10....11.02.2021...
Today is fixed for delivery of judgement/final order.
Final order is ready. It is sealed, signed and delivered in open Forum/Commission.
It is Ordered that,
That the case be and the same is hereby allowed ex parte against the O.P. Nos. 1 and 2 with litigation cost of Rs. 10,000/- and dismissed ex parte against the O.P. No. 3 without cost.
The O.P. Nos. 1 and 2 are directed to refund the advance amount of Rs. 10,45,748/- to the complainants along with interest @ 6% p.a with effect from 14.05.2014 till full realization of the entire amount within 60 days from the date of this order.
The O.P. Nos. 1 and 2 are also directed to pay compensation of Rs. 25,000/- and litigation cost of Rs. 10,000/- to the complainants by 60 days from the date of this order.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAS
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C.NO._08_ OF 2020
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
03.02.2020 24.02.2020 11.02.2021
Present : President : Asish Kumar Senapati
Member: Jagdish Chandra Barman
COMPLAINANT : 1. Mr. Ranjit Kumar Mitra alias Ranjit Mitra, S/o – Late Krishna Chandra Mitra.
2. Mrs. Gouri Mitra, W/o - Mr. Ranjit Kumar Mitra alias Ranjit Mitra.
G-1284, S/F Chittaranjan Park, New Delhi, 110019 represented through their Constituted Attorney Mr. Shambhu Nath Mitra, S/O Late Jyoti Prasad Mitra, Residing at 144 D, Ho-chi Minh Sarani, P.S. Thakurpukur, Kolkata- 700061, South 24 Pgs.
Versus
O.P/O.Ps : 1. M/S. Fairland Development India Ltd. Previously known as Fairland Development Private Ltd., a limited company incorporated under the provision of Companies Act, 1956 having its registered office at 47, Park, Street, Suite No. 9A, First Floor, P.S. - Park Street, Kolkata- 700016.
2. M/S. Soumita Construction Private Limited , a limited company incorporated under the provision of Companies Act, 1956 having its registered office at 186 Rajarhat Road, P.S. – Airport, Kolkata – 700 157.
3. Team Taurus Corporate Office DN51, Merlin Infinite, Suit No. 610, 6th Floor, Sector – “V”, Salt Lake, P.S. – Bidhannagar East, Kolkata – 700091.
Sri Asish Kumar Senapati, President
This is a consumer complaint under section 12 & 13, C.P. Act, 1986.
One Ranjit Mitra and Gouri Mitra (hereinafter referred to as the complainant) filed the case through their Constituted attorney Shambhu Nath Mitra against M/S. Fairland Development India Ltd. and 2 others (hereinafter referred to as the O.Ps), praying for refund of advanced amount of Rs. 10,45,748/- with interest @ 18% p.a. till realization of the entire amount, compensation of Rs. 2,00,000/- and litigation cost of Rs. 50,000/- alleging deficiency in service.
The sum and substance of the complaint is as follows:
The complainants were in search of a residential accommodation and entered into memorandum of understanding with the O.P. No. 2 dated 01.03.2013 for one self contained flat.
The complainants paid Rs. 7,35,000/- and subsequently an agreement for sale was executed between the complainants and the O.P. Nos. 1 and 2 dated19.0514 for flat No. 4B measuring 887 sq.ft. in Tower No. 4 being situated at phase 1B of the project namely “The County” at Paillan. The complainants also paid Rs. 3,10,748/- and the total consideration amount was fixed at Rs. 20,91,494/-. The complainants requested the O.P. No. 2 for completion of the flat and deliver it to them but the O.P. No. 2 informed the complainants that the flats had not yet been completed on account of some problems and they offered to sell a self contained flat in the same development project namely “The County” at Paillan in Tower No. 2 phase 1A and the total paid amount of Rs. 10,45,748/- would be adjusted with the price of that flat. On banking upon the assurance of the O.P. No. 2, the complainants entered into a fresh agreement on 18.11.2017 for purchase of the flat being No. 2E measuring 1014 sq.ft. at Paillan in Tower 2 on Phase 1A and total consideration amount was fixed at Rs. 22,91,950/- by operation of the agreement dated 18.01.2017 earlier agreement dated 19.05.2014 was rescinded. The O.P. No. 3 was one of the agent of O.P. No. 2. The complainants requested the O.P. No. 2 to deliver possession in habitable condition and to execute and register the sale deed in favour of the complainants on receiving the balance consideration amount of Rs. 12,06,202/-. The O.P. No. 2 assured them more than ones but of no result. Ultimately, the complainants issued a Lawyer’s letter through their Advocate A.K. Chowdhury dated 06.08.2019 asking the O.Ps to refund the total amount of Rs. 10,45,748/-. The O.P. No. 1 gave a reply dated 19.08.2019 against the notice dated 06.08.2019 denying its responsibility to refund the said amount. The O.P. No. 2 gave a reply on 24.10.2019 requesting the complainants not to cancel the agreement dated 18.11.2017. The relationship of O.P. 1 and 2 is principal and agent, as such the O.P. No. 1 is equally liable with the O.P. No. 1. The complainants sustained mental pain and agony and financial loss by the O.P. No. 2 and they are entitled to get a sum of Rs. 2 Lac as compensation for mental agony and pain as well as financial loss. The cause of action arise on 09.09.2019 when the O.Ps did not refund the advanced amount of Rs. 10,45,748/- in spite of service of the notice. Hence, the case has been heard ex-parte against the O.Ps.
The complainant filed evidence on affidavit on 18.12.2020 in support of their complaint and submitted Xerox copies of documents. The Ld. Advocate for the complainants also filed BNA on 14.01.2021 along with downloaded copies of a number of Judgments.
On the basis of the above versions, the following points are framed for proper adjudication of the case :-
- Are the complainants a consumer under the provisions of C.P Act?
- Have the complainants cause of action to file the case?
- Is there any deficiency in service on the part of the O.P. / O.Ps?
- Are the complainants entitled to get an order against the O.Ps, as prayed for?
DECISION WITH REASONS
Point nos. 1 & 2:-
The Ld. Advocate for the complainants submits that the complainants are the consumers under the O.P. Nos. 1, 2 and 3. It is argued that memorandum of understanding dated 01.03.2013 was executed between the complainants and the O.P. No. 2. and the agreement for sale dated 19.05.2014 was executed between the complainants and the O.P. No. 1 represented by its Constituted Attorney, O.P. No. 2. It is contended that the second agreement for sale dated 18.01.2017 was also executed in between the complainants and the O.P. No. 1 represented by the O.P. No. 2. He further argues that the money receipts dated 13.05.2014 were executed by the O.P. No 2 but the name of the O.P. No. 3 is mentioned in the right top of the receipts. It is further urged that the complainants have cause of action to file the case as the O.Ps. did not refund the advanced amount of Rs. 10,45,748/- in spite of service of notice. We have gone through the written complaint, evidence on affidavit filed by the complainants, Xerox copy of documents including money receipts showing payment of advanced amount of Rs. 10,45,748/-. We have also gone through brief notice of argument and the decisions referred by the Ld. Advocate for the Complainants. On a careful consideration, we find that the complainants entered into a memorandum of understanding dated 01.03.2013 with the O.P. No. 2 and subsequently agreement for sale dated 19.05.2014 was executed between the complainants and the O.P. no. 1 represented by its constituted Attorney, the O.P. No. 2. We also find that the complainants subsequently entered into an agreement dated 18.11.2017 with the O.P. No. 1 represented by its Constituted Attorney, the O.P. No. 2. On going through the money receipts dated 13.05.2014 we find that the O.P. No. 2 received the amount of Rs. 10,45,748/-. We find that there is no privity of contract between the complainants and the O.P. No. 3. Mere mention of the name of the O.P. No. 3 in the right top of the money receipts dated 13.05.2014 does not make the O.P. No. 3 liable for performing any act.
Hence, we have no hesitation to hold that the complainants are the consumers under the O.P. Nos. 1 and 2. On perusal of the reply of the Lawyer’s notice dated 19.08.2019, we find that the O.P. No. 1 denied its liability and the O.P. No. 2 requested the complainants to have patience by its letter dated 24.10.2019. The complainants have not yet got back the advance money and they were compelled to file the case. Therefore, the complainants have cause of action to file the case against the O.P. Nos. 1&2.
Point Nos. 3 & 4:-
The Ld. Advocate for the complainants submits that the complainants paid Rs. 10,45,748/- as advance for purchase of a flat but the O.Ps failed to perform their part of performance and they did not refund the advanced amount in spite of service of demand notice dated 06.08.2019. It is urged that the complainants are entitled to get back their advance money along with interest @ 18% p.a. and compensation of Rs. 2,00,000/- for mental pain and agony and financial loss. He also prays for awarding Rs. 50,000/- as litigation cost.
We have gone through the materials on record and the decisions referred by the Ld. Advocate of the complainants. We find that the complainants entered into a memorandum of understanding dated 01.03.2013 with the O.P. No. 2 and paid Rs. 10,45,748/- to the O.P. No. 2 and executed an agreement for sale dated 19.05.2014 with the O.P. No. 1 represented by the O.P. No. 2.
Subsequently the complainants executed an agreement for sale dated 18.11.2017 with the O.P. No. 1 represented by its Constituted Attorney, O.P. No. 2. The complainants sent demand notice dated 06.08.2019 asking the O.Ps to refund of Rs. 10,45,748/- with interest within 3 weeks from the dated of receipt. We also find that the O.P. No. 1 by its letter dated 19.08.2019 denied its liability to refund the advanced amount by its letter dated 19.08.2019 and the O.P. No. 2 by letter dated 24.10.2019 requested to complainants not to cancel and retain the said flat. Therefore, it is clear that the O.P. No. 2 received the advance amount of Rs. 10,45,748/- and agreement of sale was executed between the complainants and the O.P. No. 1 through its Constituted Attorney, O.P. No. 2.
In our considered opinion, the complainants are entitled to get back their advance amount of Rs. 10,45,748/- with interest @ 6% p.a. with effect from 14.05.2014 till realization of the entire amount. We find that the O.P. Nos. 1 and 2 have yet refunded the advance amount to the complainants in spite of receiving demand notice dated 06.08.2019 and the Complainants have suffered mental pain and agony and they compelled to file the case. Therefore, the complainants are also entitled to get Rs. 25,000/- as compensation for mental pain and agony and Rs. 10,000/- for litigation cost.
In the result, the case succeeds in part.
Hence,
ORDERED
That the case be and the same is hereby allowed ex parte against the O.P. Nos. 1 and 2 with litigation cost of Rs. 10,000/- and dismissed ex parte against the O.P. No. 3 without cost.
The O.P. Nos. 1 and 2 are directed to refund the advance amount of Rs. 10,45,748/- to the complainants along with interest @ 6% p.a with effect from 14.05.2014 till full realization of the entire amount within 60 days from the date of this order.
The O.P. Nos. 1 and 2 are also directed to pay compensation of Rs. 25,000/- and litigation cost of Rs. 10,000/- to the complainants by 60 days from the date of this order.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
Dictated and corrected by me
