DIST. CONSUMER DISPUTES REDRESAL COMMISSION
NORTH 24 Pgs., BARASAT.
C.C. No. 319/2019
Date of Filing Date of Admission Date of Disposal
25.10.2019 05.11.2019 07.12.2023
Complainant/s:- | Sri Kishor Kumar Das, S/o Late Krishna Chandra Das, Sriniketan Apartment, 4, Bachaspati Para Road, 3rd Floor, Flat No. – 04, P.O. – Dakshineswar, P.S. – Belgharia, Kolkata – 700076, Dist.- North 24 Parganas, West Bengal. =Vs= |
Opposite Party/s:- | - Sri Samiran Chakraborty (Partner of M/s J.S. Construction Co.), S/o Late Santi Ranjan Chakraborty, Residing at: 126, M. M. Feeder Road, P.O. – Ariadaha, P.S. – Belgharia, Kolkata – 700057.
- Smt. Sarbari Chakraborty (Partner of M/s J.S. Construction Co.), W/o Sri Samiran Chakraborty, Residing at: 126, M. M. Feeder Road, P.O. – Ariadaha, P.S. – Belgharia, Kolkata – 700057.
- Smt. Jyotsna Chakraborty (Partner of M/s J.S. Construction Co.), W/o Late Santi Ranjan Chakraborty, Residing at: 126, M. M. Feeder Road, P.O. – Ariadaha, P.S. – Belgharia, Kolkata – 700057.
|
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 against the aforesaid Opposite Parties praying for direction to the Opposite Parties to pay back the entire amount of Rs. 9,00,000/-, interest till date, litigation cost amounting to Rs. 25,000/- and other reliefs. He alleged that he booked one flat with the consideration of Rs. 38,00,000/-. Out of which he paid Rs. 9,00,000/- in favour of the Opposite Parties relating to the said transaction. One deed of agreement was executed between the parties. It was agreed that the rest amount will be paid after getting loan from the financial institution. Bank gave sanction letter in favour of the Complainant. Complainant approached to the O.P No. 1 for relevant document but he did not hand over the same. O.Ps are not attending the phone of Complainant. Developer issued a letter to the Complainant on 05/09/2019 with the heading reminder for taking possession and for payment of rest amount of the flat including charges for extra work which already executed. Developer by the said letter are trying to over-laping the legal lacuna. Hence, the Complainant filed this case.
O.P No. 1-3 appeared in this record and filed W/V. They denied the entire allegations made in the petition of complaint and further contended that Complainant did not follow the terms of the agreement. They further stated that O.Ps are willing to perform the duty and responsibilities as per agreement and if the petitioner wanted to refund the earnest amount then. The O.P always willing to refund the same subject to deduction of 30% amount from the amount which he paid and also deducting the amount for extra work which was done in the petitioner’s flat by this O.P. They prayed for dismissal of the case.
TRIAL
During Trial Complainant filed affidavit-in-chief. O.P No. 1 filed questionnaire. Complainant gave answer. O.P No. 1 filed affidavit-in-chief. Complainant filed questionnaire. O.P No. 1 filed reply.
Documents
Complainant at the time of filing of this case filed the following documents:-
- Deed of agreement of sale duly executed by both the parties dated 26/06/2018….xerox.
- List of documents required by bank………….signed by Complainant.
- Money receipt given by O.Ps……….3 sheets (Xerox).
Contd. To Page No. 2 . . . ./
: : 2 : :
C.C. No. 319/2019
- Sanctioned letter issued by bank in favour of the Complainant……..xerox.
- Reminder letter issued by Complainant………..original.
- Copy of legal notice issued by Complainant……..xerox.
- Reply by O.P No. 1 dated 01/10/2019………original.
- Letter of reminder dated 05/09/2019 issued by O.Ps 1 sheet ……….original.
Opposite Party produced the following documents:-
- Copy of general power of attorney dated 02/02/2011……xerox.
- Power of home sanctioned letter……..xerox.
- Loan account statement.
BNA
Complainant filed BNA. O.P No. 2 filed BNA. O.P No. 1 filed BNA. During Trial, Opposite Parties filed a petition stating that case is not maintainable.
Decision with Reasons
O.P No. 1-3 had filed a petition before this Commission stating that case is not maintainable. Complainant filed W/O against the said petition. Said petition has registered as M.A. Case No. 346/2019. This Commission vide order no. 13 dated 10/03/2022 rejected the same and observed that this Commission has pecuniary jurisdiction to try this case.
On perusal of record we find that it is admitted position that Complainant had booked a flat with the consideration of Rs. 38,00,000/- and he paid Rs. 9,00,000/- in favour of the Opposite Parties and relating to the said transaction one deed of agreement for sale was executed on 26/06/2018 and both parties to this case put their signatures over the said documents. Complainant produced copy of money receipt (3 copies) we find that Complainant paid Rs. 9,00,000/- in favour of the Opposite Parties as advance.
It is the further allegation of the Complainant that Opposite Parties did not provide the necessary documents which are required for submission before the bank authority relating to house building loan. As the Opposite Parties did not provide the necessary documents relating to the aforesaid flat, he sent a letter to the O.P. No. 1 on 10/09/2019. Complainant sent a legal notice on 03/09/2019 and asked the Opposite Parties to refund the aforesaid sum of Rs. 9,00,000/- which he paid in favour of the Opposite Parties. O.P No. 1 sent a reply to the Complainant. By the said reply O.P No. 1 claimed that Opposite Parties are entitled to deduct 30% from the amount of Rs. 9,00,000/- which had paid in favour of the Opposite Parties by the Complainant. They further stated that as per request of the Complainant they made some extra work. On 05/09/2019 Opposite Parties gave a letter to the Complainant. By the said letter they directed the Complainant to come forward within three days and to finalise the transaction amicably and peacefully. Complainant gave a reply of the said letter. Complainant in his reply denied the all allegations mentioned in the said letter against him. He further stated that he has decided to take the help of court of law in respect of the amount of Rs. 9,00,000/- which he paid in favour of the Opposite Parties.
On careful perusal of deed of agreement for sale dated 26/06/2018 we find that tentative date of possession of the flat is 31/10/2018. But before that date Opposite Parties or O.P No. 1 did not wrote any letter to the Complainant alleging that Complainant is not performing his role as per the said agreement. After lapse of almost one year O.P No. 1 by his letter dated 05/09/2019 gave so-called reminder to the Complainant for taking possession and for payment of rest amount. So it is clear before us that before 31/10/2018 flat was not ready for delivery in favour of the Complainant as per the agreement dated 26/06/2018. Complainant produced the sanctioned letter before the Opposite Parties and O.P No. 1 filed the same before this Commission. So, it is within the knowledge of O.P No. 1 that necessary documents are required to file before the bank authority relating to the aforesaid loan
Contd. To Page No. 3 . . . ./
: : 3 : :
C.C. No. 319/2019
O.P No. 1-3 or O.P No. 1 failed to produce any document in support of the fact that O.P No. 1 gave the necessary documents to the Complainant relating to the house building loan. So, it is clear before us that O.P No. 1-3 did not comply the terms of the agreement. Due to the aforesaid dispute Complainant for the first time by his letter dated 10/09/2019 requested the O.P No. 1 to refund the aforesaid amount of Rs. 9,00,000/- in his favour but O.P No. 1 not yet comply the same.
As the O.P No. 1-3 or O.P No. 1 did not comply the terms of the agreement which were the duty of Opposite Parties, so, O.P No. 1-3 are not entitled to benefit of clause 4 of the agreement and cannot claim the deduction of 30%. As the O.P No. 1-3 or O.P No. 1 failed to assign proper reason and failed to establish that the Complainant himself did not follow the terms of the aforesaid agreement dated 26/06/2018, so, O.P No. 1-3 are not entitled to deduction of 30% earnest money amounting to Rs. 9,00,000/-.
On perusal of record we find that the Complainant is the consumer and O.P No. 1-3 are the service provider. We also find that this Commission has jurisdiction to try this case.
Having regard to the aforesaid discussion, it is clear before us that Complainant has able to established his grievances by sufficient documents beyond reasonable doubt and he is entitled to get the reliefs as per his prayers.
In the result, present case succeeds.
Hence ,
It is ordered,
That the present case vide no. C.C./319/2019 be and the same is allowed on contest against the O.P No. 1-3 with cost of Rs. 5,000/- which to be paid by O.P No. 1-3 in favour of the Complainant.
O.P No. 1-3 jointly or severally are directed to refund the sum of Rs. 9,00,000/- (nine lakhs) in favour of the Complainant along with interest @10% p.a. from the date of payment of aforesaid sum and to till the date of actual payment within 45 days from this date failing which Complainant shall have liberty to put this order into execution.
O.P No. 1-3 jointly or severally are directed to pay Rs. 50,000/- as compensation in favour 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
