DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 208/2016
Date of Filing: Date of Admission Date of Disposal:
04.04.2016 18.04.2016 29.05.2017
Complainant = Vs. = O.P.
Sri. Madhusudan Paul, Sri. Dilip Deb
S/O Late Brindaban Paul S/O Late Anil Chandra Deb
Represented by: Sri. Mrinal Kanti Paul
2,M.B.Road, Proprietor of Sri Ram Construction
Belgharia, P.S: Belgharia,
Kolkata-700056 Office cum Resi: 3/3, M.B. Road,
P.S: Belgharia, Kolkata-700056
P R E S E N T : Sri. Pradip Kumar Bandopadhyay ………………..President
: Sri. Siddhartha Ganguli………………………………Member
:-Smt. Kabita Acharjee(Goswami) ………………… Member
J U D G E M E N T
Brief facts of the case of the complainant is that in pursuant to an agreement for sale held between the complainant and the O.P dated. 10th December,2005 the complainant booked one shop in the premises No: 2, Madhusudan Banerjee Road, P.S: Belgharia, Kolkata-700056,under Mouza:Belgharia,J.L No: 3, R.S No: 17,Touzi No: 172, R.S Khatian No: 24, R.S Dag No: 1614, Municipal holding No: 2116, Within the jurisdiction of Belgharia P.S, Within the local limits of Kamarhati Municipality in Ward No: 33,under Dist:-24Parganas(N), A.D.S.R.O office at Cossipore Dumdum from the O.P and it was agreed by the O.P that he, being a promoter/developer of the said property would construct a building over the land i.e for residential flats, shop rooms, garage etc. and after completion he would give the possession of the shop room within the stipulated period of time in Block-2, measuring about 177 sq.ft in the Ground floor (South and west side)to the complainant and execute the sale deed .
Dictated & Corrected by me Cont/-2
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It is contended by the Complainant that he was a tenant of the Landowner and in the schedule mentioned property he had a shop thereon and as the O.P developer intended to build a building on the schedule mentioned property and willing to accommodate the Complainant in the said newly constructed building he assured to give a pucca shop room of the same carpet area which he had been in possession prior to the construction to the Complainant and a written agreement had been made between the Complainant and the O.P developer in that regard on 10.12.2005 and it was agreed by the parties that the O.P developer would bear the cost of shifting and during the construction period he would pay Rs.13,000/ per month to the Complainant for the purpose of loss of his business for the intervening period.
It is further contended by the Complainant that the “consideration” has been fixed by the said agreement should be the transfer charge and loss of business for shifting the shop room till he is back to his original place and both the parties have consented to it and therefore the agreement is valid and enforceable in law and the complainant stated that he performed his part in view of the said agreement and the O.P also handed over the possession of the said shop to him.
But the main contention of the complainant is that the O.P did not execute the sale deed in favor of the complainant and adopted dilly-dallying tactics, though the complainant on a numerous times requested him to execute the sale deed .He further stated that the O.P is duty bound to execute the sale deed as per the agreement dated. 10.12.2005.
It is further contended by the complainant that the O.P violated the terms and conditions of the agreement and adopted unfair trade practice with some ulterior motive and avoiding the complainant, though the complainant is still ready and willing to get the shop room registered from the O.P .It is the allegation of the complainant that he O.P is/was negligent and deficient in providing service by not executing the sale deed in terms of the agreement as stated above and for his negligent act and deficient service towards the complainant, the complainant has suffered mental pain and agony and was compelled to lodge this case before this Forum for proper redressal.
The complainant along with his complaint filed the relevant documents as per annexure, which are as follows:-
- Copy of agreement dated 10.12.2005 made between the parties consisting of 5 pages, in which on the 3rd page transactions have been recorded.
Dictated & Corrected by me Cont/-3
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The notice was sent to the O.P and the O.P appeared at this Forum through his Advocate. But the O.P remained absent on subsequent dates and did not file W/V and accordingly an ex-parte order was passed against him ..
During hearing the Complainant filed written examination-in-Chief and submitted the relevant documents. He also submitted written argument.
Considering the Complaint petition, document annexed, evidence adduced by the Complainant as well as hearing of the complainant, the following points have been framed:-
- Is the complainant a consumer?
- Is the case maintainable in this Forum?
- Was the O.P deficient in service towards the Complainant ?
- Is the complainant entitled to get any relief or reliefs as prayed for?
Decision with Reasons
All the points have been taken together for the sake of brevity and for avoidance of repetition of facts.
It appears from the materials on record that the complainant in this case has booked a shop room in the schedule mentioned property as stated above from the O.P and an agreement for sale has been done by the parties on 10.12.2005 and as per such agreement the O.P was willing to accommodate the Complainant in the newly constructed building and he assured to give a pucca shop room of the same carpet area which he had been in possession prior to the construction to the Complainant, as the Complainant was a tenant of the Landowner and a written agreement had been made between the Complainant and the O.P developer in that regard on 10.12.2005 and it was agreed by the parties that the O.P developer would bear the cost of shifting and during the construction period he would pay Rs.13,000/ per month to the Complainant for the purpose of loss of his business for the intervening period.
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It is further stated by the Complainant that the “consideration” has been fixed by the said agreement should be the transfer charge and loss of business for shifting the shop room till he is back to his original place and both the parties have consented to it and therefore the agreement is valid and enforceable in law
and the complainant stated that he performed his part in view of the said agreement and the O.P also handed over the possession of the said shop to him.
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We have carefully examined the complaint petition, affidavit-in –chief, documents of the complainant and written argument filed by the Complainant.
In order to be a Consumer, as defined U/S 2(1)(d) of the C.P Act,1986, the Complainant must have availed of the service of the O.P after payment of consideration. Here in this case the Complainant has not paid any sum of money to the O.P for the purchase of the shop room from the O.P, rather he has been paid by the O.P for the purpose of shifting charge and the loss amount sustained by him during the construction period.
Now the question arises whether such amount which the O.P paid to the Complainant can be treated as consideration. Nowhere in the C.P. Act the term “Consideration”has been defined. So, we have to take recourse to the Indian Contract Act,1872 in order to justify the term “consideration” where it has been defined. According to the said Act [Sec-2(d)] when at the desire of the promisor the promissee or any other person has done or abstained from doing or does or abstains from doing or promises to do or to abstain from doing something such act or abstinence or promise is called a consideration for the promise.
It is therefore clear that the basic feature of the doctrine of consideration is that something valuable in the eye of law must be given in a promise in order to make it enforceable as a contract. The consideration may either be in terms of money or in kind and further it may proceed from either side.
We have scrutinized the agreement dated 10.12.2005 and found that the consideration is present there and thus the agreement is matured into a valid contract.
Again the question arises if consideration was present and the O.P paid the charges and other amount as stated above, what the complainant gave in order to honour the agreement. Here in this case the complainant gave the peaceful vacant possession of his shop room to the O.P for the purpose of making a
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building and in lieu thereof the O.P agreed to pay him and assured to give newly constructed shop room and therefore they entered into an agreement dated 10.12.2005 and in terms of the said agreement the O.P handed over the possession of the shop to the Complainant. Here we hold the view that the vacant possession of the shop room of the complainant, which he handed over to the O.P in order to make a building thereon and to get a shop room in the building ,is the consideration on the part of the Complainant and taking this view as well as considering the wordings given in the definition of Consumer U/S-2(1)(d) of the C.P.Act,1986 and preamble of the C.P Act,1986 we can safely say that the complainant is a consumer and the dispute between the parties is a consumer dispute .
Both the parties are residing within the territorial jurisdiction of this Forum and the value claimed/relief claimed within the limits of this Forum and the cause of action has arisen within the jurisdiction of this Forum and it is continuing and hence we hold the view that the case is well maintainable in this Forum
The crux of the matter is that though the O.P handed over the possession of the shop room to the Complainant, he did not execute the sale deed despite repeated requests and therefore, we hold the view that the O.P caused deficiency in service towards the Complainant by not executing the sale deed in terms of Sec-2(1)(g) of the C.P.Act,1986.
Had the O.P executed the sale deed as stated above within the time, the Complainant would not have approached this Forum and filed this case in order to get redressal. Here the O.P was negligent and deficient in service towards the Complainant and hence in our view the O.P should execute the sale deed forthwith and it is his moral as well as his contractual obligation to do it.
As the O.P did not execute the sale deed within the stipulated time and also after repeated request made by the Complainant, we hold the view that such type of attitude is very detrimental to the general innocent consumers at large. The nonperformance of the O.P to execute the sale deed was intentional which created mental pain and agony to the mind of the Complainant and hence the O.P should compensate him.
The O.P entered his appearance before this Forum through his Ld. Advocate but on subsequent dates he remained absent and as such an ex-parte order was passed against him. He did not even bother to appear and file written version in connection with the case. Here he lost his opportunity to deny the allegations levelled against him by the complainant and he could have proved his case .
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Considering the nature of the case we think that a sum of Rs.10,000/ is just and appropriate to fix as compensation. In addition to that an amount of Rs.2000/ has been fixed as litigation cost and the O.P should pay the same to the Complainant.
Hence, all the points have gone in favor of the Complainant and the case of the complainant has therefore, succeeded.
Hence, it is
Ordered
That the Complaint be and the same is allowed ex-parte against the O.P but in part with cost.
O.P is directed to execute the sale deed of the shop room as stated in the schedule of the Complaint petition in favour of the Complainant within 30 days from the date of this order.
O.P is further directed to pay a sum of Rs.10,000/ as compensation and Rs.2,000/ as litigation charge ,total Rs.12,000/ to the Complainant within 30 days from the date of this Order, failing which the entire amount shall carry an interest @6% p.a till realization.
Let free copies be given to the parties concerned.
Member Member President
Dictated & Corrected by me.
