Judgment : Dt.9.2.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Shaibal Giri and Mrs. Munmun Giri alleging deficiency in service on the part of the opposite parties namely (1) Sri Himadri Sekhar Saha, (2) Sri Achintya Banerjee.
The Complainants in their petition of complaint have stated that in search of a suitable accommodation the Complainant No.1 came in touch with the OP No.1 and came to know from him that he had started a business of development land with one partner being the OP No.2 and used to run their business under name and style as M/s M. S. Construction and at that pertinent point of time they were developing a premises at 92/1, Dr. Deodar Rahman Road, P.S.-Charumarket, Kolkata-700 033. The Complainant has further stated that the landowners executed a development agreement with the OPs on 292.5.2013 and also executed a registered power of attorney in favour of the OP No.1 on that very date and the same was registered in the office of the DSR-I at Alipore. It is further stated by the Complainant being convinced by the advertisement of the opposite parties as well as their promise the Complainants had decided to purchase a flat at the proposed building to be constructed at the said premises along with a car parking space and made payment of an amount of Rs.5,00,000/- to the OPs by cheque bearing No.225383 dt.15.4.2014 drawn on ICICI Bank in favour of M/s M.S. Construction against proper receipt issued. The Complainants have further stated that subsequently the OP No.1 sent a draft deed of agreement for sale to the Complainant No.1 for his approval with assurance that after completion of the said flat, possession of the same would be handed over and registration of deed of conveyance would be executed. It is specifically stated by the Complainants that thereafter no effective correspondence to the OPs had not been materialized. It is alleged that the OPs neither executed registration of deed of conveyance nor did refund the amount received by them from the Complainants. It is mentioned by the Complainants that no agreement for sale was executed by and between the parties. Accordingly, the Complainants have prayed for direction upon the OPs to refund the booking amount of Rs.5,00,000/- with interest @ 18% p.a., to pay Rs.4,50,000/- towards compensation and to pay Rs.30,000/- towards litigation cost.
Notices were served, but the OP No.1 though appeared did not file written version so the case was fixed for ex-parte against OP No.1 vide order No.7 dt.15.6.2017. OP No.2 contested the case by filing written version denying all allegations made out in the petition of complaint.
The Complainant and OP No.2 adduced evidence followed by cross-examination in the form of questionnaire and reply thereto.
In course of argument Ld. Advocates of Complainant and opposite party No.2 reiterated the facts mentioned in the petition of complaint and written version respectively.
Points for determination:-
- Whether the case is maintainable before this Forum
- Whether there is deficiency in providing service on the part of the OPs?
- Whether the Complainant is entitled to any relief as prayed for?
Decision with reasons
Point No.1 : The Complainants claimed to have paid Rs.5,00,000/- to the OPs towards part payment of consideration of a flat to be constructed by the OPs. The Complainants themselves stated that no agreement for sale has been executed by and between them and the OPs. As per Section 2(1)(g) of the C.P.Act deficiency means “any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner or performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.
In the instant case since no agreement for sale was executed it is not possible to determine that whether the OPs deviated from any promise. Further, relying upon the decision of Hon’ble NCDRC was reported in 2012(1) CPR 229(NC) [Birendra Kumar Srivastava vs Ajay Girish Verma] wherein their Lordships pleased to hold that complaint can be dismissed on the ground of absence of any written contract between the parties we are of opinion that the instant case is not maintainable before this Forum.
Point No.I is decided accordingly.
Point Nos.2 & 3 : Since point No.1 decided negative, there is no use to discuss point Nos.2 & 3.
Hence,
ordered
That CC/176/2017 is dismissed being not maintainable but without any order as to costs.
Complainants are at liberty to approach the appropriate court of law.
