DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C.C. NO.- 454/2018
Date of Filing Date of Admission Date of Disposal:
06.12.2018 11.12.2018 16.09.2019
Complainant/s:- 1. Smt. Leena Sengupta
W/O Anjan Kumar Sengupta.
2. Mr. Anjan Kumar Sengupta
S/O Surat Sengupata
Both are residing at
D/128, Kabi Satyendranath Dutta Sarani,
Sector-II-A, Aranyak, Bidhannagar,
Durgapur, Burdwan, Dist- Burdwan,
Pin- 713212
=Vs=
Opposite Party/s:- 1. Sri Biplab Mandal,
S/O Late Kshetra Mohan Mandal,
2. Smt. Rupa Mandal
W/O Sri Biplab Mandal
Both are residing at
77, Rabindra Nagar, P.O- Nimta
P.S- Nimta, Dist- North 24 Pgs.
Kolkata- 700049
P R E S E N T :- Sri Karna Prasad Burman…………………. President.
:- Sri Subhas Chandra Chakraborty........... Member.
:- Smt. Monisha Shaw …………………………. Member.
Judgment
Non-refund of the principal amount deposited as advance for the purchase of a flat measuring about 490 sqft. by the Op construction company has obliged the purchaser of the flat herein the complainant to lodge this complaint for redressal under Section 12 of the C.P Act, 1986.
The epitomised facts of the case is that the complainant booked a flat covering an area of 490 sqft. under North Dum Dum Municipality area under Schedule B (mentioned in the complaint), which is a part of the scheduled A (mentioned in the complaint) property as stated in the Agreement for Sale executed between the parties on 16.03.2015 at a total consideration of Rs. 12,50,000/-. The complainant has paid Rs. 6,50,000/- of the total value and the rest amount of Rs. 6,00,000/- were said to be paid on or before registration of Final Deed of Conveyance within July 2016. But the Op have failed to give possession of the flat within the date and after much pursuance have handed over a cheque amounting to Rs. 6,75,000/- bearing no. 139410 dt. 30.07.2018 on PNB, Dunlop Branch, drawn in favour of the complainant no. 2 namely Sri Anjan Kumar Sengupta, but the cheque has been dishonoured. The complainant sent a legal notice dt. 25.08.2018 and 27.08.2018, but the Op had paid no heed to such notice. This has been found as a gross deficiency in service on the part of the Ops. Hence the complainant has prayed for refund of the deposited amount of Rs. 6,50,000/- along with a compensation of Rs. 3,00,000/- and litigation cost of Rs. 20,000/-.
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C.C No- 454/2018
As per postal track report the summons have been returned with endorsement as ‘unclaimed’, that tantamount to good service. In terms of the order no. 02 dt. 18.03.2019 of this Forum, ex parte hearing proceed against the Ops.
The complainants have filed some documents with firisti (kept with the record), support of his cause of complaint. All the documents and evidences filed by the complainant have been taken into consideration in absence of Ops’ statements.
Points for Discussion:
- Are the complainants Consumers to the Ops as per Provision laid down under Section 2(1)(d)(ii) of the C.P Act, 1986?
- Is the instant complaint within the jurisdiction of this Forum for Trial?
- Is there any deficiency in service on part of the Ops?
- To what other relief/reliefs the complainants are entitled?
Decisions with reasons:
Considering the facts and circumstances and nature and character of this case all the points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience.
Since with the strength of the aforesaid agreement for sale the complainants have booked the B Scheduled flat for purchase at a consideration amount at Rs. 12,50,000/- from the Ops within July, 2016 as such the complainant acquired status as Consumer as per Provision laid down under Section 2(1)(d)(ii) C.P Act, 1986.
Both the Ops reside in the territory of this Forum and the suit property (flat) is also situated in its jurisdiction and the claim amount does not exceed the pecuniary limit of this Fora. As such this Forum has ample power to Try this case.
It is evident from the documents filed by the Complainants in firisti along with supportive affidavit that an Agreement for Sale of a flat of 490 sqft at Holding number 130(403), Alipore (West), Kolkata- 700049 under Ward number 31 of North Dum Dum Municipality under Nimta Police Station, District North 24 Parganas was signed between the Complainants and the Ops on 16.03.2015 and it was affirmed in the terms of the Agreement that the Final Deed of Conveyance will be made within July 2016. The purchaser herein the Complainants have deposited Rs. 6,50,000/- to the Ops between the period 24.02.2015 and 06.04.2015 in three instalments by NEFT and cheques out of Rs. 12,50,000/- as considered value of the said flat. The rest amount was to be deposited to the Ops on the date of Final Deed of Conveyance which had not been done till the date of filing of this Complaint on 06.12.2018. Moreover, with some persuasion, the Ops have refunded Rs. 6,75,000/- with interest on 6,50,000/- by a cheque bearing no. 139410 dt. 30.07.2018 on Panjab National Bank, Dunlop Bridge Branch. But this cheque also has been dishonoured due to lack in fund with the account of the Ops’ account of the Bank. So, it is clear that the complainant came to an agreement in writing by paying advance money for the purchase of a flat, so,
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C.C No- 454/2018
being the Consumer to the Ops who have failed to fulfil the terms and conditions of the Agreement dt. 16.03.2015. Here a deficiency in service lies on the part of the Ops.
Whereas the complainant received the cheque amounting to Rs. 6,75,000/- from the Ops (though it was dishonoured) as such to avoid multiplicity of cases between the parties in future we are of the view that it should be justified to direct the Ops to refund the advanced amount to the complainant with interest. The other relief/reliefs for which the complainants are entitled that should be reflected in the ordering portion.
Thus all the points are disposed of accordingly.
Fees paid are correct.
Hence for ends of Justice it is
Ordered
that the instant case be and same is allowed ex parte with costs.
The Ops are directed to refund the advance amount of Rs. 6,50,000/- with a compound interest @ 8% for the period from their last payment on 08.04.2015 upto the date of this order to the Complainants within 30 days from the date of this order, failing which an additional interest @ 10% will be incurred up to the date of full realisation of the principal amount with an interest accrued thereon as per order stated earlier.
It is further ordered that the Ops will pay a compensation amounting 30,000/-(Thirty thousand) only for causing mental pain & agony to the complainant within 30day from the date of this order, failing which an interest @ 8% P.A will be incurred till the full realisation of the same amount.
Ops are further directed to pay Rs. 5,000/- as litigation cost within 30 days.
The Complainants are at liberty to put the order into execution as per Law.
Let plain copy of this order be supplied to the parties free of cost as per the provision of the CPR, 2005.
The Registry-in-charge of this Office is instructed to send a copy of this order to the Ops immediately.
Dictated & Corrected By
Member
We concur
Member President
