Case No. CC/ 59/2021
Final Order/Judgment
Sudeb Mitra, President:-
The gist of the complaint case is that the complt. Sulekha Das had decided to purchase one self contained residential flat, being flat no 1B so having the super built up area of 980 Sq feet approximately lying on the south east of the first floor of G+6 stored building together with all common facilities and amenities attached there to and available therewith situated in that floor of G+6 stored building, situated in L.R plot no 176 and 177, Mouza- Keranitola, under P.S. Medinipur, Dist.- Paschim Medinipur, from the O.P. of this complaint case Sarfaraj Nawaj Khan, since he was developing and constructing G+6 construction in that L.R. plots. The consideration price was 29,40,000/- and an agreement of sale was executed on 20.02.2019 in between the parties of this complaint case on condition that the O.P. would deliver the possession of that flat to the complt. within the 10(ten) months.
This appears from the case record that the complaint by adducing evidence pressed that she had paid Rs. five lakhs to the O.P. by issuing two cheques dt 20.02.2019 and 08.03.2019 towards the O.P. and thereby categorized herself, as she (complt.) asserts, as a consumer under the O.P. in respect of sale of the flat, as described above, in this order.
It is the specific contention of the complt. that since the O.P. had failed to deliver the possession of that flat to the complt. within the stipulated time, as contained in the sale agreement dt. 20.02.2019 entered into by the complt. and the O.P., the complt. did not intend to proceed further with that agreement and the same was terminated by the O.P. on 04.02.2020 and the O.P. had given undertaking that he would return the said amount of payment made to him by the complt., at the time of her entering into agreement of sale of that particular flat, with the O.P. i.e. Rs 5,00,000/-(Five lakhs) only. It is also complt’s case that out of that amount of Rs five lakhs, the O.P. had paid her back Rs fifty thousand by issuing a cheque.
It is the complt’s case that the O.P. had not paid her back Rs. Four lakhs and fifty thousand i.e. (Rs.5,00,000 – Rs.50,000 = Rs.4,50,000/-) as yet and for that she had requested him time and again and for that reason, she had issued lawyer’s letter dt.22.3.21 to the O.P., asking the O.P. to return her Rs.4,50,000/- due from him (O.P.) in her (Complainant) favour. In reply
Contd …3
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O.P. had sent his lawyer’s letter dt.8.4.21addressed to the complainant’s lawyer for requesting her to provide the O.P. sometime, to return her back Rs.4,50,000/-.
The case record reveals that since the complt. was not given back the said amount by the O.P., so the complt. has filed this complaint case and sought for reliefs, as stated in the prayer portion of her complaint petition, filed by her in this complaint case.
It appears from the case record, that after the filing of this complaint case, on filing of requisites by the complainant, as directed, the O.P. was duly summoned vide notice dt.17.9.21, to appear before this D.C.D.R.C, Paschim Medinipur on 7.10.21, in respect of this complaint and to file W.V. from his end in respect of this complaint, but the O.P. refused to receive the summons on 20.9.21 as the endorsement of postal-man reflects in the summons containing envelope. So, the complaint case is heard exparte.
It appears from the case record that the complt. filed examination-in-chief on affidavit, furnished her Ld. Advocate’s notice dt.22.3.21 sent from her end to the O.P., the letter dt.8.4.21 sent from the Ld. Lawyer for the O.P’s end, in reply to the complt’s advocate’s letter.
Besides the complainant furnished the Xerox copy of the agreement of sale of the flat in question dt.20.2.19 entered into by her with the O.P. and copy of declaration dt.4.7.20 given from the end of the O.P. declaring that O.P. would pay back Rs.5,00,000/- to the complainant, as the complt’s booking for the flat and relevant agreement stood cancelled.
In this backdrop, since the O.P. has not contested in this complaint case, inspite of being duly summoned, this complaint case heard exparte.
POINTS FOR DETERMINATION / ISSUES
On the basis of the available materials on record, the following issues are framed to reach the decisive conclusion.
- Whether the complainant is a consumer as per the scopes and relevant provisions of the C.P.Act,1986 ?
- Whether this Forum/Commission has jurisdiction to deal with this complaint and determine its end result in this Forum ?
- Whether there is deficiency in service on the part of the O.P. towards the complaint ?
- Whether the complainant is entitled to get the relief or reliefs, as prayed for ?
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DECISION WITH REASONS
Issues No.1 & 2:-
These two issues are taken up at first for convenience and brevity and for inter relativity of these issues with each other. Having regard to the materials on record, nature of complaint, locus standi of the parties to this complaint against each other and their respective roles in respect of the transaction entered into by them with each other, I filed complt. was consumer as per scopes of the C.P. Act and having regard to the addresses of the parties to the agreement and this complt. , I also find that this commission has jurisdiction to deal and decide this issues of this complt. case. So, both these two issues are decided in favour of the complt.
Issues No. 3 & 4:-
At this stage remaining two issues, as referred above, are taken up for discussion to avoid prolixity and for convenience. The evidence on record adduced from the end of the complainant side, her filed Xerox copy of agreement of sale dt. 20.02.2019, entered into by her with the O.P. for her purchasing the O.P’s developed flat in the plot(L.R.)no 177 and 176 of Mouza – Keranitola, under P.S.- Medinipur, Dist,- Paschim Medinipur, her filed lawyer’s letter dt. 22.03.2021, and letter of the O.P’s lawyer dt. 08.04.2021 given in reply to her letter dt 22.03.2021, her filed O.P’s declaration dt. 04.07.2020, Lend convincing ground to hold, in the absence of any cogent evidence of the O.P. to the contrary, that she (complt.) had entered into agreement with the O.P. on 20.02.2019 to purchase the plot, as described in this judgment for her and it also appears that the complt. had paid the O.P. Rs-Five lakhs for that flat and that the O.P. couldn’t complete the construction of that flat within the stipulated time span of 10 (ten) months as referred in the said agreement dt. 20.02.2019 and these all lend ground to hold that, since there was non-compliance of the stipulations of the agreement of sale of the plot from the end of the O.P., at the cost of the complt. and her money paid to the tune of Rs- 5,00,000/-, so there was deficiency of service on the part of the service provider i.e. O.P. towards the complt. i.e. the Consumer, in this complaint case.
It reveals further that out of Rs- Five lakhs paid to the O.P., from the end of the complt., she could get back only Rs- Fifty thousand from the O.P. till now and for that she (complt.) is entitled to get appropriate relief.
As per Sec 69 of the C.P. Act 2019, this complaint is filed in time within the specific time, since the time of arising of the cause of action of this complaint case. Thus I find both these two issues also go in favour of complt. Contd …5
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Accordingly, all the issues are thus decided in favour of the complt. and the same are all thus disposed of exparte.
Proper fees are paid since bankers’ cheque of Rs- 500 vide SBI cheque no 440506 dtd. 21.05.2022 is furnished with by the complt.
Hence it is…
ORDERED
That the instant complaint case be and the same is allowed exparte against the sole O.P. of this complaint case with a litigation cost of Rs- Five thousand only to be paid by the O.P. towards the complt. within Forty five (45) days from this date of order.
The complt. is entitled to get Rs- Four lakh and Fifty Thousand from the O.P. who shall in this complaint case, pay the same within Forty five (45) days from this date of order.
The complt. is entitled to get Rs- One lakh for the deficiency of service caused by the O.P. towards her in this complaint case. O.P. shall pay up that amount towards the complt. within Forty Five(45) days from this date of order.
Accordingly O.P. of this case is directed to pay Rs- Five thousand + Four Lakh and Fifty thousand +One lakh only in total by A/C payee cheque, in the name of the complainant within Forty Five (45) days from this date of order, failing which the total amount as referred above will carry interest@9%(Nine) P.A. from the date of filing of this complaint case i.e. from 21.04.2021 till realisation of the same from the O.P.
The complt. shall be at liberty to put this final order of this Commission into execution, according to law, for realisation of the amount as referred here, if the O.P. fails to comply with this order, within the stipulated time as referred in this judgment.
Let the copies of this judgment be served upon the parties of this case free of cost, against proper receipts, If the O.P. doesn’t take/collect the copy of this judgment, serve the same upon him, free of cost by speed post/registered post at the cost of Govt. ex-chequer, in his address, as reflected in this complaint case.
Member Member President
District Commission
Paschim Medinipur
