Order No. 26 / dated 26/03/2013.
This is a case u/s.12 of the C.P. Act, 1986.
Brief facts are that the complainant had applied on 15-02-2007 for allotment of HIG-B type flat at Lake View Housing Complex, Howrah with the OP, WBHB floated by them. Accordingly, the complainant deposited a sum of Rs.1 lakh with the application as application money. The OP/Housing Board provided a printed allotment conditions with from wherein, availability of all basic formalities was mentioned. The complainant was allotted Flat No.B/114/1/2 and covered car parking space No.H4/CP-9 vide OP-s allotment Letter No.1267/LV/HIG/WBHB/GQ dated 25-04-2008. According to complainant, the OP asked to deposit a sum of Rs.16,64,400/- being the balance full price of the Flat within 2(two) months from the date of issue of the said allotment letter. It is also stated by the complainant that, vide the said letter the OP informed him that if the amount was not deposited within 6 (six) months, the allotment would automatically be cancelled without any reference and the deposited amount will be refunded without any interest and refund will be made after deduction of service charges as per general terms and conditions.
It is further stated by the complainant that he could not be able to deposit the balance amount within the stipulated time and therefore, he requested the OP Housing Board vide his letter dated 26-11-2008 to refund the application money since he did not receive any response towards extension of time from the OP/Housing Board. But the OP did not pay any heed. In such a situation the complainant had to suffer harassment and approached to the various authorities including the C.M., Govt. of West Bengal vide its letter dated 24-08-2009 and also sought information before the RTI vide its letter dated 04-08-2009 respectively. It is the specific case of the complainant that the OP/Housing Board vide its letter No.2710/W.B. dated 19-11-2009 sent a cheque bearing No.023823 dated 21-01-2009 for Rs.6,780/- at SBI, Patiala, Lucknow after deduction of Rs.93,220/- as per terms of refund under Clause 5.4 of the General terms and conditions of the Housing Board.
Being aggrieved, the complainant sent legal notice dated 15-04-2010 and requested the OP for remittance of Rs.90,000/- after deduction of Rs.10,000/- of the application money out of total amount of Rs.1 lakh being deposited as application money to them, but which was denied to make refund by the OP/Housing Board. Hence, this case.
The OP/Housing Board have contested the case by filing written version wherein they denied and disputed the entire allegation as made out in the petition of complaint, contending, inter alia, that the case is not maintainable either in law or in facts and does not come under the purview of the Consumer Protection Act, 1986 as amended.
It is stated by the OP/Housing Board that Hon-ble National Commission and also Hon-ble State Commission, West Bengal, in its judgment decided that relief regarding refund of money cannot be treated as consumer dispute and also not to be adjudicated within the scope of C.P. Act, 1986. It is also stated that the complainant applied for refund of the deposited amount beyond six month i.e. on 26-11-2008 from the date of issuance of allotment letter dated on 25-04-2008 and also denied any such letter for extension of time was received by them. It is further stated that as per Clause 5.4 of the OP/Housing Board, the refund of application money of the complainant has been made and after deduction of 10 percentage of of application money along with penal interest at the rate of 15 percentage of p.a. on Rs.16,64,400/- i.e. for 4(four) months the complainant had been refunded of Rs.6,780/- i.e. (Rs.1,00,000/- minus (Rs.83,220/- + Rs.10,000/- =) Rs.93,220/-) only against the application money of the complainant.
The OP made the submission that the claim of the complainant is not proper and not according to the Clause as per terms and conditions for sale of flats of the Housing Board and thus the complainant is not entitled to get relief as sought for.
Points for Determination
- Whether the complainant is a consumer under the OP?
- Whether the P.O.C. is maintainable?
- Is there is any deficiency on the part of the OP?
- Whether the complainant is entitled to get relief as prayed for?
Decision with Reasons
All points are taken up together for the sake of convenience and brevity.
It is not in dispute that the complainant had applied before the OP/Housing Board for allotment of HIG-B type flat at Lake View Housing Complex, Howrah vide application dated 15-12-2007 al;ong with a sum of Rs.1,00,000/- as application money.
It is also true that the complainant was provisionally allotted flat No.B/H4//1/2 and covered car parking space No.H4/CP-9 vide allotment letter dated 1267/LV/HIG/WBHB/GQ dated 25-04-2008 and was asked to deposit Rs.16,64,400/- being the balance full price of the flat within two months from the date of issuance of the allotment letter. In the said letter it was also mentioned that if the amount was not deposited within the stipulated period, the allotment would be automatically cancelled without any further reference and the deposited money will be refunded without any interest and further there will be deduction of service charges as per general terms and conditions of the OP/Housing Board.
In its P.O.C., the complainant stated that he could not deposit the above balance amount within the stipulated period and, therefore, requested before the OP/Housing Board vide its letter dated 26-11-2008 to make refund of his application money since his request for extension of one more months i.e. upto 24-11-2008 vide his letter dated 20-10-2008 was not accepted by the OP/Housing Board.
The main contention of the complainant is that the OP/Housing Board illegally deducted a sum of Rs.93,220/- in terms of refund Clause 5.4 of the General Terms and Conditions and vide its letter No.2710/HB dated 19-11-2009 and sent a cheque bearing No.023823 dated 21-01-2009 of Rs.6,780/- directly to his Bank Account after deduction from his application money of Rs.1,00,000/- which is tantamount to deficiency in service on the part of the OP/Housing Board.
We have gone through the details of the case and carefully considered the submissions and perused the documents on record. Considering the above facts and circumstances, it can be said though the complainant sent one letter dated 20-10-2008 for extension of one month i.e. upto 24-11-2008 but it is already delayed about 6(six) months, since the allotment letter was issued on 25-04-2008 in his favour wherein it was specifically mentioned that the balance due money i.e. 16,64,400/- of the flat with covered car parking space was to be paid within 2(two) months from the date of issuance of allotment letter which he fails to comply with the direction of the OP/Housing Board in due course of time. Vide the allotment-cum-demand letter dated 25-04-2008 the complainant was asked by the OP to pay Rs.16,64,400/- within 2(two) months. However, the complainant fails to deposit the balance full price of the allotted flat along with car parking space and it will be open to the OP/Housing Board to take action in accordance with terms and conditions of the allotment as stated in the letter dated 25-04-2008. Still after a delay of about 6(six) months, instead of making the payments, before the OP, the complainant through its letter dated 20-10-2008 asking for more time is nothing but deliberate and calculated abuse of the beneficial provision of the C.P. Act, 1986. The complainant himself became instrumental to the delay and also liable to pay penal interest which was to be paid within 2(two) months of 25-04-2008 when the letter of allotment was issued. Since it is already delayed to act from the side of the complainant to seek for extension of time after expiry of stipulated period and also now he cannot take the plea that only 10 percentage of of the application money to be deducted in spite of knowing everything and was fully aware about the terms of the OP/Housing Board. Therefore, the Clause 5.4 of the OP Housing Board is applicable.
In the facts and circumstances of the case we do not find any deficiency of service on the part of the OP.
In the result, the case fails.
Hence,
Ordered
That C.C. No.320 of 2010 is dismissed on contest but without cost.
Let copies be supplied to the parties as per rules.
