1. The complaint case has been filed by the complainant u/s 12 of Consumer Protection Act against the O.P. for illegally and arbitrarily not executed the agreement for taken shop room through auction from the O.Ps, although deposited auction money through different cheque time to time in favor of the O.Ps.

2. The complainant being an unemployed for taking shop room no. 2 in auction bid vide information no. 02/2014-15 under memo no. 2210/DNP dt. 15.09.14 of Nagar Parishad, Dumka, deposited amount of Rs 83,250 vide cheque no. 973862 dt. 17.07.15 and Rs 1,20,000 vide cheque no. 290527 dt. 17.07.15 in the office of Dumka Nagar Parishad and thereafter Rs 2,08,250 through cheque no. 042199 dt. 16.01.17 in favor of the O.Ps. for executing agreement and allotment of the said shop for starting business as per direction of the O.P. No. 1 but no information regarding the agreement nor executed any such agreement between the O.Ps. and the complainant even after several attempts made for the purpose for more than one year.

3. Due to such negligency, carelessness and irresponsibility on the part of the O.Ps. the complainant has been much harassed although several attempts made by the complainant for execution of the said agreement of shop room in between them. In such circumstances the complainant was compelled to file an application on 20.01.17 before the O.Ps. claiming execution of agreement which was duly forwarded by the Vice Chairman Nagar Parishad, Dumka to the Executive Officer, Dumka Municipality i.e; O.P. No. 1 and also its copy was forwarded to Chairperson Dumka Nagar Parishad duly informing the matter but no effect.

4. Thereafter, on 02.02.17 the complainant again approached with an application with details description to the O.Ps. for execution of agreement so that the monthly rent be paid showing the O.Ps. about the deposited amount in favor of O.Ps. Not only this but also on 26.06.17 the complainant again approached and to deliver shop room no. 2 to the complainant for starting business but neither they made any agreement nor the O.Ps. delivered the shop room to the complainant. As a result neither the complainant succeeded to run her business in the allotted shop room on bid nor refunded the amount so deposited with the O.Ps. and even after several requests made for refund of the deposited amount thereafter not refunded the said amount to the complainant for which she is suffering from mental tension, agony, harassment and physically disturbed having no source of income resulting starvation for sitting idle for a considerable period and such illegal and wrongful activities indicate cheating and misappropriation of the amount so paid by the complainant which comes under criminal action. As such, the complainant is entitled to get refund of her entire amount of Rs 4,16,500 so deposited with O.Ps. with interest and litigation cost as well as compensation for such harassment.

5. The cause of action arose when the O.P neglected and did not executed the agreement and compelled the complainant to file an application on 20.01.17 for execution of agreement and further arose on 02.02.17 and on subsequent dates and lastly on 26.06.17.

6. The complainant has prayed that O.P. be directed to refund the following –

1. The principal amount of Rs 4,16,500 with an interest of 18% till date of payment.
2.  O.P. may also be directed to pay an amount of Rs 50,000 for harassment caused along with mental tension and agony as compensation.
3. O.P. may also be directed to pay Rs 20,000 as litigation cost.

7. The O.P. No. 2 did not appear in spite of proper summon as such by order dt. 18.05.18. Thus, this case was heard exparte against him. The O.P. No. 1 Executive Officer Nagar Parishad, Dumka appeared on 30.07.18 and also filed his WS. Apart from that another WS has also been filed on behalf of the O.P. which is also on record, filed on 18.04.22. It is further submitted that on behalf of the O.P. this proceedings is not maintainable and fit to be dismissed.  

8. He further submitted that the petitioner who is tenderer and occucenated with higher amount and got a shop vide no. 2 in Nagar Parishad, Dumka campus on 09.06.14 on the basis of security money of Rs 4,16,500. It is further submitted that the petitioner who deposited the said money partly in several times as Rs 83,250 dt. 15.09.14 + Rs 1,20,000 dt. 17.07.15 and        Rs 2,08,250 dt. 18.01.17 in total Rs 4,11,500 only. It is further submitted that office of the O.P. Dumka, Nagar Parishad corresponded with petitioner vide letter no. 824 dt. 15.09.14 and letter no. 2213 dt. 02.06.15 for doing agreement with Dumka Nagar Parishad and she handed her key of the shop for starting her business but she cannot turn up before the O.P. for doing agreement. 

9. And it is further submitted that she placed her agreement paper with her signed and witness signed on 16.01.17 and after that the O.P. signed upon this agreement dt. 24.01.17 within 8 days out of delay. The petitioner is accordingly bounded by rule and provision that she will pay its rental amount in Dumka Nagar Parishad from the date of execution of date of agreement but she failed. The legal notice served to the O.P. on 09.11.17 with blaming that the O.P. did not do agreement with the petitioner after deposition of earnest money in regards and this is fraudness with the petitioner totally baseless and wrong. It is further submitted that the petitioner who is an engineer and doing job in Tata Steel hence she did not take hand key of the shop this is the fact.

10.  It is further submitted that after passing of more than 1 year the office issued a notice to the petitioner with saying that she deposits the rental amount of Rs 14,120 from February 2017 to December 2017 vide letter no. 128 dt. 23.01.18 but she did not respond this regard. The petitioner who did not wants to hand the premises and wants to refund her earnest money and hence she filed this petition before thos court knowingly to harass and damage the prestige of the O.P. and Dumka Nagar Parishad. This proceeding is not maintnable and it is fit for dismissal. And further prayed to accept the WS and dismiss the proceedings for the ends of justice.

11. The main point for the determination in this case is that whether the complainant is entitled to get any relief or reliefs as claimed !

                                       Findings

The complainant in support of his case has filed oral and documentary evidence both. He has filed some affidavit of the witnesses as oral documents which are as follows -

 CW1 – Rinkita Dey

CW2 – Santosh Kumar Dey

CW3 – Sudipta Nandi

CW4 – Sadhu Charan Mandal

Following are the documentary evidences :-

Exhibit 1 – is the banker’s cheque no. 924416 dt. 09.06.14 drawn in favor of karyapalak padadhikari, Nagar parishad, Dumka amounting Rs 4,750

Exhibit 2 – is the postal receipt.

Exhibit 3 – is the letter of Ritika Dey dt. 02.02.17 to Chairperson of Dumka Nagar parishad for agreement and handed over of the Shop room no. 2 at Municipal Premises.

Exhibit 4 – is the photocopy of 3 sheets of the cheque of different dates.

Exhibit 5 – is the letter by the complainant to the Chairperson of Dumka Nagar Parishad dt. 20.02.17 for agreement and handed over of the shop no. 2 at Dumka Municipality

Exhibit 6 – is also the letter of the complainant dt. 26.06.17 to Mr. Pankaj Kumar, special officer of Dumka Nagar Parishad regarding executive of agreement and possession of shop no. 2 at munipality premises

Exhibit 7 – is the letter by the complainant to karyapalak Padadhikari Nagar Parishad, Dumka dt. 20.01.17

Exhibit 8 – is the pleader notice dt. 16.09.17 by the complainant to the O.Ps.

The O.P. has not filed any oral and documentary evidences in support of his case but simply filed some documents in support of his case which are as follows :-            

1. Xerox copy of agreement.
2. Xerox copy of Letter no. 128 dt. 23.01.18
3. Xerox copies of petitioner’s appointment letter
4. Xerox copies of bill of rental dues.

         Apart from that no other oral or documentary evidence has been adduced on behalf of the O.P. in support of his case.

12.  Heard the Learned Counsel of both the parties perused the documents and affidavit of witnesses adduced on behalf of the complainant and also documents of the O.P. and also perused the case record. From carefully scrutinizing and analyzing the evidences adduced on behalf of parties it is admitted fact that the complainant was allotted the shop mo. 2 by Nagar Parishad, Dumka in light of memo no. 2210 DNP dt. 15.09.14 relating to the information no. 2/2014-2015 and it is admitted fact that in compliance of auction money the complainant deposited money amounting to Rs 83,250 vide cheque no. 973862 dt. 17.07.15,                 Rs 1,20,000 vide cheque no. 290527 dt. 17.07.15 and Rs 2,08,250 vide cheque no. 042189 dt. 16.01.17 which is apparent from Exhibit 4 which is receipt issued by Dumka Municipality and from perusal of Exhibit 1 it also appears that the complainant deposited Rs 4,750 by Banker’s cheque in favor of karyapalak Padadhikari, Nagar Parishad, Dumka on 09.06.14. In this way, the complainant deposited total Rs 4,16,250 with regard to shop no. 2 of Nagar Parishad, Dumka.

13. The main dispute between the parties and the allegation of the complainant that in spite of receiving the total auction money the O.P. did not gave the possession of the shop in question and also not met the agreement timely. And due to that negligence of the O.P. the dream of the complainant to run her business in the allotted shop was ruined. The complainant made several attempts with O.P. to execute the agreement and hand over the possession of the shop in question but O.P. did not execute the agreement. Apart from that he compelled the complainant to file an application for executing the agreement and further on 02.02.17 and subsequent dates and lastly on 26.06.17. The complainant wrote several letters to the O.P. regarding memo execution of the agreement and the possession of shop no. 2 at Municipal premises.

14. He drew the attention of the commission towards Exhibit 3, 4, 5, 6 and 7. Exhibit 3 is the letter dt. 02.02.17 written by complainant, Rinkita Dey to the Chairperson of Dumka Nagar Parishad in which he has clearly mentioned that he has already deposited the auction money and visited several times of the office of the O.P. and requested and filed the agreement paper in duplicate but till now executive officer has neither signed in the agreement nor handed over the shop no. 2.

15. Exhibit 5 is the photocopy of the letter dt. 20.02.17 written by the complainant, Rinkita Dey to the chairperson of Dumka Nagar Parishad regarding the agreement and hand over of the shop no. 2 at Municipal premises and same request was made by the complainant. Exhibit – 6 is the photocopy of the letter dt. 26.06.17 written by the complainant to the O.P. requesting the same prayer and Exhibit – 7 is the letter dt. 20.01.17 written by the complainant to the O.P. i.e; Executive Officer Nagar Parishad, Dumka requesting him to made the agreement of the shop and also handing over the possession of the shop in question.

16. Apart from that the O.P. in his WS in Para 6 further submitted that office of the O.P. Dumka, Nagar Parishad corresponded with petitioner vide letter no. 824 dt. 15.09.14 and letter no. 2213 dt. 02.06.15 for doing agreement with Dumka Nagar Parishad and she handed her key of the shop for starting her business but she cannot turn up before the O.P. for doing agreement. Further, she placed her agreement paper with her signed and witness signed on 16.01.17 and after that the O.P. signed upon this agreement dt. 24.01.17 within 8 days out of delay. The O.P. has taken plea that he tried his best to execute the agreement and in this regard he also send letters to the complainant, i.e; letter no. 824 dt. 15.09.14 and letter no. 2213 dt. 02.06.15. But no such type of letters has been adduced by the O.P. before this commission.

17. From the perusal of agreement papers it appears that the complainant after signing the agreement papers submitted before the Nagar Parishad, Dumka on 16.01.17 but the Executive Officer signed on that agreement on 24.01.17. From carefully going through the agreement it is apparent that this agreement on                 dt. 24.01.17   is unregistered and it is unilateral. It is only executed by Rinkita Dey, the complainant and Execution Officer of Dumka, Nagar Parishad simply signed on 24.01.17.   

18. It is also admitted that the possession of the shop in question was never given to the complainant by the O.P. In Para 6 of his WS it is clearly stated that handing over key of the shop for starting her business but she cannot turn up before the O.P. for executing the agreement and in Para 10 further states that she did not take key of the shop no. 2 that is the fact. The CW1 Rinkita Dey in Para 8 has stated that Executive Officer Nagar Parishad, Dumka has not handed over key of the shop till date. CW2 Santosh Kumar Dey in Para 4 has clearly stated that the possession of the shop was not given to the complainant. CW3 is Sudipta Nandi in Para 6 has clearly stated that no shop was given to the complainant and CW4 has also corroborated this fact.

19. It is clearly establish from the aforesaid fact that the possession of the shop in question was never given to the complainant. And from perusal of said agreement there is no recital regarding this possession shop in question was handed over to the complainant from the date of execution of the agreement i.e; 24.01.17. It is submitted on behalf of the O.P. that the complainant has not paid the rent of the said shop since February 2017 to April 2022 amounting to Rs 90,872. In Para 11 of his WS he has clearly mentioned that after passing of more than 1 year after the issue of notice the petitioner not deposited the rental amount of Rs 14,120 from February 2017 to December 22 vide his letter no. 126 dt. 23.01.18 but she did not respond the record. But no such type of letter has been filed before this commission by the O.P. Simply a bill has been filed before this commission regarding the non – payment of            shop no. 2 by Rinkita Dey since February 2017 to December 2022 amounting to Rs 90,872.  This bill is unsigned. Since the possession of the shop in question was never given to the complainant by the O.P. then question of payment of rent does not arise. I find no force behind this argument of the O.P.

20. Considering the above points, documents and the arguments advanced by both the parties we come to the conclusion that O.P. intentionally, illegally and arbitrarily not executed the agreement for shop no. 2 which was auctioned to complainant in the light of memo no. 2210 DNP dt. 15.09.14 of Dumka Nagar Parishad vide information no. 2/ 2014- 2015 and the O.P. us also held liable for not allotting the shop no. 2 and also not giving the possession of the said to the complainant after receiving the entire auction amount of Rs 4,16,500. As such the O.Ps are jointly and severally liable for this negligence on their part and also held deficient in services. It is therefore,

                                            Ordered

           That both the O.Ps. are jointly and severally directed to refund the principal amount of Rs 4,16,500 with interest @ 12% p.a. from filing of the case till date of payment to the complainant. O.Ps. are further directed to pay amount of Rs 50,000 as compensation for harassment and mental agony to the complainant. Both the O.Ps. are further directed to pay Rs 20,000 as cost of litigation also to the complainant.

            Both O.Ps. are directed to make the payment to the complainant within 30 days from the order of this commission. Thus, this case is disposed of on contest in favor of the complainant.

Let the copy of this judgment be supplied to both the parties free of cost. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties. File to be consigned to record room along with copy of this judgment.