DIST. CONSUMER DISPUTES REDRESAL COMMISSION
NORTH 24 Pgs., BARASAT.
C.C. No. 379/2018
Date of Filing Date of Admission Date of Disposal
12.09.2018 25.09.2018 01.12.2023
Complainant/s:- | SRI. SWAPAN SAHA, S/o Lt. Dinesh Chandra Saha, Resident of Madhya Banamalipur, Itakhala Road, P.O. Agartala, P.S. East Agartala, Distric: West Tripura, Pin:799001. =Vs= |
Opposite Party/s:- | SRI MRITYUNJOY PAL, (Owner cum Developer), S/o Sri Manik Lal Pal, Resident of Paikpara, North Nimta (Lenin Sarani), P.O. & P.S. – Nimta, Kolkata – 700049, District – North 24 Pargana. Presently Residing at Madhya Banamalipur, Itakhala Road, P.O. Agartala, P.S. East Agartala, District – West Tripura, Pin – 799001. |
P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT/FINAL ORDER
Complainant above named filed this complaint U/s 12 of the Consumer Protection Act, 1986 against the aforesaid Opposite Party praying for direction to refund Rs. 5,00,000/-, compensation amounting to Rs. 4,00,000/-, cost of the case amounting Rs. 20,000/-, additional amount of Rs. 50,000 and other reliefs.
He alleged that O.P is a developer-cum-land owner. Complainant expressed his intention to purchase a flat from the O.P with the consideration of Rs. 10,00,000/-. Complainant paid the same. O.P claimed further amount of Rs. 5,00,000/- for completion of final construction work and for interior work and Complainant agreed the same and paid the said amount. Thereafter, O.P executed one sale-deed in respect of the aforesaid flat in favour of the Complainant. But O.P registered the sale-deed in favour of the Complainant in respect of aforesaid flat and delivered the possession in favour of the Complainant. But O.P after receipt of additional amount of Rs. 5,00,000/- not yet completed the interior work. As a result present dispute has arisen. Complainant requested so many times to the O.P to complete the interior work or to refund the said amount of Rs. 5,00,000/- but O.P did not pay any heed. Thereafter, Complainant sent a legal notice to the O.P through his advocate on 14/02/2018 but after receipt of the same, o.p assured the Complainant that he will complete the work within next two (02) months and also pay the amount of Rs. 50,000/- in favour of the Complainant. But O.P did not comply the same hence this case.
O.P appeared in this case and filed W/V. He denied the entire allegations. He further contended that family of the Complainant and O.P are closed since long. Complainant requested the O.P for a flat. Complainant has garment godown at Agartala. As per request of the Complainant O.P registered a flat at Kolkata in favour of the Complainant and did not hand over the possession of the same. Before registration of the flat Complainant assured the O.P that Complainant would submit his sale-deed before the bank for taking loan and after granting of loan he will pay the amount of Rs. 10,00,000/- i.e. value of the flat by a cheque. But after completion of registration of aforesaid flat Complainant did not pay any amount in favour of the O.P. After repeated request Complainant made part payment of garment goods amounting to Rs. 4,25,000/- by a cheque but till today Complainant did not make any other payment in respect of value of the aforesaid flat. Complainant started to cheating him. He prays for dismissal of the case.
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C.C. No. 379/2018
TRIAL
During Trial Complainant filed affidavit-in-chief. O.P after filing of the W/V on 08/01/2020 did not turn up on any subsequent date as a result of O.P did not get any chance to file questionnaire and question of reply by the Complainant did not arise.
Documents
Complainant at the time of filing of this case filed the following documents:-
- Copy of sale-deed dated 12/02/2016. . . . . . xerox.
- Copy of Advocate letter dated 05/02/2018. . . . . . xerox.
- Copy of Pass Book of Complainant…………..xerox.
BNA
Complainant filed BNA.
Decision with Reasons
It is the main allegations of the Complainant that O.P is a developer as well as land owner and he was agreed to sale a flat in favour of the Complainant with the consideration of Rs. 10,00,000/-. Subsequently O.P told to the Complainant that further amount of Rs. 5,00,000/- is required for completion of interior work and due to good relation between the parties, Complainant was agreed to pay the same. Lastly, Complainant paid the aforesaid sum of Rs. 15,00,000/- in favour of the O.P and O.P registered the sale-deed in favour of the Complainant and handed over the possession of said flat in favour of the Complainant but O.P not yet completed the remaining work of the aforesaid flat. Complainant issued lawyer notice and after receipt of the same O.P agreed to complete the pending works within next two (02) months but did not comply the same.
O.P appeared in this record and filed W/V and denied the aforesaid entire allegations and further contended that relation in between the Complainant and O.P were very good and due to the said relation O.P executed one sale-deed relating to the aforesaid flat in favour of the Complainant and did not hand over the possession. Complainant agreed to pay the value of the flat amounting to Rs. 10,00,000/- in favour of the O.P within a very short period but Complainant only paid Rs. 4,25,000/- by a cheque in favour of the O.P but till date Complainant did not pay the remaining value of the flat amounting to Rs. 5,75,000/-.
But curious enough that O.P did not file any cheque which he received from the Complainant after registration of the said deed as per his contention, even O.P did not file Bank Passbook in support of his contention. During trail O.P was not present. He after filing the W/V on 08/01/2020 did not turn up on any subsequent date. It was his duty to prove that he did not receive any amount from the Complainant before registration of the aforesaid deed and he received only Rs. 4,25,000/- by a cheque from the Complainant on any subsequent date after registration of the sale-deed dated 12/02/2016. Accordingly, this is clear before us that O.P failed to prove the said fact by sufficient documentary evidence.
Complainant in support of his case produced the Xerox copy of aforesaid document. At the time of hearing of argument he produced original copy of those documents and we verified the aforesaid documents with the original documents and original documents were returned to the hand of the Complainant.
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C.C. No. 379/2018
On perusal of bank statement we find that Complainant paid Rs. 2,50,000/- on 20/11/2015 by cheque no. 537584. Complainant also paid Rs. 3,50,000/- on 21/11/2015 by cheque no. 537383. Complainant also paid Rs. 1,00,000/- on 25/11/2015 by cheque no. 537386. We also find that Complainant paid Rs. 4,00,000/- on 28/01/2016 by cheque no. 537390. Complainant also paid Rs. 4,00,000/- on 01/02/2016 by cheque no. 537391.
From the aforesaid discussion it is clear before us that Complainant paid Rs. 15,00,000/- in favour of the O.P. We also find that aforesaid sale-deed was executed on 12/02/2016. O.P stated in the W/V that he executed the aforesaid sale-deed dated 12/02/2016 in favour of the Complainant without taking the consideration amount of Rs. 10,00,000/-. But on perusal of recital of the aforesaid sale-deed we find that O.P made a declaration that he after receipt of Rs. 10,00,000/- i.e. entire consideration amount of the said deed executed the aforesaid sale-deed. As the O.P declared in the recital of the deed that he already received Rs. 10,00,000/- as consideration amount of the deed. So, his subsequent denial that he did not receive the consideration money and he executed the sale-deed without receiving the consideration money will not be accepted.
Accordingly it is clear before us that Complainant paid the aforesaid consideration amount of Rs. 10,00,000/- in favour of the O.P before execution of the deed. It is also clear before us that Complainant paid an additional amount of Rs. 5,00,000/- for interior work of the aforesaid flat.
Complainant on oath stated before this Commission that O.P after receipt of additional amount of Rs. 5,00,000/- did not complete the interior work. Complainant stated the same on oath before this Commission and that has not yet been rebutted by the counter evidence of the O.P. So we do not find any reason to disbelieve the same. Moreover, Complainant on oath stated before this Commission that after execution of the aforesaid sale-deed got the possession of the aforesaid fact from the O.P. Said evidence of Complainant not yet been rebutted. In this situation we have no other alternative but to accept the said evidence of the Complainant.
Placing reliance upon the aforesaid evidence of the Complainant it is also clear before us that Complainant got the possession of the aforesaid flat after execution of the aforesaid sale-deed in respect of the aforesaid flat and Complainant is now in possession of the said flat. It is also clear before us that Complainant paid additional amount of Rs. 5,00,000/- in favour of the O.P and O.P did not complete the interior work of the aforesaid flat as per his promise.
On perusal of record we find that Complainant is the consumer and O.P is the service provider.
In the result, the present case succeeds.
Having regard to the aforesaid discussion it is clear before us that Complainant has able to established his grievance by sufficient documents beyond reasonable doubt and he is entitled to relief as per his prayer.
Hence ,
It is ordered,
That the present case vide no. C.C./379/2016 be and the same is allowed on contest against the O.P with cost of Rs. 5,000/- to be paid by O.P in favour of the Complainant.
O.P is directed to complete the pending interior work of the aforesaid flat as per his promise within 45 days from this day alternatively O.P is directed to refund the sum of Rs. 5,00,000/- in favour of the Complainant within next 45 days from this date failing which Complainant shall have liberty to put this order into execution.
O.P is further directed to pay a sum of Rs. 50,000/- as compensation for the mental pain, agony and harassment of the Complainant within 45 days from this date failing which Complainant shall have liberty to put this order into execution.
Let a plain copy of this order be given to the parties free of cost as per CPR, 2005.
Dictated and Corrected by me
President
Member President
