Order No. 28
Today is fixed for delivery of judgment/final order.
Final order is ready. It is sealed, signed and delivered in open Forum/Commission.
It is ordered that,
that the complaint case be and the same is allowed against the OPs with cost of Rs.15,000/-.
The OPs jointly or severally are directed to deliver the possession of the flat and execute and register the deed of conveyance infavour of complainant and issue completion certificate upon taking the residue consideration amount within 60 days from the date of this order.
That the OPs jointly or severally are directed to pay compensation to the tune of Rs.1,00,000/- only for unfair trade practice and mental agony of complainant within 60 days from the date of this order.
Alternatively the OPs jointly or severally are directed to refund the sum of Rs4,38,466/- only (i.e. Rs.463,466/- - Rs.25,000/-), paid by complainant with 10% interest per annum w.e.f. 27.02.2017 till the date of realization within 60 days from the date of this order.
That the OPs jointly or severally are directed to pay compensation to the tune of Rs.1,00,000/- for unfair trade practice and mental agony caused to complainant within 60 days from the date of this order.
That the OPs jointly or severally are directed to pay Rs.15,000/- only as litigation cost within the stipulated period of 60 days.
That the complainant is at liberty to put the order into execution if the orders are not complied with within 60 days from the date of this order.
Let a copy of the order be supplied free of cost to the parties concerned.
The final order will also be available in the following website www.confonet.nic.in.
Smt. Sangita Paul, Member
This is a case filed by Mr. Ishaneshwar Ghosh, S/O Shri Krishna Chandra Ghosh of Burdwan – 713 426against Usashi Realstates Pvt. Ltd. and the Director of the said company with a prayer for a direction upon the OPs to handover possession of the flat and execute and register the deed of conveyance in favour of complainant, issue the completion certificate to the complainant and receive the rest of the consideration amount or to refund the sum of Rs.4,38,466/- (out of Rs.4,63,466/- - Rs.25,000/-) which was paid by complainant as signing amount along with 18% interest p.a. till the date of making actual payment to pay Rs.3,00,000/- as compensation for mental agony and unfair trade practice and to pay Rs.50,000/- towards litigation cost.
OP No.1 is Usashi Realstates Pvt. Ltd. is a partnership firm incorporated under the provisions of the Companies Act, 1956 having its registered office under Lake Town P.S., Kolkata-700 048.-
OP No.2 is the Director Usashi Realstates Pvt. Ltd., having its office at Lake Town, Kolkata-700 048.
Complainant by filing this case states that he desired to purchase a new flat for his residential purpose. Being attracted by the lucrative advertisement, he approached the opposite parties for purchasing the same. The flat which was supposed to be booked by him was a 3 BHK flat measuring about 728 Sq. ft. The flat which was going to be sold was Rs.2160 /- per Sq. ft. He was going to book the flat which was situated in the 6th floor of the Building, Tower B4. The apartment was going to be built in the South-East open corner plot at “Kings Town” at Vill-Jiragacha, Post Office – Hatishala, P.S. – Kashipur, Kolkata – 700 135. Complainant also deposited a sum of Rs.50,000/- + Rs.3,700/- while submitting the application form for provisional allotment on 27th February, 2017.
In terms of the agreement for sale complainant paid a sum of Rs.4,63,466/- only in subsequent three phases to the opposite parties and the opposite parties accepted the said payments. The agreement for sale has been lost from the custody of complainant. Complainant requested the OP to submit the same to complainant, but the OPs did not submit.
Complainant paid about 25% of the entire consideration amount. Complainant visited the site and discovered to his utmost surprise that not a single brick has been fixed at Tower B4 of” Kings Town”. 22 months have been expired, still no development has been made. Complainant was totally disappointed and wanted refund of the sum of Rs.4,63,466/- only. The OPs sent 3 post dated cheques being No:827239 of Rs.132201/0 only, Cheque No:827240 of Rs.1,50,000/- only and Cheque No:827242 of Rs.1,50,000/- only drawn on Yes Bank, Lake Town Branch. Complainant requested the OP to send the money through NEFT, but the OPs did not. As a result, complainant deposited 3 post dated cheques which were returned with the endorsement, in sufficient fund.
As the OPs did not sent the money through NEFT, complainant failed to receive the same. Complainant did not get the copy of agreement for sale, which was lost from his custody. The OPs did not sent him as per requests of complainant. Meanwhile, the OPs transferred a sum of Rs.25,000/- only in the Bank A/C of the complainant. On August, 2019 complainant visited the project site, (Tower B4) and clicked some photographs. There was no sign of construction work. That the complainant is a consumer as per Section 2(1)(d) of the C.P. Act, 1986. That the cause of action arose from the date of application. The Ld. Forum has pecuniary jurisdiction to entertain this case.
Hence, complainant prays for directing the OPs to hand over the physical possession of the flat and execute and register the deed of conveyance, in favour of the complainant, issue completion certificates and receive the residue consideration money or refund the sum of Rs.4,38,466/- out of Rs.4,63,466/- along with interest 18% per annum till the date of making final payment.
In the written version, OPs state that the instant consumer case is not maintainable in its present form or in law. The instant case is speculative, malafide, harassing and is bad in law. Complainant has no cause of action to file this instant suit.
The OP has extended full support to complainant from time to time till cessation of agreement by virtue of a letter dated 2.1.2019. The OP also states that the instant complaint lacks subject matter materialistic facts.
The allegations made in against the complainant are completely false and frivolous and are as such denied. The OPs also state that all the documents along with annexures are concocted story subject to interpretation of law. The statements made by the complainants against the OPs are completely denied by the OPs. Several matters fall under the purview of performance of contractual obligations which are beyond the concern of the Ld. Commission. The OPs have no intension to harass the complainant. The allegations made in the complaint petition are fascinating story without any basis, it has no factual aspect and hereby denied.
OPs state that the day on which complainant applied for cancellation of agreement for sale, complainant ceases to become a consumer. Therefore, the plea of the complainant for refunding the amount of Rs.438466/- cannot be entertained under any circumstances.
OP prays for rejecting the prayer of complainant for giving compensation by the OPs.
Notice was sent to the OPs. OPs appeared on 9.1.2020 and filed written version. OPs did not participate in argument. They prayed for treating his W/V as evidence. Complainant filed BNA on 23.03.2021. No BNA was filed by the OPs. Finally argument was heard on 20.05.2022 and we proceeded for giving judgement.
Points of Consideration
- Is the complainant a consumer?
- Are the OPs guilty of deficiency in service and unfair trade practice?
03.Is the complainant entitled to get relief as prayed for?
Decision with Reasons
- On perusal of records and document, it appears that the complainant was willing to purchase a flat under progress. The Unit name of the project was Usashi Realstate situated at “Kings Town” Vill-Jiragacha, P.O.-Hatishala, P.S. – Kashipur, Kolkata=700 135. Complainant applied for a 3 BHK flat measuring about 728 Sq. ft. and cost of the flat was determined Rs.2160/- per Sq. ft. The proposed flat was in the 6th floor of the building. It is to be noted that complainant deposited a sum of Rs.50,000/- and also deposited Rs.3700/- while submitting the application form for provisional allotment on 27.02.2017. Altogether, complainant paid Rs.4,63,466/- only in terms of the agreement for sale and the opposite parties accepted the said payments. Copies of the Bank Statements show payment made by the complainant and money receipts were issued by the OPs in connection with the aforesaid payment. The cost of the flat was @ Rs.15,72,480/- only. According, to the payment receipt annexed, it appears that complainant made payment of about 25% of the entire consideration money. The OPs in their written version also admitted that the complainant made payment of Rs.4,63,466/- only. The OPs did not oppose the statement of payment, made by the complainant. As the complainant made part payment of the entire consideration money, then complainant is a consumer, under Section 2(7) of the Consumer Protection Act, 2019. So, the first point is settled in favour of complainant.
- The complainant booked the flat for residential purpose and paid almost 25% of the total consideration amount. Complainant paid Rs.4,63,466/- only. The complainant paid 1/4th of the total consideration money. To his utter surprise the complainant discovered that not a single brick has been fixed. There was no construction of tower B4.. Agricultural work was going on. Complainant made several communications. But the OPs did not care to answer. No communication was made by the OPs even after expiry of 22 months from the date of application. There was no development at that site. After visiting the site, complainant was totally disappointed. The OPs have taken money from complainant, it was their duty to inform the complainant about the development of the project. As there was no progress of the project, it is duty of the OPs to refund the amount with interest but the OPs failed to do so. It appears that the OPs deliberately failed to work in terms of the agreement for sale and have failed to hand over the possession of the subject flat. Complainant wrote letter for refund of money but the OPs hardly paid any heed to complainant’s request. OPs received the letter dated 2.1.2019, but did not act accordingly. Again on 4.4.2019, complainant wrote letter for refund but the OPs remained silent. Afterwards, OPs sent 3 cheques, which were bounced due to insufficient fund. Complainant on 30.11.2019 gave the detailed Bank Statement for fund transfer. But no fund was transferred to complainant. In the terms and conditions, it was stated that the OPs would make full endeavour to provide possession by 40 months from the date of execution of agreement. From the date of allotment, that is from 27.02.2017, 60 months i.e. 5-years have passed, but not a single construction work has been initiated. Hence, complainant states that the OPs have deliberately failed to work in terms of the agreement for sale and have failed to deliver possession of the flat to the complainant. Whatever is being done by the OPs is a glaring instance of unfair trade practice. As the OPs failed and neglected to provide promised service, it constitutes severe unfair trade practice and deficiency in service. That the OPs in full conscience are practicing trade unfairly. Hence, the second point is settled in favour of the complainant.
- Complainant booked a flat at Kings Town, Newtown. The proposed flat is in the 6th floor of the building, Tower B4. That address is Village – Jiragacha, P.O.-Hatishala, P.S.-Kanship;ur, Kolkata-700 135. The OPs have collected money from complainant giving a false hopes that the flat would be constructed. Complainant, believed in the words of the OPs gave Rs.463466/- only from time to time. It is evident from the money receipt filed by the complainant. The story of construction of flat was nothing but a fabricating story. Nothing was constructed. The intention of the OPs were malafide. It was nothing but a means of collecting money from ignorant people and use it for their own purpose. After visiting the spot, complainant was disappointed and lost hope of getting a new flat. Complainant wrote a letter dated 2.1.2019 requesting them to cancel the deed and to refund Rs.4,63,466/- which was paid by the complainant. Afterwards, the OPs sent 3 post dated cheques amounting to Rs.1,32,201/-, Rs.1,50,000/- and Rs.1,50,000/-, all drawn on YES Bank but three cheques were dishonoured. It can be detected from the Bank Statement. The activities of the OPs increased mental agony and pain. The OPs used the money of complainant. The refund of money by the OPs depends on their sweet will, leaving the complainant in anxiety. Complainant was harassed by the OPs several times. As the cheques were dishonoured, complainant is entitled to the reliefs as prayed for.
In the result, complainant succeeds.
Hence, it is,
ORDERED
that the complaint case be and the same is allowed against the OPs with cost of Rs.15,000/-.
The OPs jointly or severally are directed to deliver the possession of the flat and execute and register the deed of conveyance in favour of complainant and issue completion certificate upon taking the residue consideration amount within 60 days from the date of this order.
That the OPs jointly or severally are directed to pay compensation to the tune of Rs.1,00,000/- only for unfair trade practice and mental agony of complainant within 60 days from the date of this order.
Alternatively the OPs jointly or severally are directed to refund the sum of Rs4,38,466/- only (i.e. Rs.4,63,466/- - Rs.25,000/-), paid by complainant with 10% interest per annum w.e.f. 27.02.2017 till the date of realization within 60 days from the date of this order.
That the OPs jointly or severally are directed to pay compensation to the tune of Rs.1,00,000/- for unfair trade practice and mental agony caused to complainant within 60 days from the date of this order.
That the OPs jointly or severally are directed to pay Rs.15,000/- only as litigation cost within the stipulated period of 60 days.
That the complainant is at liberty to put the order into execution if the orders are not complied with within 60 days from the date of this order.
Let a copy of the order be supplied free of cost to the parties concerned.
The final order will also be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
(Sangita Paul)
Member
