DATE OF FILING                    :      04-12-2012.

DATE OF S/R                            :      28-01-2013.

DATE OF FINAL ORDER      :     07-06-2013.

Sri Samir Mukherjee,

son of late Nilratan Mukherjee,

residing at Railway Quarter No. MR-1/22,

Unit 4, Mathurakati, P.O. Nimpura,

P.S. Kharagpur (town ),

District – Paschim Medinipur,

West Bengal.--------------------------------------------------------------------- COMPLAINANT.

-          Versus   -

1.      Sri Subhas Adhikary,

son of Sri Jatindra nath Adhikari,

proprietor of M/S. Suparna Housing,

residing at Room no. 101, Shahil Apartments,

20/2, Shastri Narendranath Ganguly  Road,

Santragachi, P.S. Shibpur,

District – Howrah,

PIN – 711 104.

2.      Smt Laxmi Majumdar,

wife of –Sintu Majumdar,

residing at Banikanta Apartment,

L.M.C. Sarani, P.O. Baksara,

Howrah,

PIN – 711110.------------------------------------------------------OPPOSITE PARTIES.

                                                P    R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.                  The instant case was filed by complainant U/S 12 of the C.P. Act, 1986

wherein the complainant has  prayed for direction upon the o.p.  no. 1 for providing the flat as mentioned in the schedule or to pay back the sum of Rs. 1 lac together 18% interest from 22-01-2011 and litigation costs of Rs. 10,000/- and for Rs. 1 lac as compensation for causing mental agony and harassment as the O.Ps. in spite of the agreement dated 22-01-2011 and receiving Rs. 1 lac as advance money practiced fraud and refused to act upon the agreement.

2.                  The o.p. no. 1  in the written version contended interalia that the complainant

did not pay the outstanding amount within the stipulated period and as such he was compelled to transfer the said flat to O.P. no. 2 for want of money ; that a cheque in favour of the complainant was sent to pay back the advance money. So the complaint should be dismissed. 

3.         Upon pleadings of both parties two points arose for determination :

i)          Is there any deficiency in service on the part of the O.P.  ?

ii)                  Whether the complainant is  entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

4.      Both the points are  taken up together for consideration. The agreement dated 22-

01-2011 unerringly reflects that the O.P. no. 1 agreed to sell the flat measuring 720 sq. ft. at a price of Rs. 9,25,000/-. The complainant paid Rs. 1,00,000/- as advance money. Subsequently the O.P. no. 1 sold the same flat to O.P. no. 2 which amounts to practicing of fraud upon the complainant. Subsequently the O.P. no. 1 practiced further fraud by sending cheque of Rs. 1 lac with intent to refund the advance money which was dishnoured. Knowingly fully well that the cheque was going to be dishonoured the O.P. no. 1 adopted a trick to hoodwink the complainant. The conduct of the O.P. no. 1 cannot be  supported from the point of view of law and even from simple common sense.

We are, therefore, of the view that this a fit case where the prayer of the complainant

shall be allowed as there cropped up gross deficiency in service and  the O.P. no. 1 adopted unfair trade practice. Both the points are accordingly disposed of. 

      Hence,

O     R     D      E      R      E        D

      That the C. C. Case No. 160 of 2012 ( HDF 160 of 2012)  be  and the same is allowed on contest as against the O.P. no. 1 with costs and dismissed against the O.P. no. 2 without costs.

      The O.P. no. 1 be directed to  deliver the flat measuring 720 sq. ft. as mentioned in the schedule as agreed upon on 22-01-2001 after receiving the balance amount within 45 days from the date of this order.

      Alternatively the O.P. no. 1 be directed to pay back the sum of Rs. 1 lac as received by him at the time of agreement on 22-01-2011 together with the  interest @ 18% p.a. till full satisfaction.

      The O.P. no. 1 be further directed to pay a sum of Rs. 1 lac to the complainant as compensation for causing mental pain and prolonged harassment.

      The complainant is also entitled to a litigation cost of Rs.  5,000/- from the O.P. no. 1.

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.

DICTATED  &    CORRECTED

BY   ME.  

  (    T.K. Bhattacharya  )                                               (    T.K. Bhattacharya  )

  President,  C.D.R.F.,Howrah.                                   President, C.D.R.F.,Howrah.

 (  Jhumki Saha  )                                                              (  P. K. Chatterjee )

 Member, C.D.R.F.,Howrah.                                       Member,  C.D.R.F.,Howrah.