JUDGEMENT

          Complainant by filing this complaint has submitted that ops are companies incorporated under the Companies Act, 1956 carrying on the business of various Real Estate Ventures, including developing housing complexes, flats, buildings etc.  Since the complainants were in search of a residential flat which will be constructed and handed over within a few years with all modern facilities and amenities as required by them, became interested to apply for booking of a flat from op no.1 and after observing the gracious etc. ultimately complainant intended to purchase one application form for allotment for one flat from the project name “A Lavanya” and at the time of booking of the flat by handing over the flat, complainant paid Rs.2,33,600/- vide a cheque No.546211 dated 30.04.2012.  Thereafter as per ops advised the complainant to pay an amount of Rs.6,015/- for handing over photo copies of relevant documents pertaining to the said project, which was accordingly paid by the complainants vide cheque No.546212 dated 30.04.2012 and booking money was duly acknowledged by the op no.1 vide their receipt dated 05.05.2012 which was duly forwarded to the complainants under cover of a letter of intimation dated 07.05.2012 issued by the op no.1.

Subsequently complainant asked for valid documents sanctioned plan etc from the op including other documents when op dragged the matter stating that the matter is under progress.  But ultimately complainant came to learn that the entire matter related to the construction is incomplete, Zilla Parishad did not approve the sanction the plan but construction was going on and at the same time other matters were incomplete, conversion was not made and being dissatisfied about the entire matter, complainant ultimately asked the op for cancellation of the said application and also for return of the said amount.  But op did not pay any heed to that and created pressure upon the complainant for paying the further amount when complainant sent demand notice to the op.  but op after receipt of that did not act and the said notice dated 02.06.2012.

Subsequently the complainant moved before the Joint Secretary, CA & FBP Department, Government of West Bengal where he filed the complaint and matter was decided by the Dy. Asstt. Director of CA & FBP Department who asked the op to pay Rs.2,37,615/- after deducting of Rs.2,000/- as processing fees.  But even after order of the Dy. Asstt. Director, CA & FBP Department, op did not act for which for proper relief complainant files this complaint.

On the other hand op by filing this written version submitted that the entire allegation is false, fabricated and made out a vexatious and disrupted the affairs of the op without any basis and further submitted that complainant completed all the matter related to the total of the property and also as per permission of the Panchayat he has started the construction but it is the duty of the Panchayat Authority to produce final sanctioned certificate from the Zilla Parishad and that is under process.  But all other matter has been completed and construction has been under progress and many persons took loans after paying some amount for purchasing the flats.  But complainant was aware of the fact that plan had already been sent to the concern Zilla Parishad for approval.  But he has admitted that he received Rs.2,39,615/- as booking money, but as per clause of the booking slip if any one cancelled the said booking, in this case 5% shall be deducted as cancellation amount and if op already expressed his desire to return the balance amount after deducting 5%.  But complainant inspite of repeated requests, reminders failed to take refund and for which the present complaint is not maintainable and complainant has failed to prove the negligence and deficiency on the part of the op for which the complaint should be dismissed.

                                           Decision with reasons

After hearing the Ld. Lawyers of both the parties and also considering the entire complaint and written version, we have gathered that undisputed fact is that complainant paid Rs.2,39,615/- as advance amount that is including service tax and truth is that dispute was presented for mediation before the Dy. Asstt. Director, CA & FBP, and before that authority op appeared the matter for mediation and said authority directed to pay Rs.2,37,615/- after deducting Rs.2,000/- as processing fees.  But op did not comply that order.  For the sake of the argument if it is accepted that op was fair in his trade, he must have to report to the complainant before entering into such matter at the time of taking advance money that certain affairs of the said property is incomplete.  But fact remains that op did not disclose all those matters and truth is that till now the sanctioned plan has not been passed by the Zilla Parishad.  Then as per law the entire construction is illegal.  But even then the op has been continuing the construction trading by alluring the intended purchasers in such a manner which is no doubt unfair trade practice on the part of the op.

Most interesting factor is that op’s Ld. Lawyer was asked whether op was willing to refund against the query, Ld. Lawyer for the op submitted that op was always willing to refund the advance amount as received by the op from the complainant after deduction of 5% of the total amount.  But when further query was made whether the said amount has been sent by any cheque when Ld. Lawyer for the op submitted that was the wrong submission and considering that fact, it is clear that not a single developer or promoter is willing to refund the money which is received after cancellation and it is their unfair trade practice and fact remains that complainant had no scope to appear before this Forum if op used to comply the order of the CA & FBP as passed in the mediation in between the parties, but that has also not been complied it.  It indicates that op has no desire to comply the order of the Government authority also because they are ops’ developer having their muscleman, having their money.  So, they are not in a position to comply the order of the Government also.

When that is the fact, then it is clear that op had no intention to refund the said amount.  But willfully he did not do it though complainant prayed for cancellation which is accepted.  Considering all the above fact, we are convinced to hold that though op got advance money for selling flat to intended purchasers, when till today no sanctioned order for construction of the building is incomplete and Zilla Parishad has not yet sanctioned the plan but construction has been made.  That is gross illegality on the part of the developer.  So, we are convinced that complainant had good ground to cancel the said initial agreement because no purchasers must have to purchase any such property in respect of which no sanctioned plan is yet passed by Zilla Parishad and in this regard complainants’ grievance is justified and his prayer for cancellation is no doubt legal and valid and as per provision of that initial agreement, no doubt complainant is entitled to get back the entire amount of Rs.2,37,615/- but as because the process fees was already assessed by CA & FBP to the extent of Rs.2,000/- that amount may be deducted and complainant is entitled to Rs.2,37,615/- from the op and op has no legal authority to deduct the same when he took advance from the complainant by cogent material and paper. 

But fact remains at the relevant time flat was not completed as building land and no sanctioned plan has yet been passed by the Zilla Parishad.  But construction is being made and that is no doubt an over act on the part of the op and such an act on the part of the op tantamount to unfair trade practice and for which the complainant cannot deduct any amount to the extent of 5% over the deposited amount and legally the complainant is entitled to Rs.2,37,615/- and if op as per order of the CA & FBP -------------------- sent the cheque in respect of an amount of Rs.2,37,615/- and in that case invariably op had no deficiency or negligence but when he is not complied with the same over this negligence on the part of the op is well proved and at the same time total conduct of the op tantamount to unfair trade practice and that has not been followed by the op till now and for which this complaint succeeds.

Hence, it is

                                             ORDERED

That the complaint be and the same is allowed on contest against the op with a cost of Rs.10,000/-.

Ops are jointly and severally directed to pay a sum of Rs.2,37,615/- to the complainant within one month from the date of this order and further for harassing the complainant in such a manner, op shall have to pay a sum of Rs.10,000/- as compensation to the complainant and accordingly op jointly and severally paid Rs.2,57,615/- (Rs.2,37,615/- + Rs.10,000/- compensation + Rs.10,000/- as litigation cost) within one month from the date of this order failing which for non-compliance of this order, op shall have to pay penal interest @ Rs.300/- per day till full satisfaction of the decree.

For adopting unfair trade practice by the ops, ops are directed to pay punitive damages of Rs.20,000/- to this Forum and it is imposed for checking unfair trade practice in future by the ops and same shall be deposited to this Forum by the ops within one month from the date of this order.  If ops fail to comply the order within stipulated time (within one month from the date of this order) in that case penal action shall be started against them and for that reason further penalty may be imposed.  Penal interest if it is collected, same shall be deposited to this Forum.