Judgment : Dt.30.10.2017
Shri S. K. Verma, President.
This is a complaint made by one Dipu Halder, son of Sri Harekrishna Halder, Smt.Kamala Halder, wife of Sri Dipu Halder, both residing at 38, Ashutosh Chatterjee Road, P.O.- Dhakuria, P.S.-Lake, Kolkata-700 031 against Sri Avijit Das, son of Sri Mukul Das and sole proprietor of M/s A.D. Construction, having registered office and residence situated at 1/41 Jahura Bazar, P.O.- Haltu, P.S.-Kasba, Kolkata-700 042, OP No.1 and Sri Rabin Paul, son of Late Peary Mohan Paul, residing at 17/1B, Rathin Banerjee Lane, P.S.-Garfa, Kolkata-700 031, OP No.2 praying for an order directing the O.P.No.1 to refund Rs.80,000/- which OP No.1 took from the Complainant misguiding him beyond the terms of the agreement for sale dt.6.1.2016 as well as the registered deed of conveyance dt.18.8.2016 and an order directing the OP to make compensation of Rs.2,00,000/- and litigation cost of Rs.10,000/-.
Facts in brief are that OP No.1 is a sole proprietor of a firm who is engaged in development of new buildings in the name and style of ‘M/s A.D. Construction’. OP No.1 constructed the building on the land of OP No.2. OP No.2 made a power of attorney in favour of OP No.1. They entered into an agreement for sale with OP No.1 for a self contained flat measuring about 350 sq.ft., situated at premises No.17/1B, Rathin Banerjee Lane, P.O.-Dhakuria, Kolkata-700 031, situated at the ground floor of the building on 6.1.2016. As per terms of the agreement for sale dt.d6.1.2016, the consideration amount was fixed to Rs.11,00,000/-. OP No.1 took Rs.11,80,000/- by misguiding the Complainant and he did not issue money receipt, when Complainant went to ask refund of Rs.80,000/-. OP No.1 assured the Complainant to wait for some time and assured that he will refund the money. Complainants were handed over possession on 18.8.2016. OP No.1 made a gross violation to specification clause and did not make adequate provisions for drainage and sewerage system. OP No.1 handed over possession to the Complainants but did not supply occupancy certificate and OP No.1 also made registration deed in favour of the Complainant. Since OP No.12 did not refund the money to the tune of Rs.80,000/-, Complainant filed this case.
OP No.1 did not contest the case by filing written version and so the case is heard ex-parte against OPs.
Decision with reasons
Complainant filed affidavit-in-chief.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion, it appears that Complainant has filed this complaint for refund of Rs.80,000/- which OP No.1 took from the Complainant by misguiding him. In this regard, Xerox copy of agreement for sale is filed.
Further, on perusal of the deed of sale, it appears that the consideration money is Rs.11,00,000/-. There is no mention of payment of Rs.80,000/-. Since there is no mention in any of the documents the contention of Complainant cannot be believed that he was misguided by OP No.1 and OP No.1 took Rs.80,000/- from him. In the circumstances, this prayer cannot be allowed.
2nd prayer of the Complainant is compensation of Rs.2,00,000/- and litigation cost of Rs.10,000/-. Since Complainant could not prove his allegation, we are of the view that question of granting compensation and litigation cost do not arise.
Hence,
ordered
CC/189/2017 and the same is dismissed ex-parte.
