State Consumer Disputes Redressal Commission
Indranil Mukherjee vs Parmeswar Construction Co. on 27 January, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/2/2013 1. Indranil Mukherjee Station road ,Durgapur Bazar, PO.-Durgapur1 ,Durgapur-713201 2. Mrs. Aruna Mukherjee Station road ,Durgapur Bazar, PO.-Durgapur1 ,Durgapur-713201 ...........Complainant(s) Versus 1. Parmeswar Construction Co. A proprietorship firm of Madhu Chanda Chakraborty, 131, G.T. Road (South), Shibpur, Howrah, Pin- 2. Madhu Chanda Chakraborty, Prop. of Parmeswar Construction Co. W/o Late Uttam Chakraborty, Chakraborty, 131, G.T. Road (South), Shibpur, Howrah, Pin- ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Complainant: Mrs. Koyeli Mukhopadhyay , Advocate Koyeli Mukhopadhyay, Advocate For the Opp. Party: Dated : 27 Jan 2017 Final Order / Judgement Date of filing : 03.01.2013 Date of hearing : 18.01.2017 PER HON'BLE MRS. MRIDULA ROY, MEMBER The instant petition of complaint was initially filed by Shri Nilratan Mukherjee alleging deficiency in service on the part of the Parameswar Construction Company, a Proprietorship Firm and its Proprietor Smt. Madhuchanda Chakraborty. Subsequently, the complainant had died and was substituted by his legal heirs viz. Indranil Mukherjee ( Son ) and Mrs. Aruna Mukherjee (Wife ) vide order No. 11 dated 07.05.2015.
The case of the complainant in brief is that in order to purchase a flat in Howrah the predecessor of the instant complainants approached the then proprietor of the OP No.1, Shri Uttam Chakraborty and agreed to purchase a flat situated at 15/1/1, Jogamaya Devi Lane, 1st floor, Howrah having area of 625 sq.ft. at a consideration of Rs.3,15,000/-. The complainants further stated that the entire amount of Rs.3,15,000/- had already been paid to the then proprietor of the OP No.1 by 7 instalments on and from 04.08.2000 to 17.08.2001. Subsequently, as the complainants stating, the then proprietor of the OP No.1 reported to have been fell ill seriously and considering such health conditions of him the predecessor of the instant complainant did not exert pressure upon him for execution and registration of Deed of Conveyance. Afterwards the then proprietor of the OP No.1 had died and the entire responsibility was shifted to the instant OP No.2, wife of the deceased proprietor of the OP No.1. However, the predecessor of the complainants met the OP No.2 in September, 2012 and requested her to register the Deed of Conveyance in favour of him on receipt of balance amount but, the OP No.2 refused to do the same which caused tremendous inconvenience to the complainants and the same prompt him to file the instant petition of complaint praying for direction upon the OPs to hand over possession of the flat situated at 5/1/1/, Jogomaya Devi Lane, 1st floor, Howrah, to the complainants immediately, to register the Deed of Conveyance in respect of the said flat, to pay Rs.20,00,000/-towards compensation to the complainants for causing harassment and mental agony and to pay Rs.50,000/- towards cost of litigation.
Notices were said to the OPs but the same were returned with Postal remarks ' Left '. Subsequently, vide order No.12 dated 24.08.2015 the notice in substituted manner published in a well circulated daily newspaper.
The OPs did not turned up and, therefore, vide order No.15 dated 20.04.2016 the case was fixed for exparte proceeding against the OPs.
The complainants adduced evidence on affidavit.
In course of exparte hearing, Ld. Advocate for the complainant has submitted that the predecessor of the complainants agreed to purchase a flat from the then Proprietor of the OP No.1 who was also owner of the said property at a consideration of Rs.3,15,000/-. Ld. Advocate for the complainants has further submitted that the intending purchaser paid entire amount of consideration to the proprietor of the OP No.1 on different dates by cheque as well as cash and prayed for order of execution of Deed of Conveyance in favour of the complainants.
On perusal of the documents on record and considering the submission made by the Ld. Advocate for the complainant it appears that the complainants have claimed that their predecessor agreed to avail the housing construction service in respect of the flat in question at consideration of Rs.3,15,000/-. The complainant also claimed to have paid Rs.3,15,000/- to the predecessor of the OPs. A letter dated 18.01.2007 is found in the record. It is evident from the letter dated 18.01.2007 issued from the end of the predecessor of the OP to the predecessor of the complainants through the Ld. Advocate that the OP had stated that the then intending purchaser had paid Rs.2,65,000/- only and asked the predecessor of the complainants to get the flat in question registered in favour of him after making payment of balance consideration amount. A reply to the said letter is also found in the record. It appears from the reply dated 15.02.2007 issued from the end of the predecessor of the complainant to the then proprietor of the OP company that the complainant claimed to have paid Rs.3,15,000/- towards consideration and not Rs. 2,65,000/- as claimed by the owner of the flat. It appears from the copies of money receipts issued by the OP and from the copy of the cheque issued in favour of the OP that the predecessor of the complainant paid Rs.3,05,000/- only to the OP company so far. No document is found in the record that what amount is agreed to be paid by the intending purchaser since no agreement for sale has been executed by and between the parties. Further it appears that there are discrepancies in the claimed amount, actually paid amount, and claim to have paid amount. Unless and until the agreed consideration amount is ascertained it is not possible to determine whether the OP deviated from the promised performance. In fact, in absence of any agreement it is not possible to determine that what part the parties were supposed to play and therefore to determine whether any deviation or imperfection has been occurred therefrom.
In the instance case, though no agreement has been executed but it is admitted that the complainant paid an amount of Rs.2,65,000/- to the OP. Money receipts show that the predecessor of the complainant paid Rs. 33,05,000/- to the OP company towards consideration of the flat in dispute.
Under such state of affairs, it will be just and proper if the OPs are directed to refund the deposited amount along with interest to the complainants since no service was provided by the OPs.
In the result, the complaint succeeds in part.
Hence, ORDERED The complaint case being No.CC/2/2013 is allowed in part exparte but without any order any cost.
The OPs are directed to refund the deposited amount of Rs.3,05,000/- with interest @ 10% p.a. to be accrued on and from the date of deposition till the date of realisation thereof within one month from the date of communication of this order failing which the entire amount shall carry a further interest @ 12% p.a. for the defaulted period.
Thus the consumer complaint is disposed of.
Let copies of the order be supplied to the parties free of costs for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER