DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 91 OF 2014
DATE OF FILING:4.3.2014 DATE OF JUDGEMENT: 12.7.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : Sri Bejoy Krishna Debnath, son of late Bipin Behari Debnath of 1/58, Baghajatin , P.S Patuli, Kolkata-92.
O.P/O.Ps : Snehasish Mondal, son of Bimal Krishna Mondal of 2/81A, Bijoy Garh , P.S Jadapur, Kolkata-32 and also office at C/o Manas Das, 41/F, R.N. Das Road, Kapi Bagan, Water Tank, Dhakuria, Kolkata-31.
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JUDGMENT
Sri Ananta Kumar Kapri, President
The complainant has hewed his way for long 5 years to recovery the money ,which he advanced to the O.P for purchasing a flat in the building proposed to be constructed by the O.P, but his attempt has received a severe jolt when the O.P succeeded to procure an order from the Hon’ble State Commission in F.A no. 361 of 2017 vide order dated 28.1.2019 ,wherein the Hon’ble State Commission has been pleased to set aside the judgment passed by this Forum with a direction to give a chance to the O.P to ventilate his grievance by filing written version before this Forum. Accordingly, the O.P has filed written version and evidence. The deck is now all clear for writing judgment.
Facts leading to the filing of the instant case by the complainant may be epitomized as follows.
A sale agreement dated 15.7.2010 was executed by and between the complainant and the O.P and thereby the O.P agreed to sell a flat and a car parking space described succinctly in Schedule B to sale agreement for a total consideration price of Rs.15,75,000/-. The complainant paid Rs.6 lac to the O.P and the balance amount of consideration price was to be paid at the time of registration and delivery of possession of the flat and car parking space . Possession was to be delivered by July, 2011. But, the O.p has failed to start construction work of the building far less the question of delivery of possession by July, 2011. Therefore, the complainant demanded refund of the consideration price paid by him. The O.P did not pay any heed to such demand of the complainant and, therefore, the complainant has filed the instant case , praying for passing orders directing the O.P either to refund the consideration price received by him or to deliver the possession of the flat and car parking space to the complainant. Hence, this case.
The O.P has filed written version to contest herein . But the written version is found to be replete with nothing but denials and denials. The only positive case which is made out in the written version is that the O.P has paid Rs.6 lac to the complainant when the complainant and his men reached his house and fomented a chaotic situation in his house. The complainant has suppressed the material facts in the petition of complaint and, therefore, he is not entitled , as goes the version of the O.P, to any relief as prayed for.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the O.P guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs, if any, as prayed for?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed on behalf of the complainant and the O.P and the same is kept in the record after consideration. BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
In the instant case, the execution of sale agreement by the O.P is not denied. Similarly, the receipt of Rs.6 lac from the complainant as part payment of consideration money is also admitted by the O.P. It is also admitted by the O.P in his pleadings and proof that he was unable to complete the project by July ,2011, that is, the date agreed between the parties. Inability of the O.P to complete his project within the time limit is a glaring instance of deficiency in service and in that case, the complainant/purchaser is entitled to get back his money paid to the O.P/developer.
Now to see whether the O.P has actually paid back Rs.6 lac to the complainant. He does not say the mode of payment of this money to the complainant. It is stated in the written version that the money was paid by cheque. No cheque number nor any date is pleaded and proved by the O.P. The O.P could have produced before the Forum cogent evidence to show that he actually paid the money of Rs.6 Lac to the complainant. The complainant has denied that he received Rs.6Lac. It is only available on record from the BNA which was filed by the complainant before this Forum that O.P has paid Rs. 1 lac to the complainant during the pendency of the Certificate Case before the Ld. Executive Magistrate at Alipore vide para 6.3 of the BNA of the complainant. So, in the face of this facts and circumstances, it is found that the O.P has totally failed to substantiate his claim that he has paid Rs.6 lac to the complainant. In fact, it is found that the O.P has no defence to make out. Had he had any defence, he would have been able to file cogent papers to establish that the payment of Rs.6 lac was made to the complainant. As there is no paper filed by him in support of his contention, there is obvious reason to think that the O.P moved the appeal before the Hon’ble State Commission with an ulterior motive. The Hon’ble State Commission has been pleased in its sagacity to give a chance to the O.P to ventilate his grievance by filing written version and this has been done by the Hon’ble State Commission for interest of justice. Does the O.P care for justice? He has no care for it. He has no case to make out. His purpose lies somewhere. His object lies somewhere. His object is to stop the fair progress of the proceedings of the complainant against him by any hook or crook . He knows very well that the more the rigmarole continues, the more he will be benefited by way of investment of money of the complainant and that thing has been done by the O.P and the shenanigan of the O.P is now completely exposed to the Forum. He could have taken a humanistic approach and could have paid back the money to the complainant in terms of the award passed by the Forum. But, he has not done that thing; he has approached the Hon’ble State Commission and has pleaded there that justice has been denied to him. If justice is at all denied to him, why he has not come forward before this Forum with cogent evidence to prove that Rs.6 lac has already been paid by him to the complainant. The conduct of the O.P exposes nothing but the abuse of process of law and such abuse of the process of Law may also be well characterized as gross deficiency in service on the part of the O.P. The complainant has lost interest over Rs.6 lac and he could have earned a lot of interest over the said money within a period of 8 years i.e from the date of payment till date. On the other hand, what has been done by the O.P? The O.P has been employing this money in his business over this period and has become unjustly enriched. Law does not allow anyone to be unjustly enriched . The O.P will have to pay compensation to the complainant for the loss suffered by the complainant over and above the loss sustained by the complainant physically and mentally.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P with a cost of Rs.10,000/-.
The O.P is hereby directed to pay back Rs.6 lac to the complainant with interest @12% p.a for the period from 15.7.2010 i.e the date of payment to the O.P till the date of full realization thereof ,subject to deduction of Rs. 1 lac already paid earlier by the O.P to the complainant, within a month of this order, failing which the complainant is at liberty to execute the order through the machinery of this Forum.
He i.e the O.P is also directed to pay Rs. 1 lac as compensation for harassment and mental agony caused to the complainant throughout the years for a continuous period of 8 years about, within a month of this order, failing which the compensation amount and the cost amount will bear interest @12% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member
Dictated and corrected by me
President
