This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that the opposite party took Rs. 3,80,000/- from the complainant for constructing commercial shop in the ground floor of proposed building and the opposite party also assured to hand over 300 sq.ft space in the third floor in the said building in the name of the complainant and his wife, Rakhi Ghosh. After a few days complainant came to know that all the papers relating to the land are fake. In the meantime the complainant paid a sum of Rs. 3,80,000/- in the account of opposite party and his nearest relative namely, Abhoy Bera. When the complainant came to know regarding the fake papers he asked the opposite party to refund the money amounting to Rs. 3,80,000/-. In assurance to refund the amount the opposite party issued a fake cheque of Oriental Bank of Commerce of Rs. 50,000/-. Then the complainants field an F.I.R. on that context. Thereafter the opposite party refunded him a sum of Rs.1,00,000/- on 30.05.2016. After elapsing six months the opposite party refunded a sum of Rs.1,80,000/- and also assured to refund the remaining amount within 2 months. Thereafter the complainant has been refused several times on lame excuse and the concerned police station no way helped the complainant.  

            Complainant filed the complaint petition praying directions upon the opposite party to pay sum of Rs.2,80,000/- and to pay a sum of Rs. 50,000/- for litigation cost and to pay a sum of Rs. 3,60,000/- with interest for last four years.

            The opposite party contested the case by filing written version denying inter-alia all the material allegations as leveled against him.  This opposite party submits that the opposite party made an agreement with the complainant on 3.4.2014 before the Notary Public in respect of the alleged property and the consideration amount of the said property which is agreed by both parties of Rs. 6,00,000/- and as per agreement the complainant paid sum of Rs. 3,80,000/- in 13 installments within the stipulated time fixed in the agreement i.e. 3.4.2016 out of full consideration amount which is Rs. 6,00,000/- and the complainant is failed to perform the terms of agreement which is made between the opposite party within a stipulated time and the contract which arise from the said agreement i.e. comes to an end due to the non performance of the said complainant within the fixed time and the complainant is liable to make compensation to the opposite party for loss arising due to non performance of the contract arising from the said agreement within stipulated time and the opposite party not to bound to deliver the earnest money to the complainant because of not able to perform the agreement by the complainant within fixed time i.e. why such contract become voidable but the opposite party due in course of humanity makes to refund the earnest money to the complainant of Rs.1,00,000/- on 3.5.2016 and also Rs. 1,80,000/- on 23.03.2018 out of Rs.3,80,000/- and the complainant also filed  an F.I.R. before the Singur P.S. vide case no. 205 of 2016 dt. 10.05.2016 u/s 420/406/506 of IPC and u/s 465/466/468 of IPC in respect of same cause of actions upon which the said complaint is made i.e. bad in law.

            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 and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version so it is needless to discuss.

            Complainant and opposite party filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite 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 is the consumer of the opposite party or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite party?
4. Whether the complainant is entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken together for easiness of the discussions of this case.

1. In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant here in is a consumer of the opposite party,
2. Both the complainant and the opposite party are residents/having their office addresses within the district of Hooghly. Compensation for mental agony and other expenses 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). The complainant in his written notes of argument averred that the complainant intended to purchase a flat from the opposite party. The complainant came to know that the schedule mentioned property of the flat is owned by one Pratima Barui. On enquiry the opposite party answered that the landlady will transfer the said property within a short time and showed a notarized agreement paper dated 07.10.2013 in between Anup Samanta and Smt Pratima Barui. The complainant believed at the words of the opposite party and agreed to purchase the  impugned flat cum shop on the 3^rd floor of the schedule mentioned property measuring about 300 sq ft at a consideration of Rs.6,00,000/- and entered into agreement with the opposite party on 03.04.2014. As per agreement the complainant paid Rs.1,00,000/- out of Rs.6,00,000/- to Anup Samanta on 08.06.2014. Thereafter he paid Rs.2,80,000/- in favour of the opposite party in 13 installments. Then he came to know that the opposite party with ulterior motive manufactured a few documents in relation to the schedule mentioned property. On repeated enquiry the opposite party admitted his guilt and promised to refund the advance money. Then the opposite party issued a cheque of oriental bank of commerce on 25.11.2015 of Rs.50,000/- in favour of the complainant but the said cheque was dishonored so the complainant lodged complaint before appropriate court of law for relief. Then the opposite party made an agreement to refund the advance money on 30.05.2016 to settle the financial dispute and  refunded  Rs.1,00,000/- out of Rs.3,80,000/- and also promised to pay rest amount of Rs.2,80,000/- within 8 months. When the opposite party did not refund the rest amount then the complainant several times requested to refund the same even after getting the advocate notice. So the complainant filed the instant case for reliefs as prayed for.

The opposite party in his written notes of argument assailed that the property of R.S. and L.R. dag No.878 under L.R. Khatian No.432/1 under J.L. no.51 under Mouja – Kismat Apurbapur village under P.S.- Singur, Dist- Hooghly area measuring about 0.030acre originally belonged to Pratima Barui, W/O- Late Bijan Barui of Bidyutpally, P.O. & P.S.- Singur, Dist.- Hooghly. The said Pratima Barui in her possession decided to develop the property by constructing multistoried building and for that reason she entered into an agreement with Anup Samanta S/O- Banamali Samanta of Bidyutpally , P.O. & P.S.- Singur, Dist.- Hooghly on 07.10.2013 and also given power to transfer the flat and shop room on the third floor of the constructing multistoried building. As per the aforesaid agreement said Anup Samanta obtained sanction plan from the local authority for constructing  multistoried building and also entered into contract with the intending purchaser and took advance for selling the shop room & residential flat. The complainant herein also one of the intending purchaser entered into oral contract/agreement with the developer Anup Samanta and according to the discussion said Srikanta Ghosh & Rakhi Ghosh proposed to purchase a flat on the 3^rd floor of the proposed construction and price shall be Rs.2000/- per sq ft and paid Rs.100000/- as advance money out of consideration money and developer granted a written bainanama dated 03.04.2014 in favour of the intending purchaser. When the construction of the apartment was completed then the developer requested the purchaser to pay the balance consideration price and to be ready to get the flat by registery and in reply the complainant paid the amounts as given schedule. The purchaser paid total Rs.3,80,000/- for the flat booked out of total consideration of Rs.600,000/-. All on a sudden the intending purchaser complainant Srikanta Ghosh entered into an agreement with the developer Anup Samanta on 30.05.2016 where the complainant clearly stated that he could not arrange the balance amount of total consideration price Rs.6,00,000/- and as such he approached to the second part of the agreement for cancellation of agreement and for returning back the advance amount. On the very date the developer Anup Samanta paid Rs. 1,00,000/- out of total advance of Rs. 3,80,000/- and subsequently paid Rs. 1,80,000/- by installment. The opposite party also averred that the complainant agreed to purchase the flat at his own will and paid the advance to the opposite party, but the imaginary story hatched by the complainant are false and fabricated. As the complainant clearly stated into the agreement dt. 30.5.2016 that due to his inability he could not arrange the balance amount as such he wanted to back out from the contract/ agreement/ baynama dt. 30.4.2014. Lastly, the opposite party stated that the complainant filed the instant case before the Forum on the false, fabricated and baseless against the opposite party developer and prayed to reject with exemplary cost.

          Photocopy of the bainanama speaks that the complainant and his wife and the opposite party entered into an agreement on 3.4.2014 to purchase a flat measuring 300 sq.ft. on the 3^rd floor of a flat to be constructed and developed by the opposite party by paying an advance amount of Rs.1,00,000/-. Complainant also files the photocopy of deposit slip of bank of Baroda in the name of Anup Samanta on different dates and different amounts. He also files the photocopy of bank details to substantiate his claim that he paid the advance money to the opposite party on different dates. The photocopy of agreement dt. 30.5.2016 speaks that the complainant and his wife Smt. Rakhi Ghosh entered into an agreement with the second part i.e. the opposite party for purchase of a flat on the 3^rd floor measuring 300sq.ft.@ Rs.2000/-per sq.ft. in a multistoried construction in LR plot no. 787, Khatian no. 432/1, JL no. 51 Mouza- Khismat Apurbapur, P.S.- Singur, Dist.- Hooghly. The first part i.e. the complainant and his wife paid total Rs. 3,80,000/- in different installments from 12.2.2014 to 20.9.2014 as advance out of total consideration of Rs. 6,00,000/- but subsequently he could not arrange the balance amount and approached the second part for cancellation of whereas for nonpayment of the said amount  of Rs. 3,80,000/- by the second part the first part lodged a complaint at Singur P.S. against the second part and on the basis of that complaint Singur P.S. started a P.S. Case being no. 205 of 2016 dt. 10.5.2016, but the second part paid a sum of Rs. 1,00,000/- out of said Rs. 3,80,000/- to the first part on 30.5.2016. The second part also agreed to pay Rs. 1,80,000/- after six months from that date and he shall pay the balance of Rs.1,00,000/- after 2 months thereafter. Thereafter the complainant served a demand notice dt. 9.2.2017 to the opposite party calling upon to make immediate payment of Rs.3,80,000/- in favour of the complainant along with interest @ 12% including legal cost of Rs. 1,00,000/- within 7 days from the date of receiving the letter. The opposite party also served a letter through his advocate dt. 29.01.2018 stating that the opposite party assured to refund the amount by installment and the date of meeting held on 21.12.2017. The complainant also preferred the recourse of Central Grievance Redressal Cell of Consumer Affairs Department, Khadya Bhawan, Kol.-700087.  The said authority directed the opposite party to attend a meeting to be held on 21.12.2017 with the written version on the basis of complaint lodged by the complainant. The letter dt. 21.12.2017 of Assistant Director, Consumer Affairs and FBP, Govt. of West Bengal depicts that the complainant and the Ld. Advocate of the opposite party appeared before the Central Grievance Redressal Cell and the representative of the opposite party assured to refund Rs.2,80,000/- to the complainant and prayed for some time. The opposite party was requested to refund the amount of Rs.2,80,000/- to the complainant through the bank draft at the next date of meeting held on 30.01.2018. The letter dt. 30.01.2018 of Assistant Director, Consumer Affairs and FBP, Govt. of West Bengal speaks that opposite party failed to refund the amount as agreed at the meeting held on 21.12.2017. So, the mediatory procedure failed due to non co-operation on the part of the opposite party. The complainant was requested to prefer complaint case before appropriate Consumer Forum or any other Court of law for adjudication.

         After perusing the complaint petition, written version, evidence on affidavit, BNA of both sides and the documents in the case record it is transparent that the complainant paid the advance money of Rs. 3,80,000/- out of consideration money of Rs. 6,00,000/- for getting a flat measuring 300 sq.ft. on the proposed multistoried building constructed and developed by the opposite party. The opposite party failed to deliver the flat-in-question within the statutory period of 2 years as agreed. Then the complainant entered into further agreement dt. 30.5.2016 to return back the advance money. On the very date of agreement dt. 30.5.2016 the opposite party refunded a sum of Rs. 1,00,000/- but the opposite party failed to refund the remaining amount of Rs. 2,80,000/- within the period agreed by the parties. So, the complainant runs from pillar to post like a shuttle cork for getting the remaining advance amount of Rs.2,80,000/- from the opposite party. But the opposite party never cared at the utterance of the complainant. So, the complainant getting no alternative preferred the recourse of this Forum praying directions as incorporated in the prayer portion of the complaint petition.

            After hearing the Ld. Advocate of the complainant and perusing the case record it appears that the complainant paid a sum of Rs.3,80,000/- to the opposite party for getting the flat-in-question proposed to be constructed by the opposite party developer. The developer received the impugned amount from the complainant and issued receipts on that context and it is crystal clear from the case record that the opposite party failed to hand over the flat-in-question to the complainant within the stipulated time and after the stipulated period the opposite party informed the Assistant Director, Consumer Affairs and FBP, Govt. of West Bengal to refund the balance consideration amount to the complainant within a short period. The complainant tried his best to get back the advance money from the opposite party as the opposite party failed to construct the flat as per agreement. Inspite of several requests from the complainant the opposite party failed to refund the advance amount of Rs. 2,80,000/- to this complainant.

            The act and attitude of the opposite party clearly speaks that he is deficient in providing service to the complainant as the complainant being the intending purchaser of the flat proposed to be constructed by the opposite party. The complainant being the consumer of the opposite party filed the instant complaint before appropriate Forum. The case record and documents reveals that the complainant tried his best to get the flat-in-question from the opposite party in default requested the opposite party to refund the advance money, but the opposite party remained silent at the utterance of the complainant. The complainant suffered at the behest of negligence and sheer avoidance on the part of opposite party. So, the deficiency of the opposite party is well established as such the complaint petition deserved to be allowed with cost and compensation.

            Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non delivery of the impugned flat & failed to refund the advance money by adducing cogent document/evidence so the prayers of the complainant are allowed  on contest. However, considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint petition is thus, disposed of accordingly.

ORDER

            Hence, it is ordered that the complaint case being no. 18 of 2018 be and the same is allowed on contest against the opposite party with a litigation cost of Rs. 8,000/-.

            The opposite party is directed to refund the advance money of Rs.2,80,000/- including interest @ 10% from the date of receiving the same from i.e. on 20.9.2014 till its realization within 45 days from the date of passing this final order.

At the event of failure to comply with the order the opposite party shall pay cost @ Rs.50/- 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 and necessary action.