DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

   SOUTH 24 – PARGANAS,

   AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144

             C.C. CASE NO. 14  OF 2019

DATE OF FILING: 25.01.2019                  DATE OF JUDGEMENT:  30.8.2019

Present                 :   President       :   Ananta Kumar Kapri

                                 Member         :   Jhunu Prasad                        

COMPLAINANT      : Mani Kanta Sardar,s/o late Basanta Kumar Sardar, C/o Santosh Kumar H. Kurmi, Flat-202, Plot -55, Sector-1 Ulwe, Navi Mumbai, Maharashtra, P.o CBD Belapur, P.S Panvel, Pin-410206.

• VERSUS  -

O.P/O.Ps                    :   1. The Director(s), Brainer Infra LLP., at 102, Jay Sree Gajanan Apartment, Opp. To Infant Jesus School, Chincholi Bunder Road, Malad West, Mumbai 400064.

                                     2.   Mr. Sanjeev Chakraborty, Body Corporate DP Nominee & Director, Brainer Infra LLP., Dowark Shree Krishna Garden, Flat no.10B, 1/1, Raja R.L Mitra Road, P.O Beliaghata, Kolkata-70008.

                                  3.    The owner, Roopkatha Housing Project RCBS Realty Pvt. Ltd. G-158, Rajdanga Road, Kolkata-`107, site office at Ram Nagar, P.O & P.S Baruipur, Kolkata-144.           

___________________________________________________________________

JUDGMENT

Sri Ananta Kumar Kapri, President

             Facts leading to the filing of the instant case may be epitomized as follows.

             An agreement for sale was executed by and between the complainant and the O.P nos. 1 and 2 i.e the developers on 15.12.2017 and thereby the developers agreed to sell a self contained flat as succinctly described in Schedule to the Agreement for sale , for a total consideration price of Rs.10,86,000/-. The complainant paid Rs.2,79,664/- to the developers on different dates. But, the complainant came to see no progress of the project work of the developers and, therefore, they demanded refund of the price paid by them to the developers. The developers did not refund the said price and, therefore, the instant case is filed by the complainant against the developers, alleging deficiency in service on their part.

            The developers i.e O.P nos. 1 and 2 have not turned up to contest the case. Therefore, the case proceeds exparte against them.

            It is O.P-3 who has filed written statement to contest herein. According to the averment of the land owner, he is not service provider of the complainant and, therefore, he is not liable for refund of the money to the complainant.     

             Upon the averments of the parties, the following points are formulated for consideration.

                                      POINT FOR DETERMINATION

1. Are the O.Ps  guilty of deficiency in service as alleged by the complainant?
2. Is the complainant entitled to get relief or reliefs, if any,  as prayed for?

  EVIDENCE OF THE PARTIES    

          The contesting parties have filed evidence on affidavit and the same are kept in the record after consideration.

DECISION WITH REASONS

Point no.1 & 2 :

           In the instant case, it is stated on oath by the complainant that they paid Rs.2,79,664/- to the developers i.e O.P nos. 1 and 2. A Memo of consideration is also attached to the sale agreement and it is available from the sale agreement that the complainant has actually paid Rs.2,79,664/- to the developers.  Now, the complainant has prayed for refund of the said money from the said developers.

          The complainant is entitled to get refund of such money from the developers only when she has cancelled the agreement. It is not stated by the complainant in so many words in their petition of complaint that they have cancelled the sale agreement. No document has also been filed by the complainant to establish that the agreement which was executed by them with the developers was cancelled.

          But, one thing should be taken into consideration . The filing of the instant case ,wherein the complainant has stated that they have cancelled the agreement which was executed in favour of the developers, appears to be sufficient enough to cancel the sale agreement. The petition of complaint is treated as a valid document for cancellation of the sale agreement and this being so, the complainant is deemed entitled to refund of the consideration price paid by them to the developers.

         Accordingly, the order is passed as hereunder. 

           In the result, the case succeeds in part.

            Hence,

                                                                   ORDERED

            That the complaint case be and the same is decreed exparte against the O.P nos.1 and  2  , and dismissed on contest against O.P-3 .

           The O.P nos. 1 and 2 , who are jointly and severally liable for payment to the complainant, are directed to refund Rs.2,79,664/- to the complainant within a month of this order, failing which, the said amount i.e refund amount will bear interest @8% p.a till full realization thereof.

          No compensation for harassment and mental agony is awarded to the complainant for the reason that the sale agreement is cancelled by the complainant before the completion of the agreement period i.e at premature stage. 

           Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.

                                                                                                                   President

I / We agree

                                                          Member

          Dictated and corrected by me

                             President