Before
the Hon’ble District Consumer Disputes Redressal Commission Kolkata Unit – III,
Alipore, Kolkata – 700 027, West Bengal.
CC / 474 / 2019
In
the matter of :
Shri
Tapas Kumar Biswas, and another,
__________Complainants
- Versus –
A.G.
Construction and another.
_______Opposite parties.
Brief Notes of
Argument
On behalf of
the Opposite
Party No. 1, & 2,
M/s. A.G.
Construction,
and
Shri Soumen
Chakraborty.
ARGUMENT ;
On an after 26-09-2018,
while the money was refunded through cheque on being cancellation of the agreement
for sale dated 27/11/2016, between the parties, thus there is no Agreement for
Sale in between the Parties, no privity of contract between the Complainants
and this Opposite party, therefore asking for the value of the dishonored cheque
by the complainants does not come in the ambit of the Consumer Protection Act 2019,
such a dispute is not a consumer dispute.
FACT;
A) That the
Complainants being Shri Tapash Kumar Biswas, and Smt. Keya Guha Biswas,
enterewd into an Agreement for Sale dated 27-11-2016, with this opposite party
for purchasing ALL THAT one Self contained Flat being Flat No. 2B consisting of
One Bed room, one toilet, one kitchen cum – dinning having an area of 400 Sq.
ft. super built up area more or less lying and situate on the 2nd
floor of the building together with proportionate undivided share of the Land
underneath the building measuring about 3 Cottahs 1 Chitack and 28 Sq. ft. more
or less lying and situate at Mouza – Dakshin Behala, J.L. no. 16, R.S. Dag no.
494, and 498, R.S. no. 81, under Khatian No. 37, and 45, being premises no. 68,
Talpukur Road, Police Station – Thakurpukur, Kolkata – 700 061, under Kolkata
Municipal Corporation Ward no. 126, District – South 24 Parganas, Assessee No.
411262000684, at the total consideration money as of Rs. 8,00,000/- ( Rupees
Eight Lakhs ) only.
B) That in the
terms of the said Agreement for Sale dated 27-11-2016, the Complainants herein
paid a sum of Rs. 1,25,000/- ( Rupees One Lakh and Twenty Five Thousand ) only
at the time of execution of the said agreement for sale dated 27-11-2016,
between the parties, as earnest money out of the total consideration money as
of Rs. 8,00,000/- ( Rupees Eight Lakhs ) only.
C) That the said
Agreement for Sale dated 27-11-2016, consisting the following terms, which
reproduced herein as follows :
i)
At
Page no. 8, Paragraph number 3 – That the Purchaser hereto with the execution
of this agreement shall pay to the Developer / First Party herein a sum of Rs.
1,25,000/- ( Rupees One Lakh and twenty five thousand ) only towards advance /
earnest money and / or part payment out of the total consideration of Rs.
8,00,000/- ( Rupees Eight Lac ) only the receipt of which the Vendor / First
Party both hereby admit and acknowledge as per memo hereunder written ) and the
balance of the total consideration amount shall be paid by the Purchaser to the
Developer / First Party before the registration and / or possession of the plot
in the following manner :-
i)
Paid
Rs. 1,25,000/- ( Rupees One Lac Twenty five thousand ) only as advance money
Booking money this day i.e. Execution of the Agreement.
ii)
Paid
Rs. 4,00,000/- ( Rupees Four Lac ) only shall be paid within a plinth level
time.
iii)
Paid
Rs. 1,00,000/- ( Rupees One Lac ) only shall be paid within a 1st
Roof casting.
iv)
Paid
Rs. 75,000/- ( Rupees Seventy Five Thousand ) only shall be paid within a 2nd
Roof casting.
v)
Paid
Rs. 50,000/- ( Rupees Fifty Thousand ) only, shall be paid within a Brick work
time.
vi)
Paid
Rs. 50,000/- ( Rupees Fifty Thousand ) only, shall be paid at the time of
delivery of possession and / or before the Registration.
ii)
At
page no. 11, paragraph no. 13 – In the event of any default on the part of the
owner / developer, if the said new Building and the said Flat / Unit /
Apartment are not completed within the stipulated period, the Purchaser shall
be entitled to and are hereby authorized to claim interest at the rate of 12%
per annum on the amount paid to the Vendor.
iii)
At
page no. 11, paragraph number 14 – That the Purchaser shall be liable to make
payment the balance consideration amount within the stipulated period as
mentioned above, failing which the Purchaser will be liable and responsible to
bear the interest ever the due amount 12% per annum for a period of one month
from the date of payment.
iv)
At
page no. 11, paragraph number 16 – That the transaction of sale and purchase in
between the parties hereto relating to the said property will be completed
within 15 months from the date of this agreement subject to making payment of
balance consideration amount and also delivery of possession as aforesaid.
D) The
Complainant on expiry of the substantial period of time approached to the
opposite party herein for the refund of money, and whereas the opposite party
herein refund the money taken by him as of Rs. 1,25,000/- ( Rupees One Lakh and
Twenty Five Thousand ) only to the Complainant through cheque, which dishonored
subsequently on representation. Thus in the entirety of the facts the disputes
if any is a disputes related to the refund of money by the opposite party to
the complainants.
E) The
Complainants did not pay money towards consideration value of the said
subjected flat in terms of the covenants of the said such agreement for sale
dated 27-11-2016, and consequently asked for refund of their money as they did
not able to pay further.
F) On an after 26-09-2018,
there is no Agreement for Sale in between the Parties, no privity between the
Complainants and this Opposite party and thus there is no privity of Contract
between the parties.
G) This is the
Complainants who cause the non performance of the Agreement for Sale entered by
them and thus the cancellation of said Agreement For Sale dated 27-11-2016, has
been occurred at the behest of the Complainants and therefore in such a factual
circumstances this Opposite Party has not even been into any Deficiency in
Services and Unfair Trade Practice as in the terms of the Consumer Protection
Act’ 1986.
H) The Opposite
Party is a Debtor to the Complainant and the Complainant is a Creditor to the
Opposite Party, herein.
I) The Complainant
is not entitled to get any relief in terms of their prayer to refund the money being
value of the Dishonored Cheque, the Hon’ble District Commission lost its jurisdiction
to try.
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