DIST. CONSUMER DISPUTES REDRESAL COMMISSION
NORTH 24 Pgs., BARASAT.
C.C. No.536/2017
Date of Filing: Date of Admission: Date of Disposal:
17.10.2017 24.10.2017 01.06.2023
Complainant/s:- | 1.Sri Tapas Kumar Das, S/o. Late. Jagadish Ch. Das. 2. Smt. Sarmistha Sarkar, W/o. Sri Tapas Kr. Das, Kalyangram, Palta, P.O.Bengal Enamel, Dist-24 Pgs(N), Pin-743122. = Vs= |
Opposite Party/s: | Bengal Shelter Housing Development Limited, Represented by its Director, CB 63, Sector-1, Salt Lake City, Kolkata-700064. |
P R E S E N T :- Smt. Sukla Sengupta………………….President
:- Smt. Monisha Shaw …………………. Member.
:- Sri. Abhijit Basu …………………. Member.
JUDGMENT
The petition of complaint is filed by the complainant under Section 12 of the C.P. Act, 1986.
The fact of the case in a nutshell is that the O.P- company is a housing company and joint sector company with West Bengal Housing Board and they do erect multi-storied building over the vacant land and they sell the same to the various intending purchasers. They used to run their business with good reputation in the State of West Bengal.
The complainant No.1 is a govt.service holder and the complainant No.2 is his wife. They are residing within the jurisdiction of this Forum. It is further stated that the complainants intend to purchase a residential flat at Barasat area ‘Sohini II (UMIG) Block-4, Neel Diganta’, under P.S. Barasat, North 24 Pgs within the territorial limit of this Forum. Then the complainants have proposed by the representative of the O.P agreed to purchase / booked the subject flat at a consideration of Rs. 14,99,780/- only. The complainants paid Rs. 51,545/- for application money of the flat including service tax to the O.P on 02.11.2012 against the money receipt issued by the O.P. The complainants again paid Rs. 3,86,531/- including service tax to the O.P towards consideration money on 17.12.2012. Again he paid Rs. 2,31,918/- on 05.06.2013, in total he paid Rs. 6,69,994/- against money receipt issued by the O.P. Subsequently on 05.11.2012
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the O.P issued allotment letter in favour of the complainants and in the said allotment letter the O.P explained the mode of payment in accordance with the completion work of the said flat and accordingly the complainants paid the payment on instalment as application money 25% as well as 15% as 1st instalment money.
It is further stated by the complainants that at the time of booking the flat in question the O.P assured them that they will hand over the flat within 48 months from the date of allotment which has also laid down in the serial 12 of the terms and conditions. But within the stipulated period O.P failed to hand over the flat in question. Then the complainants made contact with the O.P and repeatedly requests to refund the earnest money and on 05.03.2016 the complainants sent a letter to the O.P requesting them to refund the earnest money and in the meantime on 17.03.2016 the O.P replied with a requests that if the complainants agreed then they can transfer their booking from Neel Diganta to Sisirkunja with discount price and in default the O.P will arrange the earnest money within next twelve months. The copy of the letters have been annexed herewith as annexure ‘D’. The complainant agitated repeatedly for refunding of the earnest money. The sent a letter dated 10.05.2017 which is annexed as annexure ‘D’. But the O.P on repeated occasions taking time stating that they will refund the amount but practically they did not refund the same. Complainants sent a letter on 05.09.2017 requesting them to refund the money but the O.P did not sent any reply of the said letter and the letter annexed herewith as annexure ‘F’. It is the allegation of the complainants that the O.P did not develop any single inch of the construction work. So the question of completion the work of the flat does not arise and till date the opposite party neither hand over the possession of the flat nor refund the money and such negligence on the part of the opposite party caused deficiency in service, harassment, mental agony of the complainants.
Hence the complainants prayed before this commission to give a direction to the O.P either to hand over the peaceful possession of the that as per agreement to refund the earnest money of Rs. 6,69,994/- as paid by the complainant.
It is also prayed by the complainants to give direction to the O.P to register the flat in favour of the complainants enhanced with the registration cost paid by the O.P. The complainants further prayed for compensation of Rs. 40,000/- for mental pain, agony, anxiety, harassment and unfair trade practice along with litigation cost of Rs, 20,000/-.
The O.Ps have contested the petition of complaint by filing written version denying all the material allegations leveled against them.
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It is the O.Ps’s case that the case has filed by the complainant is not maintainable in the eye of law. It is alleged by the opposite parties that there was no cause of action for the complainant to file this case and the complainant has filed this case by suppressing the material facts.
It is the case of the opposite party that the O.P is the development company incorporated under the Company’s Act, 1986. They are engaged in providing real estate services of the subscriber at large all over India and also in West Bengal very honestly, sincerely and carefully and they used to maintain the goodwill and prestige in the field of the work.
It is further stated that the opposite party acts as a joint Sector Company with West Bengal Housing Board and together performs planning, development and construction of numerous large and small projects of housing, multistoried core residential and commercial complexes and urban infrastructure in Kolkata and also in other district town of West Bengal. The said opposite party successfully completed several projects such as a tower namely ‘Akansha’ in phase-2, New Town, ‘ Sisirkunja’ at Madhyamgram, ‘Teenkanya’ at New Town, and amusement park ‘Mohorkunja’ market in collaboration with the Kolkata Municipality and it is also provided the details of the future projects of the opposite party such as ‘Alap’ at Chandannagor, ‘Gourikunja’ near Netaji Subhas Airport, ‘Titir’ at Shantiniketan, ‘Krishnokoli’ at Krishnanagar and so on.
It is further stated by the opposite party in their written version that the petitioner of this case being inspected the project site and satisfied with all respects and all relevant papers regarding the building and sanctioned plan and all its common other facilities of the said building and respective flat have expressed her desire to purchase one complete flat and accordingly the complainants made an application for booking of an apartment at the said project being application No. 0827 on 10.10.2012. Upon payment of such application money the O.P provided a booking I.D.
It is further stated that on 05.11.2012 by a letter of allotment the apartment being No. ND/S-II/4/5A (Type-A) at Sohini II (UMIG), Block-4, 5th Floor having an Area- 820 Sq.ft (approx) valued at Rs. 14,99,780/- at ‘Neel Diganta Housing Project was provisionally allotted in favour of the complainants on the basis of application No. 0827 dated 10.10.2012 and further customer ID being No. NDSII/151 had been provided for all future correspondences and payment and the said allotment letter dated 11.10.2010 was in form of an agreement,
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which contained the general terms and conditions for the allotment of the apartment along with the structure for future payments and the said allotment was duly executed by the complainants and the authorized representative of the O.P thereby binding themselves to the said terms of the allotment letter. It is further submitted by the opposite parties that the complainants till date has paid a sum of Rs.6,69,994/- only in different dates and times. But the opposite party always performs his part of duties in respect of the said GTC.
It is alleged by the contending opposite party that the complainants have filed this case with malafide intention for wrongful gain suppressing the material fact.
It is further stated by the opposite parties that the complainant was well aware that ‘FORCE MAJEURE’ of the said GTC it is inter alia provided that none of the parties shall be regarded and as in terms and condition of the said agreement. It is the further case of the opposite party that due to some un-avoidable circumstances which was beyond the control of the opposite party the project Neel Diganta was delayed from time to time which was within the knowledge of the petitioner and to which the complainant was kind enough to adjust and accommodate the opposite parties in completing the project. So the question of getting possession and registration of the flat in question within 48 months does not arise at all.
The opposite party further stated that the complainants prayed for unlawful claim and his case is baseless and modified. Thus the case is liable to be dismissed with exemplary cost.
In view of the above stated facts and circumstances the points for consideration are as follows:-
- Is the case maintainable in its present form and law?
- Have the complainants any cause of action to file this case?
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the O.P?
- Are the complainants entitled to get the relief as prayed for?
- What other relief or reliefs are the complainants entitled to get?
Decision with Reasons
All the points are taken up together for convenience of discussion and to avoid unnecessary repetition.
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From careful perusal of materials on record it appears that the complainants are residing within the territorial jurisdiction of this Forum and the opposite parties are running their business also within the territorial jurisdiction of this Forum. The valuation of this case is also well within the pecuniary jurisdiction of this Forum.
On careful consideration of the position of law in the frame of this case it appears that the cause of action arose on and from the date of parts payment i.e. 02.11.2012 and lastly on 05.09.2017. The complainant filed the instant case on 17.10.2017 which is well within the period of limitation.
Hence in view of discussion made above it can be held by this commission that undoubtedly the instant case is maintainable in the eye of law.
Admittedly, the complainants paid Rs. 51,545/- on 02.11.2012 to the opposite party as application money for purchasing a flat lying in the project of ‘Neel Diganta’ of the opposite parties and they entered into an agreement to that effect. Admittedly, on several occasions admittedly she paid Rs. 6,69,994/- to the opposite parties till 05.09.2017. The O.P failed to hand over the flat to the complainants which they intend to purchase from the opposite party measuring about 820 Sq.ft at a consideration of Rs. 14,99,780/- situated in block -4, Neel Diganta under P.S. Barasat which is a residential flat.
From the content of the written version it appears that admittedly the complainants paid Rs. 6,69,994/- to the O.P as mentioned in annexure ‘A’. But allegedly the opposite party could not be able to hand over the flat to the complainants within stipulated period for which the complainants claimed refund of Rs. 6,69,994/- with interest. So, it can safely be held that the cause of action of this case arose on and from the first payment of application money on 02.11.2012 and lastly 05.09.2017 when the complainants sent a letter to the opposite parties through speed post. So cause of action was there for the complainants to file this case.
Admittedly, the complainants paid Rs. 6,69,994/- to the opposite party (annxure ‘A’ for purchasing a residential a flat constructed by the opposite party in block-4, ‘Neel Diganta’ under this jurisdiction of this Forum and entered into an agreement with the opposite party. When they paid the application money to the opposite party for purchasing the residential flat in question in block-4, ‘Neel Diganta’ project since then the consumer and service provider relationship in between the complainants and the opposite party established beyond all reasonable doubt. Such facts and circumstances of this case indulged this Forum
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to hold the view that the complainants are the consumers and the opposite parties are service provider, in that case let us see whether there was any sort of deficiency in service on the part of the opposite party or not. The opposite parties in their written version and evidence as well as in the supportive documents clearly admitted that the complainants intend to purchase a residential flat in ‘Sohini’ (UMIG) Block-4, ‘Neel Diganta’ under P.S. Barasat within the jurisdiction of this Forum of DCDRC at a consideration of Rs. 14,99,780/-. It is also admitted by the opposite parties in their written version that they received Rs. 6,69,994/- from the complainants on several occasions on and from 02.11.2012. The application money was of Rs. 51,545/- including service tax and they also entered into an agreement with the opposite parties. The opposite parties also admitted in their written version that due to some reason they could not be able to complete the construction work of ‘Neel Diganta’ project within the stipulated period and failed to hand over the complete flat to the complainants within 48 months from the date of agreement of the flat which compelled the complainants to claim and refund of the part consideration money of Rs. 6,69,994/- out of Rs. 14,99,780/-.
From the evidence on record it is palpably clear that the complainants on several occasions requested the opposite party to refund the money of Rs. 6,69,994/- paid by them towards consideration money of the flat in question out of Rs. 14,99,780/-(total consideration). But the O.P denied and neglected the complainants they did not pay any heed to the requests of the complainants which compelled the unfortunate complainants to come before this Forum for getting relief.
So the conduct of the opposite parties proved that they intentionally denied the requests of the complainants and by such manner they neglected their service they failed to hand over the flat in question to the complainants within the stipulated period from which it is proved that they could not be able to provide the service to the complainants as service provider and which is undoubtedly considered as the deficiency in service on their part and they should be liable to compensate for the same. Such conduct of the opposite parties caused harassment, mental pain and agony to the complainants.
In view of the discussion made above this Forum is of view that the opposite parties being the service provider are failed to give the service to the complainants by handing over the flat in question to them within the stipulated period for which they should refund the part consideration of Rs. 6,69,994/- out of total consideration of Rs. 14,99,780/-.So they are bound to refund the amount of Rs. 6,69,994/- to the complainants.
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On the contrary the complainants by adducing evidence could be able to prove their case beyond all reasonable doubt and are entitled to get the relief as prayed for.
In some case succeeds.
The case is properly stamped.
Hence,
it is ordered,
that the case be and the same is allowed on contest against the opposite party with cost of Rs. 5000/-.
The complainants do get the decree as prayed for.
The opposite parties are directed to refund the amount of Rs. 6,69,994/- to the complainants either jointly or severally along with interest at the rate of 9% from the date of filing of this case till realization within 45 days from the date of this order.
The opposite parties are directed to pay either jointly or severally a sum of Rs. 50,000/- to the complainants for harassment, mental pain, agony and unfair trade practice along with litigation cost of Rs. 10,000/- within 45 days from the date of this order.
If the opposite parties failed to comply the decree within the stipulated period as mentioned above the complainant will be at liberty to execute the same as per law.
Let plain copy of this order be given to the parties free of cost as per CPR, 2005.
Dictated & Corrected by me
President
Member Member President
