Forum.
The answering OP denied the allegations as leveled against her and averred that the complainant after visiting the flat on the 3rd floor paid the advance money amounting to Rs.5 lakh and agreed to register the same after paying remaining amount. She never assured the complainant to install a lift in the flat and she is a seller but not the promoter/developer. So there is no question of deficiency of service on the part of the OP as service provider.
It is the case of the complainant that she agreed to purchase a flat on 3rd floor specifically described in the schedule. But the assurance given by the OP to install a lift is totally denied by OP as she is the seller of the flat but not the promoter/developer. There is no specific agreement for sale in between the complainant & the OP. Only there is a receipt in respect of advance money paid by the complainant. The OP nowhere denied the acceptance of Rs.5 lakhs from this complainant. But she demanded the remaining amount from the complainant and desired to execute and register the flat.
After perusing the documents, complaint petition, written version and hearing arguments it is clear that there is a point of difference between the parties in respect of installing a lift. As the complainant being the patient of Arthritics after visiting the flat with her husband advanced the flat on the 3rd floor having no lift at all. Not a scrap of paper is in the record from which we can infer that OP being the seller of flat not promoter or developer assured to install lift before taking advance money.
From the above discussion it is crystal clear that complainant failed to prove by adducing sufficient documents that the OP assured her to install the lift before taking the advance money from her. The complainant also failed to show her bonafide of registering and executing the flat in question by paying remaining amount. So the deficiency of service of OP in respect to installation of lift does not arise in respect of selling the flat to the complainant.
Going by the foregoing discussion hence it is ordered that the complainant failed to prove the deficiency of service of the OP for delivery of flat by installing lift, by adducing cogent document/evidence but the complainant is entitled to get back the advance money alongwith interest thereon. However considering the facts and circumstances there is no order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.
4). Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant failed to prove the deficiency of service of the OP in respect of delivery of flat by installing lift but the opposite party is under liability to return back the advance money paid to the complainant alongwith interest so the complainant is not entitled to get compensation as prayed for.
ORDER
Hence, ordered that the complaint case being No.67/2016 be and the same is allowed on contest against the opposite parties, with no order as to cost.
The Opposite Party is directed to return back the advance money amounting to Rs,5,00,000/- alongwith interest @ 8% p.a. since the date of filing the complaint petition till the payment within 45 days from the date of passing this order.
At the event of failure to comply with the order the Opposite Party No.1&2 shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
Dictated and corrected by me. Samaresh Kr. Mitra, Member.
