West Bengal

South 24 Parganas

CC/13/2015

1. Shri Abhijit Roy S/O Shri Digendra Nath Roy. - Complainant(s)

Versus

1. M/S. Greenhaven Realty Pvt. Ltd. - Opp.Party(s)

Shri Manoj Kumar Halder.

15 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _13_ OF ___2015_

 

DATE OF FILING : 13.1.2015                       DATE OF PASSING JUDGEMENT: 15.9.2016

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :     Sharmi Basu 

                                                                             

COMPLAINANT        :     1. Shri Abhijit Roy,s/o Shri Digendra Nath Roy  at 29/70, 3^rd floor, West Patel Nagar, New Delhi-110008 behind Gurudwara represented by his Constituted Attorney Shri Digendra Nath Roy,s/o late Mahendra Nath Roy of 35, School Road, Santoshpur, Flat no.6, Kolkata – 75.

                                           2.     Smt. Kalpana Roy,w/o Shri Digendra Nath Roy of 29/70, 3^rd floor, West Patel Nagar, New Delhi-110008 behind Gurudwara represented by his Constituted Attorney Shri Digendra Nath Roy,s/o late Mahendra Nath Roy of 35, School Road, Santoshpur, Flat no.6, Kolkata – 75.

 

-VERSUS  -

 

O.P/O.Ps                            :     1. M/s Greenhaven Realty Private Limited of GF-12, 1953, Rajdanga Main Road,(1^st floor), Kolkata – 107 , P.S. Kasba

                                              2.    Mr. Biswanath Mondal,s/o not known, Chairman cum Managing Director and Authorized Signatory of M/s Greenhaven Realty Private Limited

                                             a)     M/s Greenhaven Realty private Limited at GF-12, 1953, Rajdanga Main Road,(1^st floor), Kolkata – 107 , P.S. Kasba

                                             b)     residing at Village-Purba Goyalbati, Kheyadaha, Sonarpur, South 24-Parganas, Kolkata -743369
3.     Mrs. Ira Mondal,w/o not known, Director of M/s Greenhaven Realty Private Limited.

                                           a)     M/s Greenhaven Realty Private Limited of GF-12, 1953, Rajdanga Main Road,(1^st floor), Kolkata – 107 , P.S. Kasba

                                           b)     residing at Village-Purba Goyalbati, Kheyadaha, Sonarpur, South 24-Parganas, Kolkata -743369
4.     Mr. Sudipta Kumar Ghosh,s/o not known, Director of M/s Greenhaven Realty Private Limited

                                           a)     M/s Greenhaven Realty Private Limited of GF-12, 1953, Rajdanga Main Road,(1^st floor), Kolkata – 107 , P.S. Kasba

                                           b)   Residing at C-181, Baisakhi Abasan Block AG, Salt Lake, Kolkata-91.

 

 

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the allegation that respondent company is a developer and used to develop different nature of plots of land ,for which they have decided to develop land under the brand name Greenhaven Realty Private Limited with several bighas f land lying and situate in Mouza Sangur within P.S. Sonarpur, divided in various scheme plots of land measuring an area 2,4,6 and 10 cottahas of plots and the developer has undertaken to execute such development work such as preparation, conversion and drawing suitable plan etc for necessary approval by the competent authority. Accordingly in the year 2011 complainant and his mother were interested to purchase a plot of land to build their own house in the state of West Bengal. Accordingly negotiation was going on and thereby complainant -1 paid Rs.94000/- vide cheque no.679477 dated 2.11.2011 drawn on SBI as of 20% valuation of the plot to the respondent company. Subsequently O.P company entered into an agreement for sale dated 23.4.2012 with the complainant and hi mother at a total consideration of Rs.4,30,000/- in respect of schedule land measuring 4 cattah being plot no.4B110 together with right to take electricity, tap water, telephone etc. connecting through over and under the said 20 ft. wide common passage adjacent to the said plot of land together with all easement rights and appurtenance thereto. Complainant already paid full consideration money of Rs.4,30,000/- . Complainant visited the office of the O.Ps several occasions and requested to cause necessary endeavour to execute necessary deed of conveyance in favour of the complainants but all attempts failed in vein. Thereafter, in the month of April 2004 O.Ps came with another proposal that they have decided to modify their project as plot with Bunglow asking for further payment towards additional cost but complainant declined to take such offer and asked for refund of the money paid with banking rate of interest with compensation. Thereafter on several occasions communicated such things to the respondents/O.Ps. Thereafter, respondent no.4 Sri Sudipta Kumar Ghosh assured to place the same into the board meeting for suitable negotiation. Thereafter, complainant through his attorney Digendranath Roy made an application to the O.Ps requesting refund of the money within banking rate of interest and compensation which was received on 19.6.2014. It has claimed that on 16.8.2014  issued a letter under the signature of the respondent no.4 intimating refund of amount of Rs.6 lacs through cheque being no.098879 dated 16.9.2014 drawn on ICICI Bank ,Kasba Branch and respondent no.2 being the Chairman of the company issued the said cheque. But the said cheque was dishonoured with remarks “Funds Insufficient” . Thereafter, complainant sent a notice through the Ld. Advocate and thereafter much water has flown regarding the dispute between the parties. Complainants beg to state that the complainants’ dream of their own house in the State of West Bengal has been shuttered at the instances of willful and deliberate unfair trade practices of the O.Ps. Hence, this case praying for payment of Rs.6 lacs  and compensation to the tune of Rs.3 lacs , cost of the litigation.

The O.P-1 filed written version and has challenged the maintainability of the case and denied all the allegations leveled against them. The positive case of the O.P-1 is that complainant with an intention to purchase a plot of land paid Rs.4,30,000/- on 19.6.2014 and complainant through Constituted Attorney made an application for refund of the deposited money of Rs.4,30,000/- along with interest and in response thereof this O.P refunded the said Rs.4,30,000/- and interest plus compensation totaling to Rs.6 lacs but due to non-encashment of the said cheque complainant filed this case. So, this case is not maintainable. It has claimed that non-encashment of cheque accrued different cause of action and the said dispute cannot be treated as a consumer dispute. Accordingly O.P-1 prays for dismissal of the case.

Points for decision in this case is whether O.P-1 and other O.Ps ,in whose against the case is running in exparte, acted any deficiency in service or unfair trade practice or not.

                                                Decision with reasons

Needless to say that O.Ps relied a decision reported in 2014 (3) CPR 76 (NC) . We have carefully gone through the facts and circumstances of the reported decision as relied by the O.Ps wherein Mirut Development Authority through its Secretary Mirut U.P was the petitioner and Smt. Manju Gupta  was respondent  and para 12 and 13 is very much important to find out the facts and circumstances as well as observation of the Hon’ble National Commission . We find that Hon’ble National Commission has observe d in para 12 that “It is manifestly clear from the record that respondent herself had applied for the refund of the amount and in pursuance thereof she has received a cheque of Rs.52,251/- from the petitioner. Moreover, the cheque had already been encashed by the respondents  more than 12 years ago. Howver, respondents for reasons best known to her had concealed all the material facts from the Consumer Forum. Once respondents had claimed refund amount then ceased to be a consumer”.

It has further observed by the Hon’ble National Commission that “it is well settled that any litigant who approached any judicial Forum with an unclean hand and concealed material facts, is not entitled to get any relief in equity. Under this circumstances since the respondents had concealed the material facts, we have no option but to allow the present petition. Consequently complaint filed by the respondent before the District Forum is liable to be dismissed with cost of Rs.10,000/-”. 

So, at the outset this decision is undoubtedly very much attractive with the present case ,but if we go through the observation of the Hon’ble Bench of the Hon’ble National Commission, then we find that the facts and circumstances of this instant case and the reported case are quite different. Herne, nothing has been concealed. So, it cannot be said that the complainant is not in unclean hand. Secondly, complainant compelled to get the money  with banking rate of interest and compensation when the proposal was made from the side of the O.ps after collecting the entire consideration money of Rs.4,30,000/- that the said land will be constructed with Bunglow, not the plot. That part ws not mentioned in the agreement for sale, that is why, in a compelling circumstances complainant ought to have a dream to raise a building according to their choice within the State of West Bengal at Sonarpur but failed to fulfill the said dream due to the unfair trade practice adopted by the developer/O.P ,that is why complainant wanted to get back the money. It is not he end of this episode because we failed to understand how dare the respondent no.1 and other respondents to rely the decision of the Hon’ble National Commission, particularly when we are sorry to say that they have knowledge about the observation fo the Hon’ble National Commission in para 12 and 13 and when the Hon’ble National Commission has observed that complainant ceased to be a consumer as because the complainant of the reported case accepted the cheque of Rs.52,258/- and the said amount has already been encashed and after lapse of 12 years again claimed remaining amount, that is why, Hon’ble National Commission has rightly held that when the complainants accepted the part payment and encashed the same, he ceased to be a consumer. So, the total discussions should be scrutinized.

But in the instant case it is true that complainant in a compelling circumstances compelled to get the refund money and it is admitted position that O.P sent a cheque amounting to Rs.6 lacs being cheque no.098879 dated 16.9.2014 which has clearly mentioned in para 15 of the complaint case. So, there is no concealment firstly. Again the said cheque was not encashed. Thus the total circumstances is completely different from the reported case as relied by the O.Ps. So, that reported case is not helpful to the O.Ps , particularly when our considered observation is that this is a glaring example of unfair trade practice, because of the fact that by sending the said cheque of Rs.6 lacs ,which was ultimately dishonoured with the remark “fund insufficient” and by this act the O.Ps clearly invited litigation more and more and complainant easily can file a specific case under the N.I Act in the Criminal Court . But complainant being an ordinary man failed to choose that procedure and we hold that when the said cheque was not encashed and even a single rupees was not encashed, complainant cannot be said to be a “Ceased Consumer” and we also hold that complainant is a consumer ,of course, when O.ps themselves derailed from the agreement for sale i.e. instead of handing over the possession of the agreed plot after accepting total consideration money of Rs.4,30,000/- wanted to construct a Bunglow ,definitely complainant may not agree to the same, that is why complainant wanted refund of the money and accepting the same O.P sent a cheque an amount of Rs.6 lacs. So, sending that cheque clearly suggests that O.P themselves derailed from the agreement for sle ,otherwise O.Ps did not agreed to refund the money and instead of that offer the said plot. But inevitable did not happen. It is clearly mentioned in the letter dated 19.6.2014 issued by the Attorney of the complainant that complainants are not agreeable to any of the offers made by the O.Ps in the modified project and we demand refund of our deposited amount against plot no.4B110 along with due compensation with present market value on the plot. So, it is clear that modified options of the project i.e. plot with Bunglow which was not accepted by the complainant, that is why, complainant declined to take such offer and asked for refund of his money with banking rate of interest which has been mentioned in para 11 also.

So, we find that complainant’s claim is very much justified when he is a consumer and O.Ps failed to give services as per the agreement executed between the parties on 23.4.2012. It should not be out of record that at the time of submitting BNA O.P-1 has claimed that the dishonor of the cheque is a different cause of action and thereby complainant accrued right to file criminal case under NI Act for recovery of Rs.6 lacs and the present claim is nothing but a money claim which cannot be claimed as the case under the C.P Act. Moreover, the other part of the argument is that complainant wanted to purchase a plot of land which is a transaction relating to sale simplicier and there is no question of dispute regarding housing construction. The answer of the two point is negative because there is a story of developer. So, once it is a development service has already been entered. Hon’ble Supreme Court of India also held in Civil Appeal no. 4432 -4450 of 2012 arising out of SLP © no.3499-3517 of 2011 (M/s Narne Construction P. Ltd. Vs. Union of India & Ors etc. So, that two parts of argument have no leg to stand upon. It is also observed by this Bench that the welcome the complainant to prefer a case under NI Act is not the duty of the O.P. Here the transaction  was sale of plot after development. So, when the O.Ps derailed from the agreement for sale after accepting entire consideration money of Rs.4,30,000/- complainant being a consumer did not accept that proposal ,that is why, wanted to get refund of money having no faith upon the O.Ps. We have perused all the e-mails and the correspondences from where we find how the O.Ps after sending a cheque killed time and lastly when the complainant present the cheque to their banker it was dishonoured with the remark “Insufficient Fund”. This is a glaring example of unfair trade practice because on one hand O.Ps derailed from the agreement for sale after accepting the money and on the other hand when the complainants being a consumer wanted to get back the said money with reasonable banking rate of interest and compensation, then sent a cheque which was ultimately dishonored and showing his finger not only in the BNA but in the written version by O.P-1 that it is a different cause of action. We hold that everything will not go in favour of the unfair person herein the O.P . If sitting in a chair of the Forum ,which is a judicial proceedings, we accept this type of glaring example of unfair trade practice then the tears of the complainants at large will not be meted out by passing any Act by our Hon’ble Legislature. So, we propose to stop this type of unfair trade practice by these O.Ps.

With that observation we hold that complainant has been able to prove deficiency in service and unfair trade practice on the part of the O.Ps in light of the observation made in above.

Accordingly, it is

                                                                        Ordered

 The complaint case is allowed on contest against O.P-1 and exparte against the rest of the O.Ps.

All the O.Ps jointly and/or severally directed to refund Rs.4,30,000/-  along with interest @15% p.a from the date of filing of this case i.e. on and from 13.1.2015 to till its realization to the complainants  within 45 days from the date of this order.

All the O.Ps are jointly and/or severally further directed to pay compensation to the tune of Rs.2lacs and litigation cost of Rs.25000/- to the complainants within 45 days from the date of this order, failing which further interest will carry @10% p.a on the total awarded amount from the date of default to till its realization.

On careful scrutiny of the case we find that if we do not propose any punitive damage then passing the Act by the Hon’ble Legislature will be highly frustrated in this appropriate case which we have already mentioned in the body of the order regarding the unfairness of the O.Ps. Accordingly punitive damage is assessed at Rs.2 lacs out of which Rs.1 lac will be deposited in the Consumer Legal Aid Fund and Rs.1 lac will be given to the complainants and that amount has also to be paid by the O.Ps jointly and/or severally within 45 days from the date of this order.

The prayer of the complainants for refund of Rs.6 lacs which was the cheque amount is refused because the said cheque amount will be refunded by the appropriate Criminal Court considering the dishonor of cheque under the N.I Act. So, that prayer of the complainant cannot be entertained since the total consideration money is only Rs.4,30,000/- .

If the O.Ps failed to comply the orders in toto within the stipulated period, then complainants are at liberty to execute the order through this Bench.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

                                                       Member                                                                President

Dictated and corrected by me

                               

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

 

 

                                               

                                                            Ordered

 The complaint case is allowed on contest against O.P-1 and exparte against the rest of the O.Ps.

All the O.Ps jointly and/or severally directed to refund Rs.4,30,000/-  along with interest @15% p.a from the date of filing of this case i.e. on and from 13.1.2015 to till its realization to the complainants  within 45 days from the date of this order.

All the O.Ps are jointly and/or severally further directed to pay compensation to the tune of Rs.2lacs and litigation cost of Rs.25000/- to the complainants within 45 days from the date of this order, failing which further interest will carry @10% p.a on the total awarded amount from the date of default to till its realization.

On careful scrutiny of the case we find that if we do not propose any punitive damage then passing the Act by the Hon’ble Legislature will be highly frustrated in this appropriate case which we have already mentioned in the body of the order regarding the unfairness of the O.Ps. Accordingly punitive damage is assessed at Rs.2 lacs out of which Rs.1 lac will be deposited in the Consumer Legal Aid Fund and Rs.1 lac will be given to the complainants and that amount has also to be paid by the O.Ps jointly and/or severally within 45 days from the date of this order.

The prayer of the complainants for refund of Rs.6 lacs which was the cheque amount is refused because the said cheque amount will be refunded by the appropriate Criminal Court considering the dishonor of cheque under the N.I Act. So, that prayer of the complainant cannot be entertained since the total consideration money is only Rs.4,30,000/- .

If the O.Ps failed to comply the orders in toto within the stipulated period, then complainants are at liberty to execute the order through this Bench.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

                                                       Member                                                                President