Date of filing: 07.07.2017 Date of disposal: 20.03.2018
Complainant: Satyanarayan Mondal, S/o. Prahlad Chandra Mondal, resident of Gopeswar Pally, Bishnupur, District: Bankura, PIN – 711 122
Opposite Party: 1. The Director, Hahnemann Housing & Development (P) Ltd., Having its office Branch Office at Durgapur, Sanjib Sarani, Aesby More, Durgapur, District: Burdwan, PIN – 713 213.
2. Hahnemann Housing & Development (P) Ltd., represented by its Director, Having its Office at Durgapur, Sanjib Sarani, Aesby More, Durgapur, District: Burdwan, PIN – 713 213.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party No. 1&2: None (ex parte).
J U D G E M E N T
This complaint is filed by the complainant alleging deficiency in service and unfair trade practice against the Ops as the Ops have not handed over the allotted land as per agreement by and between the parties.
The case of the complainant in brief is that complainant after consulting with their friends and relatives, came to learn that the Ops are selling plots by creating a project, namely, “Santiban-VI” in reasonable price along with basic structure and on consultation with Ops the complainant agreed to sold a piece of land in the projected area for Rs. 2, 25,000=00. Thereafter consultation with the OPs the complainant made payment of Rs. 45,000=00 on 27.12.2011 and the OP-1&2 issued a money receipt and they also issued a certificate of booking on 27.12.2011, which is valid up to 27.01.2015 in favour of the complainant as required booking amount and on payment of such booking amount the Ops would execute an agreement for sale with them. From the certificate it will appear that the Ops had registered the booking of scheduled mentioned plot in favour of the complainant vide B.F. No. 293949. From the beginning the Ops were reluctant to make the agreement and after several request the Ops made the agreement for sale on 23.08.2012. The Ops also issued a book of EMI as the remaining amount had to be paid by the complainant in 36 installments. The complainant paid Rs. 85,000=00 to the Ops on 21.8.2012.
As per agreement the complainant paid the total price of Rs. 2,25,000=00, excluding the booking amount in 36 installments and the Ops are bound to complete all necessary works at the schedule mentioned plot and hand over the same within 3 years i.e. within 22.8.2015. As per agreement in case of withdrawal from the scheme after full payment receipt amount will be refunded in full along with interest as mentioned in Clause 6 & 12.
Inspite of all installments the Ops failed to fulfill their parts and liabilities by way of non-completion of the work as well as execution of the registered Deed of Sale in favour of the complainant. Finding no other alternative they desired to withdraw the booking from the scheme and requested the Ops to refund their money as per agreement and the Ops also agreed to refund the same, for which the Ops asked the complainant for submitting all the original documents before them and the complainant submitted all the original documents before the Ops on 24.04.2015 and the Ops issued a receipt in favour of the complainant on the same day. On 26.9.2015 the Ops agreed to refund the amount in two installments through RTGS, but very unfortunately inspite of compliance of all formalities, the complainant did not get back her money from the Ops.
After submitting all the documents before the Ops, for several times requested them for refunding their money but the Ops did not bother to give any reply to the complainant. Being so aggrieved the complainant knocked the door of the Durgapur Consumer Affairs Department and lastly compelled to file the present case before this ld. Forum with a prayer for directing the OPs to refund an amount of Rs. 2, 25,000=00 with interest as per agreement from 22.08.2015 to date of realization, directing the Ops to pay a sum of Rs. 1, 00,000=00 towards mental pain, agony and harassment and a sum of Rs. 20,000=00 towards litigation cost.
The cause of action arose firstly on 22.8.2015 and from 10.3.2015. After filing the present application, the complainant sent proper notice to the O.Ps. and the O.Ps. also received the same but failed to appear and accordingly it is fixed for exparte hearing.
Now points for consideration:
Whether the complainant able to prove that she is entitled to receive total payment i.e., Rs. 2, 25,000=00 along with other claims from the Ops?
Let us consider how far complainant has able to prove the same against the Ops.
Decision with reasons:
To prove the allegation against the Ops the complainant has filed their evidence-in-chief through affidavit along with documents which are (i) Xerox copies of booking certificate dated 27.12.2011, (ii) Xerox copy of payment of Rs. 45,000=00 dated 27.12.2011, (iii) Agreement for sale, (iv) Xerox copy of receipt of documents dated 24.4.2015, (vi) Xerox copies of first page of bank pass book and transaction through bank from 22.03.2011 to 02.07.2015 in the name of Mr. Asit Baran Mondal & Aruna Rani Mondal of 2/7, Ranapratap Road, Durgapur -4, Durgapur.
In the instant claim application the complainant has filed the present claim application on the ground that as agreement was excluded in between him with the opposite parties as he wants to purchase land, namely, Santiban –VI. Dist. Burdwan, Mouza Chapabandi, J.L. No. 44, Dag No. 386, PS: Faridpur, Plot No. 2407, total area 3 cottah and it was also settled that he should pay Rs. 45,000=00 as booking charge and also have to pay total amount of Rs. 2,25,000=00 to the Ops by 36 installments.
Now it further appears that to prove the same the complainant filed booking certificate which shows that he paid Rs. 45,000=00 to the OPs as booking amount and also able to produce the documents to show that he paid Rs. 85,000=00 to the Ops on 21.08,2012. But it appears that to prove the claim application, he paid total Rs. 2,25,000=00 to the Ops by 36 installments as per terms and conditions of the agreement, but he failed to produce the said documents which shows his actual payment. On the contrary he produced the Xerox copy of first page of Pass Book along with some pages which shows that the Pass Book belongs to one Mr. Asit Baran Mondal & Aruna Rani Mondal of 2/7, Ranapratap Road, Durgapur -4, Durgapur and the said Xerox copies of pages shows that amount which paid to the Ops through the Pass Book of Asit Baran Mondal & Aruna Rani Mondal but not through the Pass Book of the complainant – Satyanarayan Mondal.
It also appears that it is not the case of the complainant that he should pay the total valuation of land (against purchased land) to the Ops through the Bank Account of Asit Baran Mondal & Aruna Rani Mondal.
Under such circumstances, it is clear that the complainant has not appeared before the Forum with clean hands by producing proper/actual documents.
So, accordingly, the attitude of the complainant shows that he is failed to prove that he complied the terms and conditions of the agreement by paying full amount to the Ops. As such he fails to prove his own case and according to law he is not entitled to get any relief against the Ops.
Hence, it is
O r d e r e d
that the present Consumer Complaint being No. 120/2017 be and the same is dismissed ex parte against the OPs. There is no order as to costs.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Nivedita Ghosh) DCDRF, Burdwan
President
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
