Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 250/2019

The complainant has instituted this complaint case against  the OPs for the purpose of getting refund of Rs. 7,00,000/-  which is the advance money alongwith interest @  Rs.  18%  per annum  and also for awarding compensation to the tune of Rs. 3,00,000/- and litigation cost of Rs. 10,000/-.

Fact of this case

Case of the complainant

The  case of the complainant which is deciphered  from the petition of complaint  in bird’s eye view  is that the OP No. 1 is the developer and the constituted attorney  of OP Nos. 2 to 4  (Land Owner) in respect of the property measuring  about 2 Cottah  at Holding No. 132/9, Narasingha Dutta Road, P.O. Kadamtala, P.S. Bantra, Dist. Howrah and  on 12.10.2015 the OP No. 1 entered into a Development Agreement  with OP Nos. 2 to 4  the OP Nos. 2 to 4  also executed and registered power of attorney  in favour of the  OP No. 1  and by virtue of the said power of attorney  the OP No. 1 has obtained power to look after, control, manage, supervise, develop the property as well as to enter into  an agreement of sale with intending purchaser .  It is stated by the complainant that on 15^th day of September, 2016 the complainant entered into an agreement  for sale for purchasing a self-contained  fully finished flat of the proposed  building at the 2^nd floor measuring about 639 sq. ft. including  20% super built up area at the above noted Holding No. 132/9 Narasingha  @ Rs. 3,400/- per sq. ft. at a total consideration money of Rs. 21,72,600/- and according to the agreement for sale the complainant paid Rs. 7,00,000/- part by part  on a several dates from 17.02.2016 to 29.10.2016 and as per said agreement for sale the OP No. 1 was supposed to deliver the said fully finished flat  within 12 months from the date of execution  of the said agreement for sale.  It is alleged that on several occasions the complainant requested the OPs either  to complete the said flat or to refund the advance money but they did not give any reply and the complainant  with a hope remained silent  of the said advance money  but the OPs neither paid  the advance money nor constructed the said flat  within stipulated period of time.  It is submitted by the complainant side that whenever the complainant asked  the Ops  to refund the earnest money of Rs. 7,00,000/- but they did not entertain the complaint and the OPs convinced the complainant  as the said flat  is not ready for delivery and as such the Ops proposed the complainant to take another flat in the said project and the OPs would be able to deliver the said flat within 3 months and accordingly the Ops convinced the OP to make payment in the new flat which would be able for delivery within 2 months  and accordingly the complainant entered into another agreement on 20^th December, 2017 for purchasing the flat in the  said project of same measurement  at the same floor  but ultimately the OPs failed to complete the said flat and also failed to refund the advance money  to the complainant.  For all these reasons the complainant has instituted this case against the OPs for getting refund advance money at Rs. 7,00,000/- alongwith interest  @ 18% per annum and also for awarding  compensation  and payment of litigation cost.

Defense Case-   The  OP No. 1 after entering appearance constituted this case  by filing W/V and denied each and every allegations which have been highlighted in the  complaint petition against  the OPs.  This specific case of the OP No. 1 is that the instant case is a counter blast of the complainant of Case No. 473 C of 2018 pending before the Court of Ld. 6^th Judicial Magistrate , Howrah which is filed by the OP No. 1  against the complainant u/s 138 of N.I. Act.  It is submitted that since 12^th February, 2018 there is no relation in between complainant and answering OP as consumer  and service provider.  It is also submitted that the Bank had paid Rs. 7,00,000/- in cash on different dates to the answering OP against proper money receipts  and one agreement for sale was executed  on 15.09.2016 but the same was notarized  on 24.08.2017 but as per advise of Bank Manager, IDBI Bank, Howrah Branch and complainant  & OP No. 1 cancelled / destroyed  the said agreement for sale on 18.11.2017 as the complainant paid most of the advance money in cash to the OP.  It is pointed out by the OP No. 1 that before destroying  the said agreement for sale both the petitioner and OP No. 1 had kept the Xerox copy of agreement for sale which was earlier executed.  It is pointed out by OP No. 1 that another agreement for sale was executed in between the complainant and OPs and the complainant had given cheque drawn  on IDBI Bank, Howrah Branch on different dates and thereafter  another agreement for sale was executed and registered  on 12^th February 2018.   It has been submitted by the OP No.1  that due to  advice the then Manager of IDBI Bank, Howrah Panchanantala Branch said agreement for sale dtd. 15.09.2016 was cancelled / destroyed  with the consent of both sides on 18.11.2017.  It is pointed out that the agreement for sale dtd. 15.09.2016 was duly cancelled on 18.11.2017 and as such the complainant is not entitled to get relief  on the basis of the said agreement.  It is alleged by the OP No. 1 that the OP No. 1 has already returned back of Rs. 7,00,000/- to the Bank and the Bank also returned back money receipt  which was given by the OP No. 1.  For all these reasons  the OP No. 1 has prayed before this District Commission for dismissing this complaint case with heavy cost.

The OP Nos. 2 to 4 received the notice  from this District Commission but in spite of receiving notice the Op Nos. 2 to 4  have not  appeared  and they also have not filed any W/V.  As a result of which this case is running exparte against  Op Nos. 2 to 4.

Points of consideration

On  the basis of the pleadings of parties , this District Commission for the purpose of arriving at just and proper decision and also for the interest of proper and complete adjudication  of this case is going to adopt the following points of consideration :-

(i)        Is this case maintainable in its present form and in the eye of law?

(ii)       Has this District Commission  jurisdiction to try this case?

(iii)      Whether the complainant is a consumer under the OPs or not?

(iv)      Whether the complainant has any cause of action for filing  this complaint case ?

(v)       Is the complainant entitled to get the award for getting refund of Rs. 7,00,000/- from the OP No.1 alongwith  interest @ Rs. 18% per annum or not?

(vi)      Is the complainant entitled to get compensation and litigation cost in this case or not?

Evidence lying of this case record

The complainant in order to prove the case has filed / submitted evidence on affidavit and against the said evidence on affidavit the OP has filed interrogatories and the complainant has also given reply against the said interrogatories.

            On the other hand in order to defend the case the OP No. 1 has not filed evidence on affidavit

            The OP Nos.  2 to 4   have not filed  any evidence on affidavit in this case

Argument  highlighted  by both sides

In course of argument the complainant side  has filed Brief Notes on Argument and in addition to submission of Brief Notes on Argument  Ld. Advocates  of Complainant side & OP No. 1 also have highlighted their verbal submission.

In course of verbal argument  both parties relied on the evidence on record.

Decision with reason

The  questions and / or issues involved in the above noted points of consideration adopted in this District Commission for deciding the fate of this complaint case are interlinked  / interconnected with one another.  For that reason and also for convenience of discussion all the points of consideration clubbed together and taken up for discussion jointly .  For the purpose of arriving at just and proper decision in this case  there is urgent necessity of making scrutiny  of the material of this case record as well as  there  is also urgency for scanning the evidence on record.

After making scrutiny of the evidence on record  this District Commission finds  that the complainant has totally  suppressed the fact of pendency of the Criminal Case being No. 473C of 2018 before the Ld. Judicial Magistrate 6^th Court , Howrah which has been filed by OP No. 1 against the complainant u/s 138 of N.I. Act.  This matter is clearly indicating  that the complainant has not come before this District Commission in clean hand and for that reason the complainant is not entitled to get any equitable relief from this District Commission.

After going through the material of this case record this District Commission finds that the complainant had paid Rs. 7,00,000/- to the OP No. 1 against money receipts but as per advise of IDBI Bank, Panchanantala Branch, Howrah the complainant and OPs cancelled the said agreement for sale which was executed on 15.09.2016 and notarized  on 24.08.2017 and the said agreement for sale was destroyed .  This matter has also been suppressed  complainant side.  This fact is also indicating that the complainant has not come before this District Commission in clean hand and so the complainant  is not entitled   to get any equitable relief.

It is also revealed from the evidence on record  that as per advise  of Branch Manager, IDBI Bank, Panchanantala Branch, Howrah the complainant and OP No. 1 entered into a fresh agreement  and complainant had paid  Rs. 7,00,000/- by way of cheque  of IDBI Bank, Panchanantala Branch, Dist. Howrah and against the said cheque the OP No. 1 initiated the above noted Criminal Case against the complainant.

When the first agreement for sale which was executed on 15.09.2016 and notarized  on 24.08.2017 the relationship of consumer and service provider in between  complainant and OPs have been seized  and / or cancelled.  This matter is clearly indicating  after cancellation of the said agreement for sale  the complainant  was no longer a consumer  under the OPs.

When the complainant is not a consumer under the OPs, this case is found not maintainable and the complainant has not approved  any right or cause of action  for filing of this complaint case.

It is also revealed  from the evidence on record that  the OP No. 1 has already refunded  the advance money of Rs. 7,00,000/-  to the complainant  and complainant also returned back the money receipts  to the OP No. 1.

A cumulative consideration of the above noted discussion goes to show the case is not maintainable, the complainant is not at all a consumer under the OPs, the complainant has no case of action for filing this case and the complainant is also not entitled to get refund of Rs. 7,00,000/-  from the OP No. 1 alongwith interest  @ of  18% per annum.

In the light of the observation made above this District Commission has no other alternative  but to dismiss this complaint case.   

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 250/2019 be and the same is  dismissed  on contest.  No order is passed as to cost.

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of this District Commission.

Dictated & corrected by me

  President