HON'BLE MR. SUDIP NIYOGI, PRESIDENT
The fact leading to the instant complaint, in a nutshell is that on an application in the prescribed format by the petitioner one Allotment Letter dated 25/06/2011 was issued in his favour by the OPs for a Flat No. 1803 (4 BR, Duplex) with two car parkings at Tower/Block 2 in Unitech “Harmony” Action Area 3, New Town, Kolkata. The petitioner paid Rs. 14,34,480/- through an account payee Cheque No. 625430 dated 27-06-2011 drawn on Vijaya Bank as part of consideration price of Rs.1,69,25,115/- ( One crore Sixty-Nine lakh Twenty-Five thousand One hundred Fifteen). The petitioner was assured that within 30 days one agreement for sale to be executed. He also undertook to sign the “buyers agreement”. Since then, the petitioner paid to the OP a sum of Rs. 61,09,586/-(Sixty-One Lakh Nine thousand Five hundred Eighty-Six rupees only) towards consideration price. It is alleged by the petitioner that the OPs deliberately avoided executing the agreement for sale. He approached the office of OP No. 2 several times to know as to the date and time about the registration of the deed in respect of the said property. He was assured by OP No. 2 that construction was in full swing and very soon letter of physical allotment of the said flat and car parkings would be issued. OP No. 2 also demanded from the petitioner the balance amount of consideration price along with interest and penalty for delayed payment. However, on 10th February, 2021 petitioner visited the site of the said property and was astonished that the said site was left abandoned by the respondent and no work was done there.
Subsequently, by issuing a notice through his Advocate, the petitioner terminated the said Allotment Letter issued in respect of the flat and car parkings and demanded refund of the said amount of Rs.61,09,586/-(Sixty-One Lakh Nine thousand Five hundred Eighty-Six rupees only) which was paid as part consideration price along with interest at the rate of 18 per cent. The petitioner was told about the financial distress of the OP Company and no refund was made to the petitioner. Hence, the petitioner files the instant complaint seeking several reliefs including refund of the consideration price already paid, damages for unfair trade practice and deficiency in service, compensation and cost of litigation etc.
As the OPs have not appeared to contest this case on receipt of the notice it is issued to them, the instant case has been heard ex parte against them.
During hearing, petitioner files his evidence on affidavit and also the relevant documents, namely, Allotment Letter dated 25/06/2011, the application for flat, cheques showing payment made to the OP and receipts issued by the OPs along with several other correspondences.
Now, the point for consideration is whether the complainant is entitled to relief as prayed for.
Decision with reasons:
We have gone through the materials on record including the evidence on affidavit filed by the complainant in which he narrated his case and also alleged about the unfair trade practice and deficiency in service against the OPs.
From the documents we find the application of the complainant for the flat in question was received at the Office of OP on 25/06/2011. He filed the application along with a post-dated cheque of Rs.14,34,480/- ( Fourteen lakh Thirty-Four thousand Four hundred Eighty Rupees only) which was also received by the OP. Though, no formal agreement for sale was made between the parties the Allotment Letter is found to have been issued on 25/06/2011 by the OPs in the name of the complainant in respect of Flat No.1803, Block 2 at Uniworld City Harmony, Kolkata. Complainant also is found to have filed the documents relating to payment made by him on different dates in the year 2011-2012 and he is found to have paid Rs.61,09,586/-(Sixty-One Lakh Nine thousand Five hundred Eighty-Six rupees only) in total towards price of consideration. We also find several correspondences made between the parties regarding the said property. Ultimately, the flat along with the car parkings were not made ready and handed over to the complainant. Subsequently, complainant terminated the said Allotment Letter dated 25/06/2011 through a notice by his Advocate requesting OP to refund the said amount which was paid as part consideration price along with interest. As OPs failed to comply with the request, complainant filed this case before this Commission.
Complainant prayed along with others for a direction upon OP to refund the amount of Rs.61,09,586/- (Sixty-One Lakh Nine thousand Five hundred Eighty-Six rupees only) along with interest which he paid as part consideration.
Be it noted here, by the Consumer Protection (Amendment) Act, 2019, the jurisdiction of the District Commission was enhanced to Rs.1 crore from earlier which was Rs.20 lakh rupees. However, subsequently, by way of a notification dated 7th February, 2022, a copy of which has been produced by the Ld. Advocate for the complainant, the jurisdiction of the District Commission has been made limited to the amount of Rs.50,00,000/- (Fifty lakh rupees only) (i.e. not exceeding Rs.50,00,000/-). Paragraph No. 6 of the said Notification has clearly stated that the Consumer Complaints filed between 20th July 2020 i.e. the date from which the Consumer Protection Act, 2019 has been made effective and 30th December, 2021 i.e. the date of Notification of the Consumer Protection (Jurisdiction of District Commission, the State Commission and the National Commission) Rules, 2021 shall not be transferred. Here, the instant complaint is found to have been initiated on 21/09/2021 the date which falls between the said two dates as made in the said Paragraph No. 6 of the Notification. Therefore, though in this case, the value of the goods and services is more than 50 lakh rupees, in view of the aforesaid notification it cannot be said that this Commission is without jurisdiction to hear the instant complaint.
Thus, on the basis of the documents and the unchallenged testimonies of the complainant we think the instant complaint is maintainable and the complainant is entitled to get relief in this case.
Accordingly, it is
ORDERED
That the instant complaint be and the same is allowed ex parte against the OPs.
OPs are directed to pay Rs.61,09,586/- (Sixty-One Lakh Nine thousand Five hundred Eighty-Six rupees only) along with interest @ 10 % per annum from the date of filing of this case i.e. 21/09/2021 until full realization.
OPs are also directed to pay Rs.10,000/- ( Ten thousand rupees only) to the complainants towards cost of litigation.
All the OPs are jointly and severally liable to pay the said amount.
OPs are to make payment of the said awarded amount within 60 days from the date of this order. If the instant order is not complied with by the OPs as directed, the complainant is at liberty to proceed in accordance with law.
Dictated and corrected by me.
President
