Date of filing :25.10.2017
Judgment : Dt.8.3.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sangeeta Mukherjee alleging deficiency in service on the part of the opposite parties (1) M/s D.K.Land Development & Construction Pvt. Ltd. and (2) Asit Pramanik [referred as OP(s) hereinafter].
Case of the Complainant in brief is that the Complainant being desirous to have a residential accommodation came in contact with the OPs who are, being OP No.1, a land development and construction Pvt. Ltd. Company and OP No.2 the Director of the said Company. Being agreeable to purchase a flat to be constructed by the OP in their project the Complainant made payment of a sum of Rs.5,62,000/- to the OPs. Accordingly, two Memorandums of Agreement were executed on 15.7.2013 and 21.2.2014 by and between the Complainant and the OPs in respect of a flat along with a car parking space at a consideration of Rs.18,75,000/-. The Complainant has stated that subsequently she visited the site for physical verification of the newly constructed building but found no progress of construction was materialized and, therefore, decided not to pay 3rd installment until the construction is done towards certain phase as per terms of the Memorandum. The Complainant after waiting considerable spell of time found no progress of construction was materialized and, therefore, decided to get refund of the deposited amount. The OP No.2 handed over 18 post-dated cheques towards refund of the deposited amount and neither of the cheques has been encashed by her since most of those are dishonoured by the drawer Bank on the ground of ‘insufficient fund’ and ‘Account Closed’ and rest of the cheques the Complainant could not deposit with the Bank in time though an amount of Rs.30,000/- was deposited to her Bank account by the OPs. The Complainant has stated that she has sent legal notice dt.2.5.22017 to the OPs but the same has been returned with postal remark ‘left’. The Complainant has specifically stated that she had never filed any case against the OPs under Section 138 of the N.I.Act in any Court of India. The Complainant has alleged that due to such illegal act on the part of the OPs the Complainant had to incur huge monetary loss for which he OPs are liable to compensate. Accordingly, the Complainant has prayed for direction upon OP to refund Rs.5,32,000/- with interest @18%p.a. from 13.9.2012, to pay Rs.1,00,000/- towards compensation and cost of litigation Rs.50,000/-.
The case was proceeded ex-parte vide Order No.6 dt.25.1.2018. The Complainant adduced evidence.
Decision with reasons
The Complainant has stated that she had entered into two agreements in respect of a flat and a car parking space against an agreed amount of consideration and Rs.18,75,000/- out of which she had paid Rs.5,62,000/- towards payment of part consideration. It is further stated by the Complainant that being disappointed with non-progress of construction work decided to get refund of the deposited amount to which the OPs agreed and handed over 18 post-dated-cheques which have not been encashed due to ‘insufficient fund’ of the OPs. From such averment, it is evident that both sides agreed for cancellation of the agreement and, therefore, advanced amount was agreed to be refunded. As soon as the Complainant/parties resile from the agreement, the consumer – service provide relationship ceased to be exist. Under such state of affairs, the Complainant cannot be considered a consumer under the OPs and, therefore, the instant complaint is not maintainable under the C.P.Act.
In the result the Consumer Complaint does not succeed.
Hence,
ordered
That the Consumer Complain being No.591/2017 is dismissed ex-parte but without any order as to cost.
That CC/591/2017 is dismissed ex-parte being not maintainable. The Complainant is at liberty to file fresh complaint on the same cause of action before any appropriate court of law.
