SRI BASANTA KUMAR MALLICK, MEMBER

The dispute arises out of the complaint filed by the complainant alleging deficiency of service  & unfair trade practice.

The brief facts disclosed in the complaint are to the effect that the complainant is a senior citizen and permanent resident of Ghatapur within the territorial Jurisdiction of Bhadrak District. After retirement, complainant made up his mind to have a residential house/flat of his own, he came across the advertisement made in printing media and electronics media about booking of flat to be constructed at Tisalpur about 2 K.Ms away from Bhadrak township and contacted the authorized  persons of Hi-tech Multiplex Pvt. Ltd. in their local office situated at Sahapur within Bhadrak township to know about the details of scheme and procedure of booking of a flat. The authorized persons stationed at Bhadrak to manage booking of the flats convinced the complainant & the said complainant evinced interest for booking of the flat and executed a memorandum of agreement with Hi-tech Multiplex Pvt. Ltd. Represented by it’s Executive Director Sri Tirupati Choudhury on 18^th day of August, 2011. According to terms of agreement, it is agreed upon between the parties to allot a flat having a super built up area of 1300 sq.ft. approximately on the first floor, Block A1, Flat No. 190/38 constructed over Plot No. 120(P), 126(P) in mauza- Tisalpur under Bhadrak Tahasil for a sum consideration of Rs 16,90,000/- in five installments according to the progress of construction and on demand. Although the builder (O.Ps) have not laid the foundation of the commercial project, but insisted upon the complainant to deposit the installment amount and accordingly, complainant deposited the amount of Rs 8,45,000/-  in three phases. Awaiting for a period of nearly three years, complainant tried to contact the officials of the builder and Executive Director over phone but all of his efforts ended futile and finally on 01.04.2014 visited the construction site, as was made aware by the Hi-tech personnel and found no construction was started. Finding no other way complainant being desperate, rushed to the office of O.Ps at Sahidee Nagar Bhubanwswar and expressed his displeasure over inordinate delay caused in progress of construction which contravenes the terms of agreement signed between the parties. After a thread bare discussion, O.Ps assured orally to return the deposited amount together with interests at the prevailing bank rate within a couple of months but failed to comply the commitment. Finding no other way, complainant served a notice upon the O.Ps through Advocate demanding settlement of claim either to make over the possession of flat or to refund the amount with interest within 15 days from the date of receipt of the notice. But the O.Ps did not respond to notice so served nor refunded the amount which forced the complainant to file dispute in the Forum for justice and praying a direction to the O.Ps for refund of deposit amount with interest @ 14% P.A alongwith compensation & cost.

O.Ps resisted the claim and contested the case. O.Ps, in submitting written version, have raised the issue of territorial Jurisdiction u/s 11(2) of CP Act, barred by limitation and violation of clause- 38 of agreement signed between the parties. It is also denied by the O.Ps to have given any assurance and made any commitment to deliver a flat having super built up area of 1300 sq.ft. on first floor, Block-A1, Flat No 1-A1-05 over revenue khata No- 190/38, plot No- 120(P) & 126(P) in mauza Tisalpur under Bhadrak Tahasil. It is admitted by the O.Ps that complainant in order  to purchase a flat from answering O.Ps and being enrolled as a member duly applied and on payment of required membership fee of Rs 500/-. O.Ps also denied to have received Rs 8,45,000/- paid by complainant on several dates. It is also stated that complainant has defaulted in payment of initial installment amount of Rs 4,22,500/- within agreed period and there by violated the terms of agreement. O.Ps have defended themselves in stating that they will not incur any liability for delay, in completion of project beyond the agreed date line, caused due to act of God and for unwanted external factors and complainant cannot claim any compensation and interest on his deposit which is specifically mentioned in the agreement. Finally O.Ps have submitted that as the dispute is barred by limitation, the present Forum does not have territorial jurisdiction, as the complainant has violated the terms of agreement and has not come to the Forum with clean hands and  all the allegations made in the complaint are devoid of merit and hence liable to be dismissed.

FINDINGS/OBSERVATION

Heard the parties in the dispute and perused materials on record. Almost all the allegations in the complaint have been challenged by the opposite parties demanding the complainant to prove strictly.

1. O.Ps have raised the question of territorial jurisdiction as none of the opposite parties do have business interest within the jurisdiction of DCDRF, Bhadrak nor have got any branch office at Bhadrak and any of the opposite parties are not residing within Bhadrak jurisdiction and the cause of action, either fully or partly, arose within Bhadrak District. On the other hand complainant has submitted that there was an office of the Hi-tech multiplex at Sahapur in Bhadrak township and some authorized officials were all along present there for smooth management of the project affairs starting from clarifying the doubts of the customers till end of signing of memorandum of agreement including receipt of payment from the customers. Further added that the site of the proposed project is situated under Bhadrak Tahasil within the territorial jurisdiction of DCDRF, Bhadrak and the focused on one point of whole allegation is inordinate delay in handing over the flat to complainant. Heard both the parties and perused materials on record. The memorandum of agreement, signed by Director of Hi-tech multiplexes (Pvt.) Ltd. (OP No. 2) and the complainant, reveals that the proposed project was to be erected/constructed over plot No- 120(P) & 126(P) in khata No- 190/38, Muza-Tisalpur under Bhadrak Tahasil which comes under territorial jurisdiction of DCDRF, Bhadrak and failure in completion of the project within the specified/stipulated time gives rise to cause of action at Bhadrak. In the above circumstances it is held that the present dispute can be adjudicated in this Forum.

2. As regards barred by limitation as raised by O.Ps that the present dispute has been filed after 2 years of the date of cause of action arose. On the contrary complainant submitted that on 01.04.2014 when he visited the project cite and found no construction was taken up by the OP which was shocking for him. Being hopeless and desperate complainant contacted the O.Ps where he was assured to get back his invested amount together with interest at the prevailing bank rate within a shorter period of time and on failure to refund the invested amount with interest, complainant served a notice upon the O.Ps on 21.07.2014 through his advocate demanding refund within a period of 15 days. Hence the cause of action arose on 01.04.2014 when complainant came to know about the project has not been started and on 06.08.2014 when the O.Ps failed to make payment of the genuine dues of complainant after receipt of notice. On perusal of documents on record it is observed that the complainant has verified the spot during April, 2014 and served notice in the 3^rd week of July demanding payment of dues and as such the cause of action arose on different dates, last one of which is 06.08.2014 and the date of filing of this case is 02.12.2014. Hence the objection raised by O.Ps on the ground of limitation is not sustainable.

3. That the O.Ps have further raised the question of Jurisdiction as they have not any business interest within the Jurisdiction of DCDRF, Bhadrak nor they have any branch office in Bhadrak District. Further it is also raised by the O.Ps that the complainant has violated clause 38 of the terms of agreement signed/executed between the parties which speaks of the appropriated Court where this case can be adjudicated. On perusal of materials on record it is observed that the complainant and OP No. 2, being the Executive Director, have signed an agreement dt. 18.08.2011 wherein it is found at paragraph 38, all the disputes and differences between the parties pertaining to any matter connected with apartment shall be referred to an arbitrator to be appointed by the builder and shall be adjudicated in consonance with the Indian Arbitration Act. Further it is also relevant & important to mention here that according to paragraph 39 of the agreement it is clearly mentioned that for the purpose of any legal dispute arising out of this agreement, Bhadrak Court shall have exclusive Jurisdiction which provides privilege and opportunity to the complainant to file the dispute in DCDRF, Bhadrak. Apart from this, according to the terms and conditions of the agreement, O.Ps have agreed to sale a flat to be constructed at Bhadrak (Tisalpur revenue mauza) and therefore the cause of action partly arose within Bhadrak Jurisdiction. In view of the facts discussed in this paragraph it is held that the CD Case of the complainant is maintainable in this Forum and the objection raised by O.Ps is rejected.

4. Complainant has pleaded that according to the terms and conditions of agreement, he has to pay total amount of Rs 16,90,000/- towards cost of apartment in phase manner such as (1) Rs 4,22,500/- at the time of signing agreement, (2) Rs 4,22,500/- after foundation is laid, (3) Rs 4,22,000/- after roof casting, (4) Rs 4,53,500/- after brick and wood work and (5) Rs 1,69,000/- on finishing and membership fee of Rs 500/-. Accordingly the complainant has paid Rs 8,45,500/- including membership fee, although the O.Ps have not laid foundation. It was also agreed by O.Ps (First Party) to make over the possession of the flat within 36 months from the date of signing agreement. O.Ps also did not object the pleadings of the complainant rather denied to have signed such agreement. When the complainant visited the proposed construction site and noticed the works as per agreement has not been started, he being shocked contacted O.Ps in their office in Bhubaneswar but failed to yield any result. The material evidence on record and the pleadings of O.Ps provide sufficient reason to believe that the O.Ps have grossly failed to provide due service and found negligent to act upon according to their commitment as incorporated in the agreement. The payment of a sum of Rs 8,45,000/- through a/c payee cheques by the complainant including cash payment of Rs 10000/- is well proved from the money receipts issued by the O.Ps to the complainant.

From the facts narrated and analyzed as above, it is concluded in a consensus manner among the members of the Forum that the claim raised by the complainant is just and proper and well proved from the evidences on record and the O.Ps are liable to pay the amount to the complainant with interest @ 11% P.A with quarterly rests. Hence it is ordered;        

ORDER

               The complainant be and the same is allowed against the O.Ps. O.Ps are directed to pay Rs 8,45,000/- with interest @ 11% P.A with quarterly rests from the date of deposit within 30 days from the date of receipt of this order failing which interest @ 14% P.A shall be charged on the decreetal amount from the date of order till the date of payment. In addition to this, O.Ps are also directed pay Rs 10,000/- as compensation for mental agony and harassment and Rs 5,000/- as cost of litigation.

This order is pronounced in the open Forum on the 27^th day of March, 2017 under my hand and seal of the Forum.