FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The case of the complainants, in a nutshell, is that, the complainants booked two adjacent flat on the on the 2^nd floor, measuring about 566 sq.ft covered area plus 25% super built up area and 568 sq.ft. covered area plus 25% super built up area respectively at the rate of Rs.6000/- per sq.ft at 4A, Shamsul Huda Road, P.S. – Karaya, Kolkata – 700017, Ward No. 65 carried by the OPs by paying 11,00,000/- for each through several cheques& cash to the OP1 out of total consideration of Rs.42,45000/- for each flat. Two agreement of booking was executed between the parties on 07/07/2012. OP1 was to hand over the said flats to the complainant within a reasonable time not exceeding 15 months from the date of commencing construction. But lapse of 8 years from the date of the agreement OP1 had not started the construction of the said project. Therefore complainants sought to cancel their bookings and demanded full refund of the booking amount of Rs.22,00,000/-.  Thereafter the OP1 handed over two cheques to the petitioner as refund and both the cheque was dishonoured. Complainants have served a legal notice dated 11/02/2021 to the OP1 which is remained unanswered till date. Finding no other option the complainants have compelled to knock the door of this commission.

OP1 has contested the case by filing WV assailing the maintainability of the instant consumer case and also stated that the petition of complaint is harassing, barred by waiver estoppel and acquiescence, barred by limitation and defective by mis-joinder and non-joinder of parties. The case of the OP1 is that due to dispute of the title OP1 could not start the construction of the said project. Further, the complainant cancelled the said Booking Agreement dated 07/07/2012 and take back the paid up money from the OP1 as full and final settlement on 30/12/2020 when they have received the cheques from the OP1. The complainants were requested by the OP1 not to deposit the said cheques in the bank because due to technical problem the account was suspended but the complainants deposited those cheques into the bank and the same were dishonouredand to that effect the complainants have filed two separate criminal cases U/S 138 N.I. Acts against the OP1 vide case No. C-44/2021 and C-45/2021 which are pending before the Ld. 5^Th Judicial Magistrate at Sealdah. Therefore, the instant Complaint Case may be dismissed for ends of justice.

OP2 and OP3 did not contest the consumer complaint despite service of notice. No WV has been filed by the OP2 and OP3 within the statutory period. Thus, the case runs ex parte hearing against the OP2 and OP3.

We have heard the Ld. Advocate for the complainant and have carefully gone through the averments in the complaint, written version filed by the OPs, evidence and documentson the record.

The admitted fact is that, the complainants booked two adjacent flats and entered into an Agreement for Booking with the OPs and paid 11,00.000/- for each flat to the OP1 through cheques on 07/07/2012 Rs.8,00,000/- and Rs.10,00,000/-being Chq No. 112535 drawn on Axis Bank, on 07/09/2012 Rs.3,00,000/- being Chq No 112536 drawn on Axis Bank and Rs.1,00,000/- in cash out of total consideration of Rs.42,45,000/- for each flat. Fact also remains that OP1 failed to start construction work of the said project and subsequently the complainants cancelled the Agreement for Booking and OP1 returned the booking amount to the complainants by issuing two cheques which were dishonoured. On perusal of the documents of record it is found that the Agreement for Booking was executed between the parties on 07/07/2012 and Clause 5 of the said Agreement states:

The Developer shall make its best endeavor to complete the said building and make over possession of the said flat to the Purchasers within 15 months from the date of starting construction of the said building subject to force majeure and subject to the other conditions herein contained.

Ld. Advocate for the complainant alleged that after lapse of 8 years the no construction work has been started by the OP1. In this regard Ld. Advocate for the OP submitted that dispute of the title they could not start the construction work. No material document is annexed with the WV by the OP1. Therefore this submission appears to us as full of ambiguity. It is also alleged by the Ld. Advocate for the complainant that OP1 issued two cheques being Chq No.026162 dated 30/12/2020 for Rs.11,00,000/- drawn on ICICI Bank and Chq NO.228647 dated 30/12/2020 for Rs.11,00,000/- drawn on State Bank Of India and both the cheques were dishonoured. Photocopies of the said cheques reveal that Chq No.026162 has been rejected due to ACCOUNT CLOSED and Chq No.228647 has been rejected due to FUNDS INSUFFICINT. Therefore, submission of the Ld. Advocate for the OP1 that once the Booking Agreement has been cancelled by the complainants and received the full and final settlement amount from the OP1therefore the complainants shall have no right to claim for further relief, has no legs to stand. Further, Ld. Advocate for the OP1 argued that complainants have filed the Criminal cases U/S 138 N.I. Act vide Case No. C-44/2021 and Case No. C-45/2021. No documentary evidence is furnished by the OP1 in support to this contention. On the Contrary the complainants submitted in the Complaint Petition  that they have not filed any other case before any administrative or judicial forums so far the deficiency in service is concerned considering non – delivery of the flat and registration thereof.

In view of the abovementioned facts we opined that the Instant Consumer Case is filed under C. P. Act for Deficiency in Serviceand Unfair Trade Practice on the part of the OP1, therefore, Criminal Cases, if any, are filed by the complainants against the OP1 are completely different cases under different jurisdiction.

In light of the above discussion deficiency in service and unfair trade practice on the part of the OP1is proved and the complainant is entitled get relief/ reliefs. No prayer has been sought for relief/reliefs in the Complaint Petition against the OP2 and OP3.

As such, the case succeeds against the OP1

Hence

ORDERED

That the consumer case be and the same is allowed on contest against the OP1 and dismissed on ex parte against the OP2 and OP3.

OP1 is directed to deliver the flat to the complainants within 45 days from the date of this order failing which 12% interest p.a. shall carry on the booking amount of Rs.22,00,000/- paid by the complainant to the OP1 from the date of the order till its realization .

OP1 is also directed to pay an amount 10,000/- to the complainant as litigation cost.

Copy of the judgement be supplied to the parties as per rules. Judgement be uploaded on the website of this Commission forthwith for perusal of the parties.