West Bengal

South 24 Parganas

CC/156/2015

Subhas Ch. Bhowmick, S/O Late B.M. Bhowmick. - Complainant(s)

Versus

Subrata Nath. S/O Late Birendra Kr. Nath. Prop. Of Friends Udyog Associates . - Opp.Party(s)

4

18 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _156_ OF ___2015_

 

DATE OF FILING : 30.3.2015                     DATE OF PASSING JUDGEMENT:  03.06.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Subrata Sarker

                                                                             

COMPLAINANT             :   Subash Chandra Bhowmick,s/o late B.M., Bhowmick of 66, Deshbandhu Park, P.O & P.S: Sonarpur, South 24-Parganas.

 

-VERSUS  -

 

O.P/O.Ps                            :  Subrata Nath, Prop. Of Friendsw Udyog Associates of 53, H.C. SaraniP.O & P.S Sonarpur, Dist. South 24-Parganas, Pin-700 150. s/o late Birendra Kumar Nath.

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

Sri Udayan Mukhopadhyay, President

            The short case of the complainant is that he made an agreement for sale with the O.P for a flat at a total consideration of Rs.12 lacs ,out of which Rs.10 lacs already paid by cheque step by step. Inspite of assurance and agreement for sale along with the plan of flat no.C1 in the first floor O.P failed to hand over the said flat measuring 510 sqft super built up area in the first floor. Hence, the complaint with a prayer to deliver the said flat or refund the amount paid by the complainant with interest @18% p.a and also compensation to the tune of Rs.4 lacs , litigation cost etc.

            The O.P contested the case by filing written version and has denied all the allegations leveled against him. It is the positive case of the O.P that he has entered into  an agreement for sale with the O.P dated 18.12.2013 between them but the complainant has failed and neglected to comply the terms of the contract which is the essence of the contract ,because it is well settled principle of Law that no one can go beyond the terms and conditions of the agreement. It is also stated that this dispute is completely civil in nature and it is the subject matter of the specific performance of contract and this Hon’ble Forum has no jurisdiction to entertain this matter. It is further stated that since complainant fails to pay the balance consideration money within the stipulated period when the time is the essence of the contract, this dispute will be decided by the Civil Court not by this Hon’ble Forum. It is admitted by the O.P that the complainant intended to purchase the flat which is mentioned in page 2 para 7 and the complainant also gave pressure to the O.P which is not only beyond the Law but unjustified also. It has also claimed that complainant is not knocking the door of Redressal Agency under the Act for relief in a Consumer Dispute in clean hand and creating pressure upon the O.P on the very beginning using foreface by the complainant and thereby the O.Ps health condition is deteriorated day by day. Hence, the case should be dismissed since the dispute will be settled in the Civil Court.

            Point for determination in this case is whether there is any deficiency in service on the part of the O.P or not.

 

 

                                                            Decision with reasons

            At the very beginning the contention of the O.P  that this dispute will not be settled before this Consumer Forum which is a civil dispute, is absolutely not accepted because when agreement for sale of a flat has been made between the parties in the year 2013 complainant became consumer under the Consumer Protection Act 1986. It is not the case of the O.P that complainant wanted to purchase a particular land or a particular house. So, question of Civil Court in view of Specific Performance Act does not arise at all. The O.Ps should aware that Section 3 of the C.P Act, 1986  has clearly demonstrate that the provision of this Act shall be in addition to and not in derogation of the provision of any other Law for the time being in force. So, complainant is a consumer and he will get protection from the act of the O.P by not providing the flat which is agreed to be provided  after accepting Rs.10 lac from time to time out of Rs.12,50,000/-. It may be mentioned here that when after agreement between the parties and accepting almost all consideration money ,cause of action is continuous cause of action in view of the order of the Hon’ble Apex Court. It is also appearing from the letter dated 28.1.2015 issued by the O.P Subrata Nath in his letter head that he has accepted Rs.10 lacs as an advance from the complainant Sri Subhas Chandra Bhowmick toward the advance money by a flat and he has also assured to hand over possession of the flat within 20.2.2015 ,otherwise he is duty bound to refund the said money along with extra Rs. 1Lac. This letter was signed by Subrata Nath and we have , in our naked eye, compared the signature with the admitted signature of Subrata Nath appearing in the vakalatnama filed by the ld. Advocate of Subrata Nath. So, we are satisfied that the signature is the signature of the O.P appearing in the letter dated 28.1.2015 which is in addition to the agreement for sale. So, there is no dispute in our mind that the complainant has paid entire Rs.10 lacs for a flat which is a dream of a common people for their shelter but O.P for wrongful gain grabbed the said money inspite of undertaking to refund the same if O.P failed to deliver possession within 20.2.2015 ,then the said money will be refunded but the said refund has not yet been made along with further Rs.1 lac which was agreed to be paid by the O.P to the complainant ,that is why, complainant compelled to come before this Bench for proper redressal.

            We have considered all pros and cons  and even the version of the O.P appearing in each and every para of the written version ,wherefrom it derives that O.P wanted to prove that complainant is not in clean hand , but our view is that O.P is not in clean hand and he wanted to grab money for the reasons best known to them ,because after executing the agreement for sale and accepting the major money of Rs.10 lacs out of Rs.`12,50,000/- , he is duty bound to deliver possession and at best he can demand remaining money but not misdirected this Bench that this type of allegation is n9ot maintainable within the purview of the C.P Act and the same will be decided by the Civil Court.

            The O.P  is not aware the settled principle of Law. So, we find that O.P acted deficiency in service as well as unfair trade practice by grabbing the said money and thereby complainant’s allegation has been proved and O.P acted deficiency in service and unfair trade practice by not handing over possession of the flat in dispute, even alternatively not refunded the entire advance money as well as extra Rs.1 lac inspite of assurance by letter dated 28.1.2015 ,wherein the signature of the O.P is identical comparing with the admitted signature of vakalatnama filed by the Ld. Advocate of the O.P. Thus on a moment scrutiny we are highly satisfied regarding the claim of the complainant.

 

            Hence,

                                                                        Ordered

That the application under section 12 of the C.P Act is allowed on contest against the O.P with a cost of Rs.30,000/- .

The O.P is hereby directed to hand over the peaceful possession of the flat in dispute and to execute and register the deed of conveyance in respect of the flat in dispute  named “Indradhanu Apartment” (Flat no.C1 measuring 510 sq.ft super built up area) within one month from the date of this order, failing which, O.P is directed to refund the said Rs.10Lacs to the O.P along with agreed Rs.1 lac plus interest @9% from the date of this order till its realization.

The O.P is further directed to pay compensation for the mental agony and harassment and also considering the fact that nowadays it is very difficult to get such a flat within the said amount of Rs.12,50,000/- . So, this is a glaring example of harassment for which ,compensation is assessed at Rs.3lacs which have to be paid by the O.P within one month from the date of this order failing which, the O.P is at liberty to getr the order executed through this Forum.  

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                                               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 on contest against the O.P with a cost of Rs.30,000/- .

The O.P is hereby directed to hand over the peaceful possession of the flat in dispute and to execute and register the deed of conveyance in respect of the flat in dispute  named “Indradhanu Apartment” (Flat no.C1 measuring 510 sq.ft super built up area) within one month from the date of this order, failing which, O.P is directed to refund the said Rs.10Lacs to the O.P along with agreed Rs.1 lac plus interest @9% from the date of this order till its realization.

The O.P is further directed to pay compensation for the mental agony and harassment and also considering the fact that nowadays it is very difficult to get such a flat within the said amount of Rs.12,50,000/- . So, this is a glaring example of harassment for which ,compensation is assessed at Rs.3lacs which have to be paid by the O.P within one month from the date of this order failing which, the O.P is at liberty to getr the order executed through this Forum. 

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                                               Member                                                                       President