DATE OF FILING : 14/05/2014
DATE OF S/R : 20/10/2014
DATE OF FINAL ORDER : 21/09/2015
Sri Tapan Kumar Chatterjee @ Cattopadhyay,
son of late Monotosh Chaterjee,
residing at 63/1/A, Nabin Senapati Lane,
flat no.101 ( 1st floor ), P.S. Shibpur,
District Howrah……………………………………...……………….. COMPLAINANT.
Sri Jayanta Kumar Das,
son of late Khagendra Nath Das,
791, Sarat Chatterjee Road, P.S. Shibpur,
District Howrah, PIN 711102,
and also having its office at Howrah Improvement Trust
( Fund & Pension Department ),
19, G.T. Road, Howrah,
PIN 711101.……………………………………………………….…OPPOSITE PARTY.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- Complainant, Tapan Kumar Chatterjee, by filing a petition U/S 12 of the C .P. Act, 1986 ( as amended up to date ) has prayed for a direction to be given upon the o.p. to refund Rs. 7,60,000/- so paid by the complainant with interest @ 12% p.a. till recovery or alternatively to execute and register the deed of sale in favour of the complainant after receiving payment of balance consideration amount along with cost and compensation and other relief or reliefs as the Forum may deem fit and proper.
- Brief fact of the case is that complainant entered into an Agreement for Sale with respect to a residential house situated at 791, Sarat Chatterjee Road, Howrah, as stated under the schedule of the said Agreement Dt. 12/05/2010 on payment of an advance amount of Rs. 6,50,000/- vide annexure. Subsequently on 26/05/2011, one Supplementary Agreement was executed by and between the parties which is the continuation of the earlier agreement vide Annexure and here complainant further paid Rs.1,10,000/-. So, out of total consideration amount of Rs.15,60,000/-, complainant paid Rs.7,60,000/- in total towards advance payment. It was also agreed that O.P. shall execute and register the Sale Deed in favout of the complainant within 31/07/2011 on receipt of the rest consideration amount being Rs.8,00,000/-. Accordingly, complainant requested the O.P. to take the balance amount and do the needful and he also purchased the required stamp paper. But o.p. remained totally silent in spite of knowing fully well that complainant had already purchased the stamp paper. Being compelled complainant lodged one F.I.R. on 15/09/2011 with local police authority haring registered as 465 of 2011 before the Chief Judicial Magistrate, Howrah. The criminal case is still pending. O.P. also executed one promisory note on 23/06/2011 stating therein that if he fails to execute and register the Sale Deed in favour of the complainant by 31/07/2011, he shall repay the advance amount of Rs.7,60,000/- to the complainant. Even then O.P. did not care to discharge his part of the duty whereby it caused severe mental, physical harassment and financial loss to the complainant. So, being frustrated and finding no other alternative, complainant filed this instant case with the aforesaid prayers.
- Notice was served up on the O.P. O.P. appeared and filed written version. Accordingly, case was heard on contest.
- Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.P. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- Both the points are taken up together for consideration. We have carefully gone through the written version and noted its contents. It is the specific plea of the O.P. that since ld. Civil Judge (Jr. Div), 2nd court, Howrah, vide his order dt. 14/11/2011 in T.S. case No 189 of 2011, has observed that the complainant’s remedy is to file a case for specific performance of contract or a suit for part performance of contract as the dispute between the parties is merely based on the performance of agreement for sale. So, it lies only before the competent court of civil Jurisdiction.
6. Here we take a pause perhaps O.P. has forgotten the provisions of Section 3 of the Consumer Protection Act, 1986 which states that if there be a consumer dispute, complainant can very well file a consumer case. In this case, complainant advanced a certain amount to buy a residential house with a promise to pay the balance amount on the date of registration of sale deed. O.P. failed to discharge his part of duty which is nothing but severe deficiency on his part. He also knew that complainant already bought stamp paper by paying Govt. duty of huge amount. But he did not register the sale deed which really caused inexplicable mental agony and physical harassment along with huge financial loss to the complainant. Who will compensate this except O.P.? Ultimately complainant sent lawyer’s notice on 29/03/2014 to the O.P. which was also received by him. Still he kept quiet.
7. It is to be kept in mind that complainant made the advance to purchase a house for his own purpose to stay along with his family members. We all know that it is a basic need for all living animal, not to speak of human being. O.P. showed gross negligence towards the complainant. So, we are of candid opinion that it is a fit case where the prayers of the complainant shall be allowed. Points under consideration are accordingly decided.
Hence,
O R D E R E D
That the C. C. Case No. 277 of 2014 ( HDF 277 of 2014 ) be allowed on contest with costs against the O.P.
That the O.P. is directed to execute and register the sale Deed with respect to the scheduled property in favour of the complainant within one month from this order i.d. Rs.50/- per day shall be imposed upon him till actual registration. Complainant to pay the balance amount being Rs.8,00,000/- on the date of registration and he is to bear the cost of registration.
That O.P. is further directed to pay on amount of Rs.1,00,000/- as compensation and Rs.25,000/- as litigation cost to the complainant within one month from the date of this order i.d. the entire amount of Rs.1,25,000/- shall carry an interest @ 9% p.a. till actual payment.
The complainant is at liberty to put the final order into execution after expiry of the appeal period.
Supply the copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( Jhumki Saha )
Member, C.D.R.F., Howrah.
