In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/170/2019.
Date of filing: 05/11/2019. Date of Final Order: 27/07/2023.
Rabindra Mishra
30/A/104, Dr. P.T. Laha Street (Bangur Park)
P.O & P.S-Rishra, Dist-Hooghly
Pin-712248. Complainant.
Vs -
- S.S. Company
11/20 Sadhan Kanan, P.O-Morepukur & P.S-Rishra,
Dist-Hoohly Pin-712250 & SonuSingh (now deceased) / legal heri/wife Smt. Priyanka Singh
11/20 K.C.Sen Road, P.O-Morepukur & P.S-Rishra
Dist-Hooghly, Pin-712250.
- Smt. Bithika Aich wife of Lt. Nani Gopal Aich
- Sri Rajen Aich son of Lt. Nani Gopal Aich
- Smt. Kumkum Chakraborty wife of Sri Nirmal Chakraborty
- Smt. Munmun Dhar wife of Sri Pratap Dhar
- Smt. Jhuma Chowdhury wife of Sri Asit Baran Chowdhury
- Smt. Ruma Das wife of Sri Sujal Das
- Smt Soma Das wife of Sri Jayanta Das
- Smt Khama Saha wife of Sri Narayan
6/1/A, das para Lane(new) P.O-Morepukur,
P.S-Rishra Dist-Hooghly, Pin-712250
Opposite parties.
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
FINAL ORDER/JUDGMENT
Presented by:
Shri Debasish Bandyopadhyay, President.
Brief facts of the case: This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the op-1 is being a developer and constituted Attorney of the op-2 to 9 who are the land owners of the schedule mentioned suit property, had approached the petitioner to purchase one flat in the schedule mentioned suit property and after satisfying the petitioner with lofty promises of registration, possession, mutation of the flat of property had executed one agreement for sale on dated 05.09.14 with the petitioner and the petitioner had paid an advance of Rs.200000/- on the execution of the aforesaid agreement for sale by account payee cheque vide no.006132 drawn on Central bank of India.
After execution of the said agreement the op-1 had died intestate leaving behind his wife , the legal heirs of op-1 and op-1 is run by the sole proprietorship firm at present.
The petitioner had approached the op-1 to ask for delivery of possession and registration of the suit property after paying the balance amount and as such had approached op-1 to take out the balance money. However the op-1 refused to do so and ask for return of the of the money advanced to the petitioner and also such activities were in verbal modes only. However the petitioner getting no justice fromtheop-1 from the side of non return of money or fulfilling the promises as per the agreement had approached op-1 to refund money and after making a wide discussion as well as a conciliation meeting with father of the op-1 and another developer, the OP-1 had agreed to refund money of Rs.200000/- to the petitioner by issuing one minutes of the meeting in assurance dated 15.9.15.
Since the assurance in writing by op-1 dated.15.9.15 the op-1 neither refunded the money to the petitioner nor executed any promises as per the agreement and as such the petitioner since 15.9.15 was enjoying the days with great hardship and mental agony and as such petitioner being under distress had made one advocate notice to op-1 as well as the op-2 to 9 and this was sent by speed post.
Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 200000/- alongwith interest @8% p.a. and to pay a sum of Rs.100000/- for mental agony and harassment and interim injunction and to pay a sum of Rs.10000/- for litigation cost.
Evidence on record
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.
Argument highlighted by the ld. Lawyers of the parties
Complainant has filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant shall have to be taken into consideration for disposal of the instant proceeding.
Heard argument of complainant at length. In course of argument ld. Lawyer of complainant has given emphasis on evidence and documents produced by the parties.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
DECISION WITH REASONS
The points of consideration nos. 1 and 2 are taken up for discussion jointly as because the questions involved in these two points of consideration are interlinked and/ or interconnected with each other. The first point of consideration which has been adopted in this case is whether the complainant is a consumer or not. In this connection it is important to note that the complainant booked one flat in the suit property which has been developed and/ or promoted by the ops and at the same of agreement for sale the complainant has paid consideration money of Rs. 2,00,000/- to the ops against proper receipt. This matter is clearly indicting that the complainant is a consumer under the ops. Moreso, as per Section 11 of the Consumer Protection Act, 1986 the complainant is a consumer in the eye of law.
The maintainability point is one of the important issues in this case. This District Commission after going through the materials of this case finds that the claim of the complainant in this case is below Rs. 20 lakhs which indicates that this District Commission has pecuniary jurisdiction to try this case. Moreso, the complainant is a resident of Rishra, Hooghly and op has its business place at Rishra, Hooghly which indicates that this District Commission has its territorial jurisdiction for trying this case. Moreover, the facts stated in the petition of complaint is going to reflect that there is cause of action that the complainant for filing this case. Moreso, the cause of action of this case has been continued. Over the issue of limitation this District Commission after going through the provisions of Section 24A of the Consumer Protection Act, 1986 finds that this complaint case has been filed within time and there is no delay in the matter of institution of this complaint case.
All the above noted factors are clearly depicting that the complainant has the right of institution of this case against the ops and there is cause of action for filing this case and this case is not barred by limitation and the complainant is a consumer in the eye of law. All these factors are clearly reflecting that the complainant has proved his case in respect of points of consideration nos. 1 and 2 and so these two points of consideration are decided in favour of the complainant side.
The points of consideration no. 3 is related with the question whether there is any deficiency of service on the part of the ops or not and the point of consideration no. 4 is connected with the question whether the complainant is entitled to get relief in this case or not.
Regarding these two points, this District Commission after going through the evidence on affidavit which has been filed by the complainant finds that the complainant has categorically described his case in the evidence on affidavit and the evidence on affidavit which has been filed by the complainant is nothing but the replica of the petition of compliant. Moreso, the case of the complainant is also supported by documents. On parallel reading of the evidence on affidavit and documents filed by the complainant side this District Commission finds that the complainant has proved his case by way of giving satisfactory evidence. Moreover, as the ops have not contested this case, the evidence given by the complainant remains unchallenged and/ or uncontroverted. A close consideration of this case record this District Commission finds that there is no reason to disbelieve the unchallenged evidence on affidavit filed by the complainant. On close scrutiny of the evidence given by the complainant it appears that the complainant has proved that the complainant has booked one flat in the suit property and at the time of agreement for sale the complainant has paid Rs. 2,00,000/- to the ops but the ops neither have handed over the said flat nor have refunded the said money. In view of this decision of Hon’ble Apex Court which is decided in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor and it is published in AIR2022 SC1824 this District Commission finds that the complainant is entitled to get back the advance money which has been paid to the ops. All the above notes factors are clearly reflecting that the complainant has proved his case in respect of points of consideration nos. 4 and 5. It is revealed that there is deficiency of service on the part of the op and there is also unfair trade practice on the part of the ops. So, these two points of consideration are decided in favour of the complainant.
In the result it is accordingly
ordered
that the complaint case being no. 170 of 2019 be and the same is allowed ex parte but in part.
It is held that the complainant is entitled to get refund of Rs. 2,00,000/- from the ops along with interest @ 9% per annum.
Opposite parties are directed to refund the said amount and interest within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.
In the event of nonpayment/ non compliance of the above noted direction the opposite parties are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.
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 and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
