DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT
CC- 55/2017
Date of Filing: Date of Admission:- Date of Disposal:
20.02.2019 01.03.2019 25.03.2019
Complainant :- 1. SRI AMIT KUMAR DAS
Son of late Birendra Chandra Das,
Residing at Tentultala, Purbachal,
Lane No.16, P.O.–Rajarhat Gopalpur,
P.S.-Airport, Kolkata-700136,
District-North 24 Parganas, West Bengal
Mobile: 9903609337
=Vs=
Opposite Parties :- 1. M/S. MAA TARA CONSTRUCTION
A Partnership Firm, having its office at
30, Italgacha Road, P.S.- Dum Dum,
P.O.- Dum Dum, Kolkata-700028,
Represented by its Partners namely
- NARAYAN CHANDRA GHOSH
Son of Late Biseswar Ghosh,
Durgabari Road, P.O. & P.S.- Dum Dum,
Kolkata-700028.
(2) MR. subash Chandra bose
Son of Late Nakuleswar Bose
Residing at 30, Italgacha Road,
P.O.&P.S.-Dum Dum, Kolkata-700028.
(3) MR. BIRU PAKSHYA PAUL
Son of Late Upendra Chandra Paul,
Residing at 67, West Kamalapur,
P.O.&P.S.- Dum Dum, Kolkata-700028.
(4) Mr. Kajal Dey
Son of Late Sankar Chandra Dey,
residing at 57, West Kamalapur,
P.O.&P.S.-Dum Dum, Kolkata-700028.
Mobile : 033 4063 0282
(5) MR. DEEP GHOSH
Son of Narayan Chandra Ghosh,
residing at 52, Durgabari Road,
P.O. & P.S.-Dum Dum, Kolkata-700 028
Mobile : 9874887362/9831015996
P R E S E N T :- Sri. Bankim Chandra Chattopadhyay………..…..President.
:- Smt. Silpi Majumder ……………………………………Member.
:- Smt. Monisha Shaw …………………………………….Member.
Contd…P/2
: 2 :
CC-55/2017
Judgment
This complaint is filed by the Complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the O.P.s as the O.P.s did not take any step to redress his grievance till filing of this complaint.
The Complainant stated that the Complainant entered into an Agreement fo Sale with Opposite Parties herein dated 22.11.2014, for purchasing ALL THAT Flat being No.3A on the second floor, North/West facing, Block-2 measuring about 750 sq.ft. Super Built Up area more or less consisting of 2 bedrooms, 1 living-cum-dinning, 1 kitchen, 1 toilet of the said building at holding No.168, Dr. J.R. Dhar Road, Ward No.11, under Dum Dum Municipality, in the District of North 24 Parganas together with proportionate and interest in the land ALL THAT piece and parcel of Bastu land measuring about 6 Cottahs 4 Chittacks and 27 sq.ft. lying and situated at Mouza- Sultanpur, P.S.-Dum Dum, Dag No.3046 under Khaitan No.139, J.L. No.10, Re, Sus, No.148, Touzi No.172 within the local limit of Dum Dum Municipality, being Holding No168, Dr. H.R. Dhar Road, Ward No.10 (old) at present 11, P.S.- Dum Dum, Kolkata-700028, under Additional District Sub Registry Office at Cossipore Dum Dum, in the District North 24 Parganas, at a total consideration of an amount of Rs.19,32,937/- (Rupees Nineteen lakhs thirty two thousand nine hundred thirty seven) only, which is within Jurisdiction.
The Complainant further stated that pursuant to the above mentioned Agreement for sale dated 20.11.2014, the Complainant initially paid to the Opposite Parties an amount of Rs.3,15,000/- only against the aforesaid and schedule below flat together within proportionate, undivided and indivisible share in the common portions described as in the above mentioned agreement for sale lying and situated at the schedule of the property mentioned as above.
The Complainant further stated that the break up of the aforesaid advance money of Rs.3,15,00/- (Rupees Three lakhs and fifteen thousand) only was as follows :- (i) a sum of Rs.2,90,000/- (Rupees Two lakhs and ninety thousand) only as advance amount towards the sale of the schedule below flat, (ii) Rs.20,000/- (Rupees Twenty thousand) only as advance amount towards Electric Meter and (iii) Rs.5,000/- (Rupees Five thousand) only as advance amount towards legal expenses regarding all the documents viz Agreement Paper, Sanctioned building plan and all related papers of land schedule.
The Complainant further stated that the Developer delivered to the Complainant only one sketch of the schedule below flat along with the agreement paper and said that Xerox copy of the sanctioned building plan will be provided later because there was no Xerox copy of the same at that point of time.
Contd…P/3
: 3 :
CC-55/2017
The Complainant further stated that in the aforesaid agreement for sale dated 22.11.2014 it was clearly recorded and stated that the developer will construct and make the flat tenantable within 12 months from the date of execution thereof.
The Complainant stated that the schedule time was expire on 21.11.2015 but the said flat was not completed within the said stipulated period of time of 12 months.
The said sale agreement was cancelled mutually on 28.12.2015 but they did not refund any money to the Complainant.
After some time the Complainant stated that he sent a representation vide letter dated 30.10.2016 to the office of the O.P.s for cancellation the same and asked them to refund the said amount Rs.3,15,000/- only with benefit and compensation and accordingly after receiving the said representation the O.P.s did not refund the same but only refunded to the Complainant of some of Rs.2,9,000/- only.
The Complainant further stated that thereafter he sent a further representation vide letter dated 23.11.2016 to the Office of the O.P.s but till date neither not sent any reply nor they have tried to contact him regarding the refunding of the outstanding money with compensation.
The Complainant further stated that the O.P.s are liable to refund the said outstanding money of Rs.25,000/- only and along with compensation to him that the Complainant as per said agreement for sale dated 22.11.2014.
The Prayer of the Complainant :
To refund the said Rs.25,000/- only along with compensation.
Award Costs of the proceedings.
The O.P.s are contested to file Written Version. In the Written Version the O.P.s are stated that it is admitted fact that they entered into an agreement for sale with the Complainant. The total consideration amount of the flat of Rs.19,32,937/- only. The O.P.s are admitted that the Complainant initially paid to the O.P.s of Rs.3,15,000/- only against the aforesaid and such below flat together with proportionate, undivided indivisible share in the common portion described as in the above mentioned agreement for sale lying and situated at the schedule of the property mentioned as above. Moreover from the money receipts it is crystal clear that the Complainant paid Rs.2,90,000/- than Rs.3,10,000/- from clause no.15 of the agreement for sale dated 20.11.2014 this fact would be more evident.
The O.P.s are further stated that out of Rs.3,15,000/- the Complainant paid a sum Rs.2,90,000/- only as advance amount towards the sale of the schedule below
flat, Rs.20,000/- paid as advance amount towards electric meter and Rs.5,000/- only as advance amount towards legal expenses regarding all documents that is agreement paper, sanctioned building plan and all related papers of land schedule.
The O.P.s are further stated that the aforesaid agreement for sale dated 20.11.2014 it was clearly recorded and stated that the developer will construct and make the flat tenantable within 12 months from the date of execution there of and the fact is that the construction was already been done within the stipulated period of time but as the Complainant showed reluctant attitude to purchase this flat the entire procedure of completion and registration of flat would not be possible unilaterally.
The O.P.s are further stated that the Complainant sent a letter dated 03.10.2016 to the Office of the opposite parties for the cancellation of the same and asked them to refund the said Rs.3,15,000/- only with benefit and /or compensation and accordingly after receiving the said representation the O.P.s did not refund the same but only refunded to the Complainant a sum of Rs.2,90,000/- only.
The O.P.s refunded the money Rs.2,90,000/- on 28.10.2016 issued by a cheque being no.005198 drawn on Bank of Maharashtra, Dum Dum Cantonment Branch.
On overall revaluation of the Complaint and Written Version including the evidence of the both parties and particularly cancelation agreement, it is found that the previous agreement for sale dated 22.11.2014 had been cancelled and as per said agreement of cancellation dated 28.12.2015 developer agreed to refund of Rs.2,90,000/- and that was agreed by the Complainant and as per sale cancellation agreement the present Complainant and her legal heirs shall have no further claim on the basis of said agreement and Complainant admitted that the terms & conditions and accepted the cheque amount of Rs.2,90,000/- what have been encased by the Complainant admittedly and the cheque was issued in favour of the name of Amit Kr. Das by O.P.s.
In view of the above fact of materials the Complainant is estopped to claim any further claim from the O.P.s as per provision of 115 of evidence Act and for which the present Complainant claim against the O.P.s are not legally maintainable of the eye of law for the Complainant.
As because the Complainant has failed to prove the payment of Rs.25,000/- by document, the Forum is not a position to give any relief in respect of that of Rs.25,000/-
Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.
