DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 67/2021

 

1. Sri Ashutosh Dhar,

S/O- Late Aswini Kumar Dhar,

 

2. Smti. Shila Dhar,

W/O- Sri Ashutosh Dhar,

C/O- Bishnu Bardhan Roy.

 

Both are residents of 

1st Crossing Lane,

Ramnagar Road No.1, 

P.O. Agartala, 799001.

P.S. West Agartala, 

District- Tripura West.        ..............Complainants.

 

 

-VERSUS-

 

The Sri Narayan Chandra Roy,

S/O- Late Jiban Lal Roy,

Prop of M/S Eastern India Business 

Associates Pvt. Ltd.,

B.K. Road, Palace Compound,

P.S. East Agartala,

District- West Tripura. ............Opposite Party.

 

    __________PRESENT__________

 SRI GOUTAM DEBNATH

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

      WEST TRIPURA, AGARTALA. 

 

DR (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA, AGARTALA.

 

SRI SAMIR GUPTA

MEMBER,

  DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA. 

 

C O U N S E L

 

For the Complainant : Sri Alik Das,

  Sri Sukanta Paul,

  Smt. Mallika Roy,

  Smt. Swapna Das,

  Learned Advocates. 

 

For the O.P. No. : Sri Ranjan Bhattacharjee,

   Sri Dipankar Das,

   Sri Basudeb Chakraborty,

   Sri Sourab Das,

   Sri Kushal Deb,

   Learned Advocates.

 

 

ORDER  DELIVERED  ON:   20/02/2023.

 

F I N A L    O R D E R

Sri Ashutosh Dhar, herein after called the “Complainant No.1” and Smt. Shila Dhar, herein after called the “Complainant No.2” have filed this complaint against Sri Narayan Chandra Roy herein after called the “O.P.” alleging inter alia that vide agreement dated 20.07.2015 entered into an agreement with the O.P. to purchase a flat such agreement was notarized on 21.07.2015. Total purchase amount was Rs.24 Lacs for the flat in the ground floor with one garage space. The specification of the flat as per the agreement has mentioned above in the 'Shyama Residency'' Agartala at Banamalipur near Ramthakur Asram. As per the terms of the agreement the complainant paid Rs.2 Lacs on 21st July, 2015 and time to time money has advanced amounting to Rs.14 Lacs. The time for completion of the project was maximum of 18 months. 

2. On several occasion the complainant demanded his flat on payment of the rest amount as per the agreement. The complainant served Legal Notice to the O.P. on 14.08.2017 which the O.P. replied by letter dated 12.09.2017 that the flat was ready for deliver. But ultimately the O.P. never delivered such flat to the complainant. On 03.01.2018 the complainant sent a letter of request to hand over the possession of the flat on receiving the rest amount of Rs.10 Lacs but in vain. Being frustrated the complainant lodged FIR against the O.P., Hence, this complaint with allegations of deficiency of service and with a prayer to get back the advance amount of Rs.14 Lacs with penal interest. Due to old age the complaint could not be filed during the Covid Pandemic period. Hence, it was filed on 09.08.2021.

 

3. The O.P. submitted written objection alleging inter alia that the complaint is bad for non-joinder of parties particularly in Para- 9 and Para- 13 of the written objection the O.P. pleaded that he is merely Director of the company but he personally did not receive any money from the complainant and the O.P. being a company in the name and style of “M/S Eastern India Business Associates Pvt. Ltd.,” the company has to be impleaded as party and Mr. Sumit Majumder is also a necessary party. In Para- 6 of the written objection it is pleaded that the payment of Rs.14 Lacs by the complainant is a matter of record. Hence, the O.P. did not deny receipt of Rs.14 lacs.

4. The complainant has submitted (i)copy of agreement, (ii)copy of building permission given by the Agartala Municipal Council, (iii)Advocate Notice, (iv)Copy of FIR. All these documents are lying with the record.

5. During the course of argument Learned Counsel of the complainant argued that he has proved his case as per pleading. Hence, there is deficiency of service and the O.P. is liable to pay compensation and also liable to return back Rs.14 lacs with interest.

6. Per contra Learned Counsel of the O.P. argued that the complaint is not maintainable because the O.P. is a company and the company has not been impleaded as a party. Hence, in the personal capacity of the O.P. Narayan Chandra Roy the complaint is not maintainable.

 

7. On the basis of the pleading, documents and argument advanced, the following points emerged  for discussion and decision. 

(i) Whether the complainant entered into an agreement with the O.P. for purchasing a flat and for that purpose advanced Rs.14 lacs?

(ii) Whether the complaint is maintainable and the O.P. is a company?

(iii) Whether the O.P. is liable to return Rs.14 Lacs with interest and pay compensation as well, if there is deficiency of service?

 

8. Decision and reasons for decision:-

For convenience all the points are taken up together for discussion and decision. The O.P. has not disputed the fact that the complainant entered into an agreement with the O.P. for purchasing a flat for Rs.24 lacs and the complainant paid Rs.14 lacs as advance. The only serious objection to the complaint raised by the O.P. is that the complaint is not maintainable as “M/S Eastern India Business Associates Pvt. Ltd.”' has not been impleaded as a party. 

9. From the agreement we find that the O.P. signed in the agreement as 2nd party promoter. The O.P. has not submitted any scrap of paper to show that any company was really formed and registered as per the Company Act and also that there is a Board of Director as per Company Act and also that although in the agreement name of company has been mentioned but such company was legally formed. As such we find no force behind the submission of Learned Counsel that the company has not been impleaded as a party and as such the complaint is not maintainable. On the top of it, we can not be oblivious of the fact that the consumer complainants have not approached a Civil Court seeking specific performance of contract. Rather, they have sought consumer justice before this quashi Judicial Forum namely 'Consumer Disputes Redressal Commission'. Under Section 2(42) Service includes housing construction as well. Therefore, such hyper technical stand of the O.P. can not be appreciated. Further in the 2nd page of the agreement it is mentioned that the 2nd party of the agreement entered into a joint venture with Sri Pranab Choudhury, land owner of the said plot and the 2nd party as promoter shall have the right to sign documents, sale deed etc. as per the joint venture agreement dated 18th July, 2014. As such there is no existence of any company as mentioned in the present agreement. Further, cause of action is also alive till the O.P. delivers the property as per the agreement. This has been decided by the National Consumer Disputes Redressal Commission in Rizwan I Patel Vs. Chhaya Uttam Patel and Others reported in 2018(3) CLT 41(NC). 

10. From the pleading and documents filed by the complainant it is clear that the O.P. is liable for deficiency of service as inspite of taking Rs.14 Lacs in advance he has failed to hand over possession of the flat to the complainant. All the points are decided accordingly in favour of the complainant.

11. In the result, we order that the O.P. Sri Narayan Chandra Roy, Prop. of M/S Eastern India Business Associates Pvt. Ltd., B.K. Road, Palace Compound, Agartala, West Tripura shall return back Rs.14 Lakhs to the Complainants No. 1, Sri Ashutosh Dhar, & Complainant No.2, Smt. Shila Dhar, Residents of Ramnagar, Agartala, West Tripura with interest @ 7.5% P.A. from 14.07.2016 i.e., the last date of payment till the actual payment. The O.P. shall pay a lump sum of Rs.2(Two) Lakhs as compensation to the  complainants within 30(thirty) days from today for his deficiency in service. Failing which the 2nd party shall pay further interest @ 7.5 % P.A. from today till the date of actual payment. The 2nd party shall in accordance with  Section 39(1) of the Act shall at his own cost publish advertisement in at least two daily news papers of the state to neutralize the effect of misleading advertisement that he has formed a company in the name and style of M/S Eastern India Business Associates Private Limited within one month from today and shall communicate one copy of such news paper to this Commission within 30 days from today. Failing which legal action shall be taken as per the provision of this Act.

  The case stands disposed off. 

Supply a copy of this Final Order free of cost to the complainant and the Opposite party.

 

Announced.

 

 

 

SRI  GOUTAM DEBNATH

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA

 

 

 

 

DR (SMT)  BINDU  PAL

MEMBER, 

DISTRICT CONSUMER DISPUTES 

REDRESSAL COMMISSION, 

WEST TRIPURA,AGARTALA

 

 

SRI SAMIR  GUPTA

MEMBER,

 DISTRICT CONSUMER DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,AGARTALA.