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Govt. of West Bengal
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION –NADIA
170, DON BOSCO ROAD, AUSTIN MEMORIAL BUILDING
KRISHNAGAR, NADIA, PIN 741101, Telefax (03472) 257788
PRESENT : Shri dAMAN pROSAD BISWAS, PRESIDENT
: SMT MALLIKA SAMADDAR MEMBER
: SHRI NIROD BARAN ROY CHOWDHURY MEMBER
Case No. CC/66/2021
COMPLAINANT :1. George Gomes,
S/o. Late Joseph Gomes,
2. Bina Gomes
Wife of George Gomes
Permanent resident of:
Nagendranagar 4th. Lane,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia.
AND
Temporary address:
149/10(P)
Southern Park, P.O. Sarsuna,
Kolkata-700 061.
V-E-R-S-U-S
OPPOSITE PARTIES / 1.Proprietor:-Asish Ghosh
M/s. Moon Abasan Pvt. Ltd.,
62, Lenin Sarani, Kolkata-700 013.
2. Sri Ashish Ghosh,
Being the Director of
M/s. Moon Abasan Pvt. Ltd.
62,Kenin Sarani.
Kolkata- 700 013.
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Ld. Advocate(s)
For Complainant: Safikul Alam
For OP/OPs : Samir Bhattacharya
Date of filing of the case :13.08.2021
Date of Disposal of the case : 15.06.2023
Final Order / Judgment dtd.15.06.2023
Complainants above named filed the present complaint u/s 35 of the Consumer Protection Act, 2019 against the aforesaid opposite parties praying for direction to arrange the deed of lease and registered in favour of the petitioners, make refund a sum of Rs.3,84,000/-, to give one car parking space, compensation amounting to Rs.1,00,000/- and cost of the case.
Complainants alleged that an agreement of lease dated 10.03.2004 was executed in between complainants and opposite parties for a residential unit continuing super built up area 1053 Sq. ft. with one car parking space at the ground floor. Opposite parties did not take any space regarding the said agreement. They did not give car parking space to the petitioner. Petitioner sent a legal notice to the opposite parties on 29.05.2017. Opposite parties did not take any space after receipt of the said notice. Petitioners went to the office of OPs on several times but all are in vain due to non-co-operation by the opposite parties. The property was initially under a trust and trustees perpetually leased out the premises and OPs are the present lesser of the said property. In the said agreement total consideration for the said flat along with car parking space was fixed to Rs.13,63,600/- which was duly paid by the petitioners. Petitioners had also made several additional payments and thereby they made payment of total sum of Rs.17,48,000/-. Even after the said payment opposite parties did not take any initiative for registration of the said flat. Hence, the complainants filed this case.
OP NO.1 & 2 filed W/V. They denied the entire allegations which has mentioned in the petition of complainants.
They further contended that agreement for lease was executed with certain terms and conditions with a total consideration amount of Rs.13,63,600/-. Complainant no.2 only paid Rs.12,28,120/- vide 4 cheques. That is vide cheque no.147402 dated 10.03.2004 amounting to Rs.2,73,600/-, cheque no.060903 dated 27.09.2004 amounting to Rs.5,45,440/-, cheque no.060961 dated 29.10.2004 amounting to Rs.2,00,000/- and cheque no.061095 dated 06.01.2005 amounting to
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Rs.2,09,080/-. OPs have given the possession of the flat to the complainant no.2. She is enjoying the same since 2007 without giving the full payment in favour of the OPs. They prayed for dismissal of the case.
Trial
During trial complainants filed affidavit in chief.
Documents
Complainants produced the following documents viz :
- Original Receipt of one lakh in respect of payment Rs.1,00,000/- through cheque no.198977 of SBI Overseas Branch dated 26.02.2007........(One sheet)
- Original Receipt of Rs.3,37,200/- through cheque no.147381 of Union Bank of India Taltala Branch dated 10.03.2004..........(One sheet)
- Original Receipt of Rs.4,21,200/- through cheque no. 147401 of Union Bank of India, Taltala Branch dated 10.03.2004........(One sheet)
- Original Receipt of Rs.1,00,000/- through cheque no.198979 of SBI Overseas Branch Kolkata from complainant no.1..........(One sheet)
- Certificate issued by Councillor Prokash Das dated 15.06.2022.......(One sheet)..........(Original)
- Original agreement dated 10.03.2004 executed in between Moon Abasan Pvt. Ltd. represented by Director Shri Ashsis Ghosh and complainants........(Original)
Brief Notes of Argument
Complainant filed BNA.
Decision with Reasons
We have carefully gone through the petition of complaint, W/V filed by the OP No.1 & 2, documents filed by the complainants, affidavit in chief filed by the complainants and BNA filed by the complainants. We have carefully considered the same.
On perusal of agreement dated 10.03.2004, we find that said agreement was executed in between complainants and opposite parties
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said agreement was executed relating to one flat being unit no. D situated on the 4th floor of the proposed building and also for one car parking space on the ground floor with the consideration of Rs.13,63,600/-. Out of the said amount complainants paid Rs.2,73,600/- on 10.03.2004 vide cheque no. 147402 (Cheque of Union Bank of India Taltala Branch). Rs. 5, 45,440/- was paid through cheque no.060903 dated 27.09.2004 (Cheque of SBI Bali Durgapur Branch) complainants paid amount of Rs.2,00,000/- vide cheque no. 060961 dated 31.10.2004 (SBI Bali Durgapur Branch). We also find that on 06.01.2005 complainants paid Rs.2,09,080/- vide cheque no. 061095 dated 06.01.2005 (Cheque no. SBI Bali Durgapur Branch).
Accordingly, we find that over the said agreement total payment has mentioned as Rs.12,28,120/-. As per the said agreement, there is a due of Rs.1,35,480/-. Complainants produced 4 receipts issued by. OP NO.2 dated 10.03.2004, 10.03.2004, 10.03.2004 and 26.04.2004 in respect of Rs.1,00,000/-, Rs.3,37,200/-, Rs.4,21,200/- and Rs.1,00,000/-. Amount of Rs.4,21,200/- was received from complainant no.2. Other two amounts have been received from one Francies Gomes who is not the party of this case.
On the aforesaid receipt, we find that there is a note that aforesaid receipts are valid subject to encashment. So it is the duty of the complainants to establish that aforesaid cheques have been duly encashed and OP No.2 had received the aforesaid amount. But complainants not yet produced bank pass book in support of the fact that aforesaid cheques have been duly encashed.
Complainants stated in the petition of complaint that he has paid Rs.17,48,000/- in favour of the OPs but he did not give any details account in respect of the aforesaid payment.
On perusal of agreement, we find that complainants had paid Rs.12,28,120/- and there is a due amounting to Rs.1,35,480/-. OP NO.1 & 2 stated in their W/V that complainants have paid Rs.12,28,120/- and there is a due of an amount of Rs.1,35,480/-.
In view of the aforesaid discussion, it is clear before us that there is a due of Rs.1,35,480/-.
On perusal of record, we find that it is clear before us that complainants are the consumer and the opposite parties are the service provider.
Having regard to the aforesaid discussion, it is clear before us that complainants have able to established their claim in part.
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In the result, present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed in part on contest against OP No.1 &2 with cost of Rs.5,000/- (Rupees five thousand) to be paid by the OP NO.1 & 2 in favour of the complainants.
OP NO.1& 2 are directed to execute the sale deed in favour of the complainants after taking the due amount to Rs.1,35,480/-(Rupee One lakh thirty five thousand four hundred eighty) within a period of one month failing which the complainants shall have liberty to put this order into execution.
Considering the facts and circumstances of this case prayer for compensation against the opposite parties is not allowed.
Let a copy of this judgment be supplied to both the parties as free of costs.
Dictated & corrected by me
............................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
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MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
