State Consumer Disputes Redressal Commission
Joyeeta Mondal vs Maa Durga Construction & Others on 10 March, 2026
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
WEST BENGAL
CONSUMER COMPLAINT NO. SC/19/CC/667/2019
Joyeeta Mondal
PRESENT ADDRESS - W/o Biswajit Mondal, Kanjial Para Rathtala, P.O. & P.S. - Rajarhat, Dist.
North 24 Pgs., Kolkata - 700 135.,WEST BENGAL.
.......Complainant(s)
Versus
Maa Durga Construction & Others
PRESENT ADDRESS - Vill. - Reckjoani, P.O. & P.S. - Rajarhat, Dist. North 24 Pgs., Kolkata - 700
135.,WEST BENGAL.
Pradip Narayan Bose
PRESENT ADDRESS - S/o Lt. Surendra Narayan Bose, Vill. - Bhatenda, P.O. & P.S. - Rajarhat,
Dist. North 24 Pgs., Kolkata - 700 135.,WEST BENGAL.
Soma Bairagya
PRESENT ADDRESS - W/o Kaushik Bairagya, Vill. - Reckjoani, P.O. & P.S. - Rajarhat, Dist.
North 24 Pgs., Kolkata - 700 135.,WEST BENGAL.
Mukul Sen Gupta
PRESENT ADDRESS - S/o Lt. Manotosh Sen Gupta, Kanjial Para, P.O. & P.S. - Rajarhat, Dist.
North 24 Pgs., Kolkata - 700 135.,WEST BENGAL.
Smt. Srabani Dasgupta
PRESENT ADDRESS - W/o Lt. Gopal Dasgupta, Kanjial Para, P.O. & P.S. - Rajarhat, Dist. North
24 Pgs., Kolkata - 700 135.,WEST BENGAL.
.......Opposite Party(s)
BEFORE:
HON'BLE MR. AJEYA MATILAL , JUDICIAL MEMBER
HON'BLE MRS. SAMIKSHA BHATTACHARYA , MEMBER
FOR THE COMPLAINANT:
Joyeeta Mondal, Mr. Dipankar Naskar, Mr. T.Chatterjee (Advocate)
FOR THE OPPOSITE PARTY:
Maa Durga Construction & Others, Mr. Shamim Ahmed, Ms. Asha Ghosh, Mrs. Paramita
Adhikary (Advocate)
DATED: 10/03/2026
ORDER
Samiksha Bhattacharya, Member The instant complaint has been filed under Section 17(1)(a)(i) of C.P Act of 1986 (wrongly written as under Section 12 read with Section 13) alleging deficiency in service against the OPs.
The case of the complainant, in brief, is that the OP No. 1 is a partnership firm and OP No.2 is the partner of OP NO.1 and OP No. 3 is the another partner in the setup of OP no.1. OP Nos. 4 and 5 are the land owners of the premises in question as per Joint Venture Agreement entered by and between the OP Nos. 1, 2 & 3 and OP Nos. 4 & 5.The Complainant was in search of residencial flats for their joint family and accordingly OP Nos. 2 and 3 approached the Complainant and her husband for taking flats in their project namely 'CHAR ADHAY" upon the land comprising about 5 cottah 14 chittack land area in New Town area as well as in Rajarhat Bishnupur 1 no. GRAM PANCHAYET, 1, Mouja - Rekjuani, J.L No. - 13, HAL TOUJI NO. 10 in Government of west Bengal through District Collectorate of North 24 Parganas in L.R Dag No. 218.
The complainant entered in to agreements for sale on 20.11.2016 and 13.02.17 with the OPs. The Complainant had earlier been authorized by 2 other persons and / or near relatives for entering in to two other agreements in issue with these OPs. Out of these three flats the Complainant is entitled to get one flat i.e ' 1A' On the first floor of the subject premises and other two relatives were subjected for two other flats. The consideration of the flat number being 1A has been settled at Rs. 20,05,000/-. The consideration of flat No. 2B was settled at Rs. 20,05,000/- and the consideration of flat being number 3C was settled at Rs. 19,20,000/-. Out of total consideration of Rs.59,30,000/- the Complainant paid Rs. 16,00,000/- to the OPs as an advance consideration and rest amount of Rs. 43,30,000/- was due as rest consideration.
As per agreement for sale it was agreed upon that the flats would be delivered within two (2) years from the date of execution of each agreement upon receipt of rest consideration money. However, the time has expired in respect of two agreements in November 2018 and in respect of other agreement in February 2019. The Complainant was / is keen to render rest consideration amount and repeatedly approached the OP Nos. 2 and 3 verbally and also in writing for receiving the rest consideration by the OP Nos. 1,2 &3 and to handover the necessary possession and to execute the deed conveyance. But, no positive reply has come to the complainant. Upon expiry of agreed scheduled time the complainant sent two letters in April 2018 and in January 2019 but no reply was available from the side of the Ops. Complainant has waited for enough reasonable time and she became helpless victim in the hands of the OPs. The cause of action arose on 20.11.2016 and 13.02.2017 and it continues recurrently day by day. Being a layman the complainant has filed the instant case after waiting a long period. Hence, the Complainant has filed the instant application praying for direction upon OPs for accepting rest consideration money upon immediate delivery of possession of the subject flats in favor of the Complainant along with compensation of Rs. 6,00,000/- and litigation cost of Rs.50,000/- or any other relief to which the Complainant is entitled to get under law, equity and natural justice.
Upon receipt of notice OP Nos. 1, 2 and 3 appeared and contested the case by filing written version. In spite of receipt of notice the OPs No. 4 and 5 did not appeared before this Commission nor filed their written version. Hence, the case has been proceeded ex parte against the OP Nos. 4 and 5.
In their written version OP Nos. 1, 2&3 denied all material allegations inter alia stated that this Commission has neither territorial nor pecuniary jurisdiction to try the instant case. The Complainant and her husband never approached these OPs for taking the alleged flats in the project in question. They invested the lump sum amount in the project and demanded a lump sum amount towards proceed out of sale deed in respect of the flats in question. Since these OPs had actual need of huge amount for the said project the OPs agreed with the proposal made by the complainant and her husband. Accordingly the Complainant agreed to invest the sum of Rs.60,00,000/- and the Complainant invested Rs. 16,00,000/- and the sum was duly received and acknowledged by these OPs. The Complainant promised to invest rest amount of Rs. 44,00,000/- within a very short spell of time and to secure refund of the said amount with profit, the Complainant and her husband requested the OPs to execute any instrument so that they could avoid future dispute , differences and litigation and accordingly these OPs entered into the agreement in the guise of agreement for sale in respect of three flats showing alleged consideration money of Rs. 59,30,000/-. The alleged agreements for sale are nothing but security against the repayment of the amount as invested by the Complainant and her husband with a view to accept the same for commercial purpose. The transaction was purely commercial transaction and therefore neither the Complainant nor her husband is the consumer under these OPs. The actual price of the flat is not the amount as shown in the alleged agreement for sale but the same was written to make agreement to secure the repayment of the amount as invested in this project by the Complainant. The OPs are not at all liable to provide any flat within the alleged stipulated period since the amount has been paid by the Complainant was nothing but investment and the agreement was security agreement against the repayment of money. The OP Nos. 1, 2 & 3 also stated in the written version that though it is not admitted but assumed that if there was really an agreement for sale, then what prevented the Complainant from paying a bulk amount of Rs. 43,30,000/- as rest consideration amount. The Complainant is defaulter and therefore she is not entitled to get the relief as prayed for. The Complainant never tendered such amount of Rs.43,30,000/- to the OPs since the Complainant has not hired any service from these OPs. Therefore these OPs are not at all liable to provide service to the Complainant since no consideration was received by the OPs. Hence they prayed for dismissal of the Complainant with cost.
In course of the argument Ld. Counsel for the Complainant has submitted that it is evident from the agreement for sale that the Complainant has paid Rs.16,00,000/- for entering into three agreements for sale till date. But the Complainant has not received the flats and being frustrated and harassed in the hands of the OPs the Complainant has filed the instant Complaint. The letters were sent by the Complainant in April 2018 and in January 2019 to give reminder to deliver the flats in question. However, the OPs are negligent and deficient in rendering their service. At this juncture also the Complainant is keen to pay rest consideration amount of Rs.43,30,000/- to the OPs upon the solemn direction for obtaining necessary possession of the flats which is absolute need of these bonafide Consumer/ Complainant. Hence, he has prayed for allowing the petition of complaint along with adequate compensation. The Ld. Counsel for the Complainant has alternatively prayed for direction upon OPs to refund the paid amount by the Complainant along with adequate interest.
Ld. Counsel for OP Nos. 1,2 and 3 has drawn our attention by showing Para 4 of the petition of complaint where the complainant has stated that she was authorized by two other persons and / or near relatives for entering into two other agreements in issue with these opposite parties in representative capacity on behalf of them. Therefore, the Complainant ought to have sought the permission from this Commission by filing the petition under Section 12(1)(c) of C.P Act of 1986. Moreover, there is no authorization letter given by other two persons to the Complainant. Therefore, those flats were booked for commercial purpose. Neither the names of two other persons nor their addresses have been mentioned anywhere in the petition of complaint. Then he drew our attention by showing Para No. 11 of the petition on complaint where the complainant has stated that along with her husband she contacted with the OPs for handing over the possession of the said flats and to register necessary deed / indenture upon receipt of rest consideration money but the Complainant has failed to show single scrap of paper that she contacted with the OPs. There is no evidence that the Complainant was ready to pay balance amount of Rs. 43,30,000/-. He has cited a judgment passed by Hon'ble Apex Court in H.U.D.A and others Vs Kewal Krishan Goel where the Hon'ble Apex Court has observed that whether the intending purchaser is not in a position to pay up balance amount, makes a request for refund of money deposited - Authority would be justified in forfeiting the earnest money along with application form. " In the said judgment Hon'ble Apex Court held that "the earnest money is a part of the purchase price when the transaction gets through and the same is forfeited when the transaction fells through by raising of default or failure on the part of the Vendee." He has cited the judgment passed by the Hon'ble National Commission reported in 2015 (2) CPJ 30. The Ld. Counsel for the OPs 1,2 & 3 also relied upon the judgment reported in 2015 (1) CPR 771 (NC) passed in Sandeep Narayan Roy Chowdhury vs. M/s Seena construction and others where the Hon'ble N.C.D.R.C has held that " it must be borne in mind that the petitioner waddled out of the commitments made by him. He did not honor the commitments, he did not make the payment on nail. The petitioner is a defaulter and deserves no sympathy from the commission."
Ld. Counsel for the OP Nos. 1, 2&3 has further submitted that the Complainant was liable to make payment of the entire consideration for flat Nos. 1A and 2B within 19.11.2028 as per agreements both dated 20.11.2016 and the Complainant was further liable to make payment towards entire consideration for flat C within 12.12.2019 as per agreement dated 13.02.2017. On the expiry of stipulated period of two years the agreement will be treated as canceled and not entertainable since the time is the essence of contract. It is evident from the petition of Complaint that Complainant has not paid the rest amount of Rs. 43,30,000/- within the stipulated period of two years. LD. Counsel for the OP Nos. 1, 2 & 3 also cited the following judgments:
(i) 2008 (8) SCC 92 (State Bank of India & others Vs S.N Goyal)
(ii) 2015 (1) CPJ 125 (Raj Kumar Gupta Vs Sushma Construction & others)
(iii) 2012 (1) ICC (Cal) 517 (BanganiLeafin Private Limited Vs Sovana Sinha Roy & others) Further the Ld. Counsel has drawn our attention by showing the last part of the agreement that there is no signature of the Complainant. Neither Complainant nor the draftsman and the witness signed on the agreement for sale. Therefore, it is not a concluded contract.
Ld. Counsel for the contesting OPs also stated that there is no proof that the Complainant has paid Rs. 16,00,000/-. No money receipt or any statement of accounts has been furnished by the Complainant. Hence, he has prayed for dismissal of the complaint.
Upon hearing the parties and on perusal of the record it is admitted fact that the Complainant entered into three agreements for sale. As per averments made in the complaint the Complainant has entered into three agreements, one flat for her own and other 2 flats were booked for the purpose of her near relatives. It is true that Complainant has not disclosed the names or addresses of other two relatives for whom she entered into other two agreements. But it is evident from the Para 4 of the petition of complaint that the Complainant was entitled to get one flat only being No. 1A on the first floor of the subject premises and the other flats would be delivered to her near relatives. Now the question is when the Complainant enters into three agreements then the prayer of the complainant can be entertained by the Consumer Commission or not. Astonishingly, in all agreements for sale in Page No. 3 it has been categorically mentioned that from the date of agreement within two years when the Complainant would pay the balance consideration amount the flat would be registered in the name of the Complainant or in the name of the person chosen by the Complainant. Therefore, all three agreements were not executed for registering the property in question upon payment of full consideration in the name of the Complainant alone. When the OPs entered into such agreements where the flats would be registered in the name of the Complainant or her chosen person then it cannot be said that all three flats were booked for the Complainant herself. There is no denial that OP Nos. 1, 2 and 3 have received Rs.16,00,000/- for the three agreements for sale in question. Now the question is whether these agreements for sale are acceptable in the eye of law as there was no signature of the Complainant / Purchaser. It is written in the agreement that the name of the purchaser Mrs. Jayeeta Mondal W/o Biswajit Mondal. The OP Nos. 1, 2 and 3 have not denied that the present Complainant is not the same person with whom they entered into the agreements for sale. The Agreements for sale were annexed with the petition of Complaint which means the agreements for sale are in the possession of the Complainat.it was very intelligently drafted by the OP Nos.1,2 and 3 in such a way that no space was specified to sign on behalf of the purchaser. Only the OP Nos. 1, 2 & 3 signed those three agreements for sale, even there are no signatures on behalf of the OP No. 4 and OP No.5 / land owners of the property in question also. The signatures of OP Nos. 2&3 are not denied by OP Nos. 2&3 themselves. Therefore, it is proved that the agreements for sale were drafted in such a way that OPs No. 1, 2 & 3 could receive the money towards advance payment and thereafter they would take this plea that the agreements for sale are defective.
The further arguments on behalf of the contesting OPs that the Complainant fails to provide any bank statement or account statements towards payment of advance amount, is not entertainable in the eye of law. There are signatures of the OP Nos. 2 and 3 on behalf of OP no. 1/Maa Durga Construction. The OP Nos. 1, 2 and 3 have not denied that they have not received Rs. 16,00,000/-. The argument on behalf of the OP Nos. 1, 2 and 3 that the Complainant did not want to make the balance consideration but on the other hand we have also not found a single scrap of paper wherefrom it could be revealed that OP Nos. 1, 2 and 3 had demanded the balance amount within the stipulated period of time i.e. two years. It is admitted position that OP Nos. 1, 2 and 3 have received the amount of Rs. 16,00,000/- for three different agreements, one for the Complainant herself and two for her chosen persons. The contesting OPs have failed to prove the fact that the Complainant has entered into the agreements for sale for investment purpose. It is surprising that OP Nos. 1, 2 and 3 already sold those three flats in question without sending any demand notice to the Complainant for which they entered into the agreement for sale with the present Complainant. At the time of argument this Commission has asked the Ld. Counsel for OPs No. 1, 2 and 3 whether the first prayer of the Complainant towards direction upon OPs to deliver the flats to the Complainant upon receiving the balance consideration is feasible or not. The reply of the OP Nos. 1, 2&3 was in negative. As per agreement the OP Nos. 1, 2& 3 ought to have offered the flats to the Complainant within 20.11.2018 for two flats and within 13.02.2019 for the another flat upon demand of balance consideration. Without informing the Complainant the OPs Nos. 1, 2 and 3 sold the properties to 3rd parties when the agreements for sale in respect of those three flats were in force. Nowhere it has been written in the agreement for sale that after stipulated period of time those agreements would be cancelled or void. Though in the agreements for sale it was written that one flat was booked for the Complainant and other two flats were booked for other two persons the OP Nos. 1, 2 and 3 have entered into the agreement for sale with the complainant only. If the Complainant entered into those agreement for sale for investment purpose she would not wait for such a long period and would not pray before this Commission for delivery of the flats in question. The OP Nos. 1, 2 and 3 have drafted the agreement for sale so intelligently that they can take the unreasonable pleas on the basis of those agreements. In the consumer matter the complaint should not be dismissed on mere technical ground or procedural irregularities. Court must prioritize substantive justice over technicalities to avoid frustrating the purpose of legal remedies. Disputes should be resolved based on their merits rather than technical defaults. Dismissing cases on minor technicalities increases litigation burden and defeats the purpose of specialized forums. In this connection we can cite the judgment passed by Hon'ble Apex Court in Vibha Bakshi Gokhale vs. Gruhashilp Constructions where the Hon'ble court held that technicalities should not prevent substantive justice as the Act's purpose is to protect consumers, not to dismiss cases due to minor procedural shortcomings. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute.
In the instant case the Complainant paid the amount for purchasing the flats, one flat for her own use and other two flats for her authorized persons and paid the advance amount to the OP Nos. 1, 2 and 3. The Complainant did not pay any amount to OP Nos. 4 and 5. It is settled Principle of Law that a home buyer cannot wait for indefinite period. In the Instant Case, the OP Nos. 1, 2 and 3 already sold the flats to the 3rd party. In such situation the Complainant is entitled to get refund with compensation from the OP Nos. 1, 2 and 3 only.
As per above discussion we find that all the acts done by the OP Nos. 1, 2 and 3 are nothing but unfair trade practice and deficiency in service. Therefore, we are of considered view that the Complainant is entitled to get refund of Rs. 16,00,000/- along with interest for the mental agony and harassment suffered by her in the form of compensation.
As a result the Complaint succeeds.
Hence, it is ORDERED That the complaint case and the same is allowed on contest against OP Nos. 1,2 and 3with cost and dismissed against OP Nos. 4 and 5 ex parte.
The OP Nos. 1, 2 & 3 are hereby directed to refund Rs. 16,00,000/- (Rupees Sixteen Lakh) only to the Complainant along with interest @ 5% per annum form the date of each payment till the date of realization within 45 days from the date of passing this order in the form of compensation in default, the amount shall carry interest @ 6% p.a. instead of 5% p.a. The OPs No. 1, 2 and 3 are also directed to pay Rs. 15,000/- (Rupees Fifteen Thousand) only as litigation cost to the Complainant within the aforesaid stipulated period.
If the OPs fail to comply with the above Order within the stipulated period the Complainant shall be at liberty to put the decree into execution.
Thus the complaint case is disposed of .
Let the copy of the order be supplied to the parties, free of cost, as per Regulations.
..................
AJEYA MATILAL JUDICIAL MEMBER ..................
SAMIKSHA BHATTACHARYA MEMBER