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M/S. DAS AND CO. A SOLE PROPRIETORSHIP CONCERN, REPRESENTED BY ITS SOLE PROP V/S ABHILASH NAIR & ANOTHER, decided on Monday, January 9, 2017.
[ In the West Bengal State Consumer Disputes Redressal Commission Kolkata, First Appeal No. 488 of 2014. ] 09/01/2017
Judge(s) : SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER & MRIDULA ROY MEMBER
Advocate(s) : G. Gupta Roy. None appears.
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    Samaresh Prasad Chowdhury Presiding MemberThe instant appeal Under Section 15 of the Consumer Protection Act 1986 ( hereinafter referred to as “the Act “ ) is at the instance of Opposite Party No.2 to impeach the judgement / final order dated 20.02.2014 passed by the Ld. District Consumer Disputes Redressal Forum South 24-Parganas at Alipore ( in short ” Ld.District Forum “ )in Consumer Complaint No.41/2013 whereby the Consumer Complaint lodged by the Respondent No.1 herein U/s.12 of the Act was allowed on contest against the Appellant and exparte against the Pro –Respondent with direction upon the appellant to pay Rs. 7 00 000/- to the respondent No.1/Complainant and also to pay Rs.1 00 000/- as compensation besides payment of litigation cost of Rs.5 000/-.The Respondent No.1 herein being Complainant initiated the complaint on the ground that on 28.01.2011 he entered into an agreement with the OP No.2/Developer to purchase of a flat measuring about 1100 sq. ft. on the 1st floor at premises No.17/1 Sisir Bagan Road P. S. Behala Kolkata -700 034 at a total consideration of Rs.16 50 000/-. The complainant paid a sum of R.4 00 000/- as an advance as part consideration amount. It was agreed that the developer will handover the possession within 18 months from the date of agreement of sale and the balance consideration amount would be paid phase wise as per payment schedule made by the developer on 24.04.2011. However in or around April 2012 the OP No.2 offered the complainant to return the earnest money along with interest as no substantial progress has taken place in respect of construction of building.Tne complainants alleged that the OP No.2/developer altogether refunded him Rs.11 50 000/- out of which only Rs.4 50 000/- was credited to his account and in respect of other payments the cheques were dishonoured. Hence the complainant approached the Ld. District Forum with prayer for certain reliefs viz (a) a direction upon the OPs to execute the deed of conveyance in respect of the property as mentioned in the schedule of the petition of complaint after receipt of balance consideration amount ; (b) to pay compensation of Rs.2 00 000/- and (c) litigation cost etc.The Appellant being OP No.2 by filing a written version has stated that being requested by the complainant he returned part consideration of Rs. 4 00 000/- and also paid a sum of Rs. 5 000/- as loan on his request towards his marriage. The OP No.2 has stated that the cheques and demand draft as mentioned by the complainant were made over by him to the complainant towards refund of part consideration of Rs. 4 00 000/- along with the extra amount of Rs.50 000/- towards loan advance.After assessing the materials on record including the evidence led by the parties the Ld. District Forum by the impugned judgement/final order allowed the complaint as indicated above which prompted the OP No.2/developer to come up in this Commission with the present appeal.We have heard Mr.Gouranga Gupta Roy Ld.Advocate for the appellant. Both the respondents have appeared before this Commission after receipt of Notice of the appeal but on the date of hearing none of them has appeared. Under compulsion we proceeded to dispose of the appeal in absence of the Respondents.Having heard the Ld. Advocate for the appellant and on going through the materials on record it would reveal that the pro-respondent No.2 was the owner in respect of a piece of land lying and situated at premises no. 17/1 Sisir Bagan Road P. S. Behala Kolkata – 700 034 within the local limits of Kolkata Municipal Corporation. On 11.03.2010 the pro-respondent no.2 being land owner had entered into an agreement for development with the appellant for raising a multi-storied(G+3) building thereon. Accordingly the appellant being developer obtained sanctioned from the Corporation on 03.11.2010. On 11.03.2010 the pro-respondent no.2 also executed a General Power of Attorney in favour of the appellant authorising him to negotiate and transfer by way of sale of flats.Admittedly on 28.01.2011 the respondent no.1 had entered into an agreement for sale with the appellant to purchase of a self-contained flat measuring about 1100 sq.ft. super built up area on the 1st floor at premises no. 17/1 Sisir Bagan Road P. S. Behala Kolkata – 700 034 at a total consideration of Rs. 16 50 000/-. The respondent no.1 has paid Rs.2 00 000/- and Rs.1 00 000/- on 11.03.2010 and 10.04.2010 respectively by way of two cheques and Rs. 1 00 000/- by cash on 25.01.2011. It was agreed that the developer will complete the construction within 18 months from the date of agreement after accepting the balance consideration amount.Now by a letter dated 24.04.2011 to HDFC Ltd. the developer has categorically mentioned that the complainant has paid part consideration amount of Rs. 4 00 000/- out of Rs. 16 50 000/- and the balance amount will be paid phase wise as per payment schedule as mentioned in hte said letter. According to the said document the respondent no.1 was liable to pay Rs.1 25 000/- each on the occasion of completion of slab casting of ground floor 1st floor 2nd floor and 3rd floor respectively. There is no document whatsoever to show that the developer has ever informed anything to the intending purchaser that he has completed the slab casting in respect of any floor although he promised to handover the flat within 18 months from the date of agreement for sale. Therefore it is quite apparent that the developer has failed to fulfil his part of obligation and as such was deficient in rendering services to the respondent no.1.It is also not in dispute that the developer has issued several cheques amounting to Rs.11 50 000/- to the respondent no.1 but there is no explanation as to what prompted the appellant to issue cheques amounting to Rs.11 50 000/- for refund of advance amount when the respondent no.1 has only paid Rs.4 00 000/- as part consideration amount. The truth will reveal if we have look to the contents of the agreement for sale. In the agreement there was a stipulation that if the developer delays construction and does not complete construction within specified period in the agreement compensation shallbe paid to the purchaser at the rate 18% p.a. on the advance money till handing over possession of the flat.Ld. Advocate for the appellant has submitted that the appellant has refunded Rs. 4 00 000/- and Rs. 50 000/- as interest thereon and the respondent no.1 has received the same. Therefore after receipt of the said amount the respondent no.1 cease to be a ‘Consumer’ and cannot exercise his right under the provisions of the Act and as such the Ld. District Forum has committed an error by allowing the complaint.It is well settled that once complainant has accepted cheque in full and finally settled the claim he cannot be permitted to reopen the matter by filing the consumer complaint. It remains undisputed that the appellant has refunded Rs.4 50 000/- but there is no document that the payment of said amount has finally settled the claim of the respondent no.1. We must not be oblivious to the fact that the developer was under obligation to make payment of interest @18% p.a. apart from payment of compensation. There is no document to show that by accepting Rs. 4 50 000/- the respondent no.1 has finally settled the dispute.The overwhelming evidence on record goes to show that the appellant had issued cheques amounting to Rs. 11 50 000/- to the respondent no.1 which includes interest and compensation besides the amount paid in advance. The appellant could not assign any reason why he had taken pain to issue cheques of Rs. 11 50 000/- in favour of the respondent no.1.The Ld. District Forum has rightly did not pass any order directing the appellant to execute and register the sale deed as the appellant has miserably failed to keep his commitment in handing over the flat within the time frame. The Ld. District Forum has rightly passed an order directing the appellant /OP No.2 to make payment of Rs. 7 00 000/- and compensation of Rs. 1 00 000/-. The developer has practiced a fraud upon the purchaser by issuing the cheques where there was no sufficient fund in the account of him which in turn amounts to a criminal offence within the purview of Section 138 of Negotiable Instruction Act. Perhaps due to ignorance of law without resorting appropriate method the respondent no.1 reported to O.C. Behala P. S. on 28.01.2013 alleging the dishonest misappropriation of money by the developer.After giving due consideration to the submission advance by the Ld. Advocate for the appellants and on scrutiny of the entire record we find that the Ld. District Forum has rightly passed the order impugned which does not require any interference by this Appellant Forum.Consequently the appeal is dismissed ex-parte without any order as to costs in this appeal.The judgement/final order made by the Ld. District Forum in CC/41/2013 is hereby affirmed.The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum South 24-Parganas at Alipore (now at Baruipur ) for information.