Ld. Advocate(s)
For Complainant: Jyotrimay Chakraborty/Arka Deb Sarkar
For OP/OPs :None
Date of filing of the case :29.05.2019
Date of Disposal of the case : 29.12.2022
Final Order / Judgment dtd.29.12.2022
Complainants above name filed this complaint against the aforesaid OPs U/S 12 of the Consumer Protection Act 1986 alleging deficiency in service. They prayed for direction upon the OP for payment of Rs.6,00,000.00 (Rupees Six lakhs) , compensation amounting to Rs.6,00,000.00 (Rupees Six lakhs) and cost of the suit amounting to Rs.30,000.00 (Rupees Thirty thousands).
They alleged in the petition of complaint that husband of complainant No.1 and father of complainant No.2 namely Ram Krishna Kar were entered into an agreement with the OP No.1 and as per the said agreement OP No.1 was agreed to sale one flat described in the schedule B which is situated in schedule No. A. Said agreement was made on 21.12.2015. Thereafter said Ram Krishna Kar died on 19.01.2017 living behind the complainants as his legal heirs. The agreement dated 21.12.2015 was executed by OP No.1 and predecessor of complainants namely Ram Krishna Kar. In the said agreement aforesaid complainant were the witnessed. Said document was notarised on 25.01.2016 before the Notary Public Mr. Swapan Nag at Kalyani Court. At the time of said agreement Ram Krishna Kar paid Rs.6,00,000.00 (Rupees Six lakhs) out of Rs. 11,00,000.00 (Rupees Eleven lakhs) in favour of OP No.1.
After the expire of Ram Krishna Kar complainant came before OP No.1 but he did not show the land to the complainants where construction was going on. Complainants contacted with the OP No.1regarding delivery of flat but OP No.1 did not give any answer to them. Thereafter OP No.1 issued two cheques in favour of complainants vide cheque no.000040 dated 28.05.2018 amounting to Rs.2,00,000.00 (Rupees Two lakhs) and cheque no.000041 dated 25.06.2018 amounting to Rs.2,00,000.00 (Rupees Two lakhs). Complainants deposited those two cheques in their bank account but those two cheques were dishonoured due to “fund insufficient”. Thereafter complainants sent a legal notice to the OP No.1 through his Ld. Adv. Jyotrimay Chakraborty but OP No.1 did not pay any heed.
OP No. 2 & 3 were the eye witnessed when aforesaid payment was made in favour of the OP No.1. OP No.2 & 3 assured that they would pay the aforesaid amount of Rs.6,00,000.00 (Rupees Six lakhs) if OP No.1 is not paid the said amount in favour of the complainants.
On perusal of order dated 02.12.2019 we find that notices of this case have served upon OP No.2 & 3. Notice of this case also served OP No.1. But they did not turn up. Case is running ex-parte against them as per said order.
Complainant filed affidavit in chief and also filed certain documents through firisti.
Documents
- Original Death Certificate of Ramkrishna Kar dtd.28.03.2017..........(One sheet)
- Original copy of Agreement............(Fourteen sheets)
- Original Money Receipt order stamp paper…….(One sheet)
- Original copy of cheque of HDFC Bank vide Cheque No.000040....(One sheet)
- Original copy of cheque of HDFC Bank vide Cheque No.000041....(One sheet)
- Original copy of Bank endorsement……….(Two sheets)
- Original copy of Legal Notice of Sri Jyotirmay Chakraborty, Advocate....(Three sheets)
BRIEF NOTES OF ARGUMENT
Complainants filed BNA and also made submission before this Commission. They argued before this Commission that predecessor of complainants paid Rs.6,00,000.00 (Rupees Six lakhs) in favour of OP No.1 at the time of execution of agreement. As per the agreement OP No.1 was agreed to sale one flat mentioned in B schedule in his favour on consideration of Rs.11,00,000.00 (Rupees Eleven lakhs) and out of the said amount complainants’ predecessor paid the said amount. But after the death of predecessor of the complainants, complainants asked the OP No.1 to show the land where construction was going on but OP No.1 did not show the same rather he refunded Rs.4,00,000.00 (Rupees Four lakhs) in their favour by two cheques which were subsequently bounced. Complainants sent legal notice to the OP No.1 but he did not pay any heed.
Decision with reasons
It is the allegation of the complainants that predecessor of complainants paid Rs.6,00,000.00(Rupees Six lakhs) in favour of OP No.1 at the time of execution of agreement. As per the agreement OP No.1 was agreed to sale one flat mentioned in B schedule in favour of Ram Krishna Kar on consideration of Rs.11,00,000.00 (Rupees Eleven lakhs) and out of the said amount complainants’ predecessor paid Rs.6,00,000.00 (Rupees Six lakhs). But after the death of predecessor of the complainants, complainants asked the OP No.1 to show the land where construction was going on but OP No.1 did not show the same rather he refunded Rs.4,00,000.00 (Rupees Four lakhs) in their favour by two cheques which were subsequently bounced. Complainants sent legal notice to the OP NO.1 but he did not pay any heed.
On perusal of original agreement dated 21.12.2015 we find that OP No.1 was agreed to sale one flat measuring 1076 sqft. With the cost of Rs.11,00,000.00 (Rupees Eleven lakhs) and Mr. Ram Krishna Kar paid Rs.6,00,000.00 (Rupees Six lakhs) in favour of OP No.1 . On perusal of money receipt issued by OP No.1 we find that OP No.1 after receipt of aforesaid Rs.6,00,000.00 (Rupees Six lakhs) issued the said money receipt. As per the said agreement OP No.1 was agreed to handed over the possession of the flat on or before 01.01.2019 but he did not hand over the same during the lifetime of Ram Krishna Kar or his legal heirs.
On perusal of original death certificate we find that said Ram Krishna Kar was died on 19.01.2017.
On perusal of two original cheques dated 28.05.2018 and 25.06.2018 we find that those two cheques were issued in favour of the complainant No.1 Jharna Kar amounting to Rs.2,00,000.00 (Rupees Two lakhs) each.
On perusal of return memo dated 24.07.2018 and 24.07.2018 we find that those two cheques were bounced due to “fund insufficient”,
On perusal of original advocate’s letter dated 12.02.2019 we find that same was issued to OP NO.1 directing him to refund Rs.6,00,000.00 (Rupees Six lakhs).
On perusal of original advocate’s letter dated 26.02.2019 we find that same were issued to OP NO.2 & 3 directing them to refund Rs.6,00,000.00 (Rupees Six lakhs) in favour of the complainant No.1.
Having considered the facts and circumstances of this case, evidence on records and documents on record we find that complainants have able to established that their predecessor had paid Rs.6,00,000.00 (Rupees Six lakhs)in favour of OP NO.1 as an advance money relating to purchase of a flat valued at Rs.11,00,000.00 (Rupees Eleven lakhs). It has also been established that OP No.1 did not hand over the said flat in favour of the complainants. Even he did not refund the aforesaid advance amounting to Rs.6,00,000.00 (Rupees Six lakhs) as claimed by the complainant No.1. On the other hand OP No.1 gave two cheques amounting to Rs.2,00,000.00 (Rupees Two lakhs) each which were subsequently bounced.
Due to the aforesaid act of OP No. 1 complainant could not get the aforesaid advance amount of Rs.6,00,000.00 (Rupees Six lakhs) as a result complainants sustained mental pain and agony and accordingly complainants are entitle to adequate amount from the OP No.1 as compensation.
So necessary direction should be given to OP No.1 for refund of aforesaid amount of Rs.6,00,000.00 (Rupees Six lakhs) with interest @ 12% per annum as per condition of agreement, compensation and cost of the case.
Involvement of OP No.2 and 3 not yet established so, present case should be dismissed against them.
In the result present case succeeds. Hence,
It is
Ordered
that the present case be and the same is allowed ex-parte against OP No. 1 and dismissed ex-parte against OP No.2 and 3 with cost of Rs.3,000.00(Rupees three thousands) to be paid by OP No.1 in favour of the complainant.
OP No.1 is directed to refund Rs.6,00,000.00 (Rupees Six lakhs) to the complainants in equal share with interest @ 12% per annum from 25.12.2015 till the date of actual payment within one month from this date failing which complainants shall have liberty to put this order into execution.
OP No.1 is further directed to pay Rs.50,000.00(Rupees Fifty thousands) to the complainants in equal share as compensation for their physical harassment and for their mental pain and agony within one month from this order failing which complainants shall have liberty to put this order into execution.
Let a copy of this order be supplied to the complainant as free of cost.
Let a copy of this order be sent to OP No. 1 for compliance.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur
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MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
