DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA :  AGARTALA

 

 

CASE   NO:   CC- 07 of 2023

 

 

Nirmal Das

S/O- Nagendra Das,

S/6 25B Saizawhawal Section,

Near Bank of Maharastra,

Bawngkawn, Aizwal Municipal Council,

Aizwal, Mizoram. 

 

Presently residing at:

Sri Nirmal Das,

C/O- Rajat Bhowmik,

Village- Ballavpur near 

Ballavpur Gaon Panchayat,

P.O. & P.S. - Amtali, 

West Tripura- 799130. ...........Complainant.

 

 

-VERSUS-

 

 

1. Santa Kumar Roy,

 

2. Smt. Nibedita Baidya,

W/O- Sri Samaresh Baidya,

Krishnanagar, Pragati Road,

Near Meher Kali Bari , 

P.O. Agartala, Pin-799001,

District- West Tripura.

 

3. Samaresh Baidya,

 

 

 

    __________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 OP. No. 1, 2 & 3 : Ex-party. 

 

 

 

 

 

F I N A L    O R D E R  

1. Sri Nirmal Das(here-in-after called “the complainant”) has filed this complaint against Santa Kr. Roy, Nibedita Baidya and Samaresh Baidya alleging inter alia that Santa Kr. Roy, the O.P. No.1 being owner of land measuring 1228 sq. ft. of Khatian No. 1937 Sabek  Dag No.1997 Haal Dag No.2441/3525, 2432/3527 of Mouja- Agartala at Dhaleswar Road No.8 entered into an agreement with the complainant on 08.11.2018 to sell a flat measuring 930 sq ft. to be constructed on his land within 12 months from the date of execution of the agreement dated 08th November, 2018. 

1.1 Consequently, a sum of Rs.5 lakhs was paid as booking money on 08.11.2018 and another sum of Rs.3 lakhs was paid on 25.01.2019 as first installment.

1.2 If the seller fails to prove marketable title, the purchaser i.e., the complainant can cancel the agreement and receive the advance money with interest @ 9% along with cost etc.

1.3 The O.P. No.2, Nibedita Baidya was the promoter of the flat and issued money receipt to the O.P. No.1 for a sum of Rs.5 Lakhs. Similarly on 19.03.2019 the complainant paid Rs.3 lakhs to the O.P. No.1 for which Nibedita Baidya, the O.P. No.2 being promoter issued a receipt to the O.P. No.1.

1.4 The O.P. No.1 failed to deliver possession of the flat or return the amount of Rs.8 lakhs(Rs. 5 lakhs + Rs.3 Lakhs).  

1.5 On several persuasion the O.P. No.3, Samaresh Baidya agreed to return the amount and on 13.07.2022 issued a cheque for Rs.50,000/- in favour of the complainant which was dishonoured due to insufficiency of fund. Hence, this case.

 

2. Summons were issued upon the O.Ps but the O.Ps failed to appear. As such vide order dated 29.03.2023 the case has been proceeding exparte against the O.Ps. 

 

3. The complainant submitted evidence on affidavit and the documents i.e., the agreement dated 8th Nov. 2018 entered in between the complainant and the O.P. No.1, money receipt issued by the O.P. No.2, Nibedita Baidya in favour of Santa Kr. Roy for a sum of Rs.5 Lakhs wherein Samaresh Baidya, O.P. No.3 is a witness and another money receipt issued by Nibedita Baidya in favour of Santa Kr. Roy for a sum of Rs.3 Lakhs wherein Samaresh Baidya is a witness and a cheque dated 13.07.2022 issued by Samaresh Baidya from the joint account of Samaresh Baidya and Nibediata Baidya in favour of the complainant drawn on Federal Bank along with the return memo report of the State Bank of India showing dishonour due to to insufficiency of fund and the Legal Notice dated 14.11.2022 issued by the learned Advocate Sri Tapas Kumar Deb to the O.Ps. 

4. During the course of argument Learned Advocate of the complainant argued that the business of the O.Ps proved the case and the documents support the case of the complainant.

4.1 The O.Ps are absent as usual.

5. The following points are taken up for discussion and decision:

 

6. Both the points are taken up together for discussion and decision.

6.1 As per the agreement dated 8th Nov. 2018 we do not find that the O.P. No.1 issued any money receipt to the complainant for selling any flat as per the agreement. 

6.2 Even if the 2 money receipts are considered, it is not understood how the O.P. No.2, Nibedita Baidya could issue such money receipt for Rs.5 Lakhs and Rs.3 Lakhs respectively in favour of the complainant because the O.P. No.2 is/was not a party to the agreement dated 8th Nov. 2018. In fact the O.P. No.2 issued money receipts to the O.P. No.1.

6.3 We understand that Samaresh Baidya, O.P. No.3 is the Husband of Nibedita Baidya, O.P. No.2 but it is not understandable how Samaresh Baidya could issue a cheque in favour of the complainant even if his wife Nibedita Baidya took any money not from the complainant but from the O.P. No.2. Hence, if this cheque issued by Samaresh Baidya was dishonoured that can be for other purpose for which the complainant is at liberty to take legal action against Samaresh Baidya, O.P. No.3 either under Section 138 of Negotiation Instrument Act or Money Suit, if so advised. But that can not be connected with the present agreement and transaction in between the complainant and the O.P. No.1, Santa Kr. Roy. Therefore, we fail to appreciate the case of the complainant that Santa Kr. Roy ever took any advance from the complainant for selling any flat to the complainant by dint of agreement dated 8th Nov. 2018 and that O.P. No.2, Nibedita Baidya and O.P. No.3, Samaresh Baidya are in any way connected with the agreement dated 8th Nov. 2018. As such they are not also guilty of deficiency of  service as alleged by the complainant. This commission shall follow summary procedure, but the Commission can't be oblivious of the basic principle of Civil law and the Law of evidence including burden of proof.

7. Both the points are decided. 

 

8. In the result, the case stands dismissed being devoid of merit. Supply a copy of this Final Order free of cost to all the parties. 

 

 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.