DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _394_ OF ___2015_
DATE OF FILING : 1.9.2015 DATE OF PASSING JUDGEMENT: 31/03/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Sharmi Basu
COMPLAINANT : Mrs. Mallika Das,d/o Mr. Arun Kumar Hazra of 60/14, Kantapukur 3rd Bye Lane, Ichapur, Kadamtala, P.S. Bantra, Dist. Howrah-711101.
-VERSUS -
O.P/O.Ps : 1. The Dirctor, M/s India Green Realty (P) Ltd. at Rajdanga Main Road, P.S. Kasba, Kolkata – 107.
2. Sri Amitava Samanta, s/o late Dilip Kumar Samanta of ½, Purbachal Nibedita Road, P.S. Kasba, Kolkata – 78.
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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 ground that she has booked one Bunglow type two storied building consisting of four bed rooms, one drawing cum dining hall, one kitchen, five toilets, five W.C with separate servant room with attached toilet ,two car parking space together with undivided portions of land at a cost of Rs.75 lacs. Complainant upon the trust and good faith being attracted with the advertisement paid Rs.20 lacs to the O.P-1 by cash ,cheque and demand draft on different dates which are mentioned in the Memo of consideration in the agreement for sale dated 11.10.2012. The Agreement for sale was executed on that date. Photocopy of agreement for sale is annexed herewith. Thereafter complainant visited on several occasions for the said project and she was not satisfied about the project and found lot of discrepancy in the said project ,which are contrary to the agreement. When the complainant pointed out all these discrepancies the office personnel managed to convince the complainant by different ways. It has strongly claimed that on and from 1.11.2012 to 31.3.2013 complainant did not find any progress about the proposed Bounglow and asked the office personnel regarding that matter, who assured that very soon the construction of the Bundglow will be started. But at the time of agreement for sale O.P assured that they will hand over necessary papers abut the said project to the complainant but deliberately failed to hand over the same inspite of several requests of the complainant, for which complainant decided not to purchase the said Bunglow and accordingly complainant requested the O.Ps to refund advance amount of Rs.20,000/- with interest but they flatly refused to refund the said amount and inspite of that convinced the complainant to take the Bunglow from another project ,to which complainant was not agreed upon. Thereafter O.P assured that they will refund the advance amount very soon and refunded Rs.10 lacs on different dates to the complainant. But they did not refund balance amount of Rs.10 lacs as yet . Thereafter complainant sent a legal notice but the O.Ps did not refund the balance amount and declined to pay the same. Thus complainant claimed himself as a consumer and filed this case for refund of Rs.10 lacs with interest @18% p.a from 11.10.2012 till realization of the advance money and compensation Rs.5 lacs ,litigation cost Rs.2500/-.
The O.Ps also filed written version and admitted that agreement for sale dated 11.10.2012 was executed for the property for a consideration of Rs.75 lacs. It has stated that in paragraph 5 of the said agreement it has categorically mentioned regarding the mode of payment of Rs.75 lacs and O.Ps claimed that complainant failed to pay the installment to the O.Ps in time and also stated that complainant only paid Rs.20 lacs out of total consideration money of Rs.75 lacs and after few months decided not to purchase the said property expressing her financial inability to purchase the said property and demanded Rs.20 lacs. It has claimed that necessary development of the land area is going on with full satisfaction of the buyers including the complainant of the said project. It has admitted that said project is very vast for which O.Ps have to face huge financial crisis and they have already refunded Rs.10 lacs out of Rs.20 lacs. It has claimed that complainant visited the project area many a times expressing her full satisfaction regarding progress of the preliminary work. But with ill motive and mal intention stated that project work is not in progress ,which is denied by the O.Ps. It has stated that the O.Ps have no intention to detain the balance amount of Rs.10 lacs and has prayed for dismissal of the instant case.
Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.
Decision with reasons
At the outset it should be mentioned here that in view of section 11(1) of the C.P Act 1986 this complaint case is barred since the total value exceeds more than Rs.20 lacs ,since pecuniary jurisdiction depends on value of goods which include total value of the property i.e Rs.75 lacs and complainant prays for compensation of Rs.5 lacs and cost Rs.25000/-. So, in that part this case is not maintainable on a moment scrutiny.
Apart from that in view of the judgment reported in 2014 (3) CPR at page 76 wherein complainant has admittedly received Rs.10 lacs as per her bank statements i.e on 10.4.2013 Rs.2 lacs,2.5.2013 Rs.4 lacs, 28.6.2013 Rs.2 lacs, and on 8.7.2013 Rs.2 lacs – total comes to Rs.10 lacs. It has also admitted by the complainant in para 9 of the complaint case that complainant decided not to purchase the said Bunglow and requested the O.Ps to refund the advance amount of Rs.20 lacs with interest. Thus the agreement for sale loses its weight. Hon’ble National Commission also observed in the said reported decision that once complainant had claimed refund amount, then she ceased to be a consumer. This case is totally identical.
Thus firstly this bench has no pecuniary jurisdiction in light of the observation made in above. Secondly complainant is not a consumer.
But on behalf of the complainant two decisions have been relied ; one is 2016(2) CPR page 33 NC ,wherein it has mentioned that unscrupulous builders who after taking substantial cost do not perform their part of obligation should not be spared. Another one is reported in 2017(1)CPR 249 NC ,wherein the lady is entitled to withdraw the scheme in the event of delay of completion of the project.
But facts and circumstances of the reported cases of the Hon’ble National Commission reported in 2016(2) CPR 33 as well as 2017 CPR page 249 are altogether different, because herein complainant admittedly requested the O.Ps to refund the amount. So, the reported decision 2014(3) CPR page 76 is very much applicable and complainant is not a consumer. Thus question of deficiency of service does not arise at all.
In this circumstances when this bench has no pecuniary jurisdiction ,we do not want to proceed further in the matter ,since complainant is not a consumer on a view that Agreement for sale dated 11.10.2012 also looses its weight ,because complainant also failed to pay from time to time payment in terms of the agreement for sale as mentioned at page 14. So, complainant failed to prove also that he has paid the installment according to the agreement for sale.
Hence,
Ordered
That the complaint case is dismissed on contest but in the sorry state of affairs we do not like to saddle the complainant by imposing cost in light of the observation made in above. However, complainant is at liberty to recover the remaining amount through Civil Court by filing a money suit ,if otherwise not barred.
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
That the complaint case is dismissed on contest but in the sorry state of affairs we do not like to saddle the complainant by imposing cost in light of the observation made in above. However, complainant is at liberty to recover the remaining amount through Civil Court by filing a money suit ,if otherwise not barred.
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
