West Bengal

South 24 Parganas

CC/582/2014

Sri Ramesh Chandra Mahanty S/O Sailendra Narayan Mohanty. - Complainant(s)

Versus

Sri Sanhib Bhattacharjee, Proprietor of M/S. Bhattacharjee Enter prise. - Opp.Party(s)

26 Nov 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _582_ OF ___2014__

 

DATE OF FILING : 2.12.2014                     DATE OF PASSING JUDGEMENT:  26.11.2015

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu

                                                                             

COMPLAINANT             :        1.Sri Ramesh Chandra Mohanty, s/o Sailendra Narayan Mohanty

2. Smt. Satyabhama Mohanty,w/o Sri Ramesh Chandra Mohanty

Bothy of 107B, Gholar Ghat Road (Swamiji Road), P.O Parnasree Pally, Kolkata – 60.

 

-VERSUS  -

 

O.P/O.Ps                            :  Sri Sanjib Bhattacharjee, Prop. M/s Bhattacharjee Enterprise, at 412/4, Parnasree Pally, Upendranath Banerjee Road, P.O Parnasree Pally, P.S Parnasree, Kolkata – 60.

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President          

The record is placed for order/judgement. It appears that complainant initially filed this case on the basis of the agreement for sale of a flat of O.P-1 and he has paid Rs.4,65,000/- through account payee cheque as well as cash to O.P-1 and his representative. But the aid flat was not delivered and during pendency of the case complainant came to know that O.P has admitted before the Ld. Forum at the time of hearing of injunction petition dated 17.7.2015 that the O.P made another agreement for sale with the third party namely Keshab Chowdhury and Krishna Chowdhury and transferred the schedule property ,for which in the changed circumstances this amendment complaint is filed and complainant prays for deleting prayer nos.a,b and c  and wanted to insert in those places prayer (i), (ii), (iii) but original prayer nos. d)  and e) will remain as it is .

The prayer was allowed and that is why the complainant has filed an amendment application and complainant informed the same to the O.P through speed post and item was delivered. O.P appeared and filed written version but did not take part in the hearing . However, for ends of justice we have heard the complainant and we find from the series of money receipts that the complainant booked one flat , the total consideration money was Rs.19,27,800/-  and out of that complainant has been able to pay Rs.4,65,000/- and subsequently when the said flat has been transferred to the third party complainant wanted to refund the consideration money with interest and compensation , punitive damage and legal expenses.

The O.P contested the case by filing written version and has denied all the material allegations leveled against him. It is the positive case of the O.P that the complainant never paid the consideration money in time and only paid a token amount through cheque which was bounced. It has further stated that the O.P is suffering from financial problem. Due to non-payment of the consideration money in terms of the agreement the O.p has claimed that this case is barred by limitation and prays for dismissal of the case.

Points for consideration in this case is whether the O.P made any deficiency in service or unfair trade practice or not.

                                                            Decision with reasons

From order no.18 dated 19.6.2015 it is clear that O.P already transferred the suit flat to a third party and that is why the complainant wanted to implead the third party in this case which was registered as M.A. no.30 but unfortunately the said application was rejected by this Forum in absence of the President ,wherein , complainant wanted to implead O.p nos. 2 to 5 in the cause title.

Be tht as it may, complainant has no other alternative but to file another amendment petition which was allowed by this Forum and thereby put alternative prayer for refund of consideration money, punitive damage , cost and compensation etc.

From the record we find that Keshab Chandra Chowdhury , Prop. Of Chetri Enterprise and Krishna Chowdhury already filed vakalatnama before allowing the complaint to make them party, that is why we are aware that O.P already transferred the said flat to the third party which is undoubtedly unfair trade practice on the part of the O.P and O.P has taken a plea for barred by limitation. Be it mentioned hre that until and unless registration is made along with completion certificate , the case is not barred by limitation as per decision of the Hon’ble Superior Commission and Court. So, the plea of the O.P has no leg to stand upon. The O.P olught to have cancelled the agreement for sale of the complainant if the complainant was not vigilant to pay remaining consideration money in terms of the agreement. But until and unless this agreement for sale is not being cancelled he is not permitted to transfer the said flat to a third party which is unfair trade practice. So, we find that O.P made deficiency in service as well as unfair trade practice by transferring the said flat to a third party during the pendency of the case, for which complainant has been able to succeed the case against the O.P.

Hence,

                                                Ordered

That the application under section 12 of the C.P Act is allowed.

The O.P is directed to refund Rs.4,65,000/- along with interest @12% p.a from the date of this order till its realization.

The O.P is further directed to pay compensation to the tune of Rs.2 lacs and punitive damage to the tune of Rs.1 lac and cost of the proceedings Rs.10,000/-  within 45 days from the date of this order, failing which, complainant is at liberty to receive the amount through separate proceedings by filing execution case.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

Member                                                                                                                       President

Dictated and corrected by me

 

                        President

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

            Ordered

That the application under section 12 of the C.P Act is allowed.

The O.P is directed to refund Rs.4,65,000/- along with interest @12% p.a from the date of this order till its realization.

The O.P is further directed to pay compensation to the tune of Rs.2 lacs and punitive damage to the tune of Rs.1 lac and cost of the proceedings Rs.10,000/-  within 45 days from the date of this order, failing which, complainant is at liberty to receive the amount through separate proceedings by filing execution case.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

Member                                                                                                                       President