West Bengal

Birbhum

CC/14/06

Chhabi Das, W/o Lt. Ramapati Das, - Complainant(s)

Versus

1) Sanjit Bowmik, C.M.D, C/o Sagarika Kunj, - Opp.Party(s)

Joygopal Das

15 Jun 2015

ORDER

J U D G E M E N T

Dr. Soumen Sikder_   Member

One Chhabi Das of Baruipara, Suri filed a complaint against Sanjit Bhowmik, C.M.D, Sagarika Realtor Project India Ltd., Bolpur, Birbhum and Sonali Chatterjee of Darpasila, Bolpur, Birbhum. The complaint, in short, is that Chabbi Das took membership under Subhadeep Scheme of Sagarika Realtor Project India Ltd. The complainant paid Rs. 2,50,000 as advance booking amount for a plot on condition that O.P Company would reimburse to the complainant @ Rs. 3000 per month till registration of the plot was done in favour of the complainant. O.P No.1 issued membership certificate and paid five installments of monthly regular income to the complainant. After that O.P Company stopped the monthly regular income installments and deliberately delayed to execute the agreement. The complainant visited to the office of the O.P Company several times and came to know that O.P Company did not take any step to execute the agreement. As a result, the complainant wanted to surrender this membership and to get back advance booking amount. O.P Company verbally assured and took the original certificate later he intimated the complainant that 30% discount would be deducted. The complainant refused to accept 70% of the deposited amount and raised objection against such discount. O.P No.1 did not pay any heed. Hence, the case.

O.P No.1 appeared and contested the case by filing written version. He mentioned in written version that the case was not maintainable in that Forum. The complainant subscribed membership by payment of Rs. 2,50,000 towards booking a plot of 25000 sqf. of land for residential purpose. O.P Company issued certificate of immovable property booking. There was an option of buyback the certificate at the end of expiry of membership. Before expiry of membership the question of buyback of the policy or the question of 30% deduction of deposited money did not arise. Even there was no provision of monthly reimbursement in terms and conditions.

O.P No.2 Sonali Chatterjee did not appear. The case was heard ex parte against her.

The complainant filed certain documents in support of her complaint. O.P No.1 filed only written version. Upon pleading of the parties following three points are to be considered for discussions;

POINTS

1. Whether the complainant is a consumer or not?
2. Whether the O.Ps have deficiency in service or whether the O.Ps have adopted unfair trade practice with the complainant?
3. Whether the complainant is entitled to reliefs as prayed for?

DECISION WITH REASONS

Point No. 1 O.P No.1 raised the point of non-maintainability of the case as the complainant was not a consumer as per definition of the Consumer Protection Act. He stated that O.P Company dealt in immovable property particularly plot of land / residential / commercial apartment under the scheme namely SUBHADEEP at Bolpur, Birbhum.

Regarding the point of non-maintainability of the case the Forum is not unmindful to mention that the Consumer Protection Act was further amended in 1993 basing upon the recommendation of the high power committee constituted by the Ministry of Civil Supplies and Public Distribution, Govt. of India. One of the prominent among the amendments is that the definition of service has been included housing construction. Apart from that, we have gone through the judgement (Supra) and find that both the subject of housing and statutory authority have been brought within the ambit of Consumer Forums.(B.K. Probha =Vs.= Secretary, Kendriya Upadya Rasanga, 1(2004) CPJ127(NC). Hence, the point is in favour of the complainant.

 Point No. 2 Coming to the next point the complainant took immovable property booking membership.(for one time booking) on payment of advance booking amount of Rs. 2,50,000 on 26.11.2012 from O.P Company through the agent Sonali Chatterjee, O.P No.2. An immovable property booking membership allotment certificate had been issued to the complainant (allotment No 001004400105). The certificate reveals that there was a provision of regular income of Rs. 3,000 per month and at the end of the plan buyback compensation will be paid Rs. 2,65,000/- on expiry of membership i.e. on 26.11.2015. The O.P Company issued 12 postdated cheques of Rs. 3,000 each for the months from December 2012 to November 2013 for reimbursement of regular income. The complainant could encash only 5 cheques from December 2012 to April2013. The O.P Company stopped payment from May2013 to November 2013 against the postdated cheques which had been issued previously. The complainant went to the office of O.P Company for an enquiry on regular income scheme as well as the advancement of allotment of plot. But she got no satisfactory reply from O.P Company. Then she decided to surrender her membership. She approached O.P Company for refunding the advance booking amount of Rs. 2,50,000. After getting oral assurance from O.P Company the complainant filed an application with the original allotment certificate to O.P No. 1 on 20.05.2013. TheO.P Company received the same by putting seal and signature on the xerox copies. After a few days the complainant came to know that 30% of the deposited amount would be deducted. But there was no such provisions in the terms and conditions of Subhadeep Scheme.

            The O.P Company in his written version categorically denied that there was no provision of monthly regular income in terms and conditions of the policy. It is true that there is no mention regarding regular income overleaf of the policy certificate. But on the front page of the certificate issued by O.P No.1 it is clearly mentioned about entitlement of getting monthly regular income of Rs. 3,000. The postdated cheques issued by O.P No.1 in favour of the complainant also support the claim of the complainant.

            Terms and conditions No.1 says that, “the adjustable credit value shall be paid on the end of the terms of surrender of the allotment certificate. The allotment certificate (one time booking and regular income plan) may be surrendered to the Company in advance i.e. three months before the due date. ….”

But in practical, the authority of the Company accepted the application along with allotment certificate for refunding deposited amount as the complainant surrendered it 2 ½ years before i.e. on 20.05.2013. The question may be arose why O.P Company accepted application along with original allotment certificate for pre-mature surrender violating the terms and conditions.  It is evident from the documents that O.P Company himself violated terms and conditions and he imposed the condition of 30% deduction from one time advance booking amount. This is unfair trade practice.    

            From the above discussion the Forum thinks that O.P No.1 has done unfair trade practice with the complainant. Therefore, this point also goes in favour of the complainant.

Point No. 3 This has been proved that the O.P Company has done unfair trade practice with the complainant and there is deficiency in service on the part of the O.P Company. The complainant is entitled to reliefs. O.P No.1 is liable to pay the advance booking amount along with 10% interest. The complainant is also entitled to litigation cost of Rs. 2,000.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 06/2014 be and the same is allowed on contest  with cost  against the O.P No. 1 and ex parte against O.P No.2.

            The O.P No. 1 is directed to pay the complainant Rs.2,50,000  along with 10% interest on it from the date of 20.05.2013 to the date of actual payment and Rs. 2000 as litigation cost. The aforesaid order will be complied with by the O.P. No. 1 within one month from the date of receipt of a copy of this order failing which the complainant shall be at liberty to resort to due process of law and procedure. 

Copy of this order be supplied to the parties each free of cost.

 

(Dr. S. Sikder  Member)       (Miss. R. Mukherje  Sr.Member)        (Abdul Quader  President)