DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 04/2014
Date of Filing: Date of Admission Date of Disposal:
08.01.2014 13.01.2014 26.12.2014
PETITIONER = Vs. = O.Ps.
Md. Anwaruddin 1. Deputy Secretary
S/o. Lt. Sk. Bilayet Ali M & M Unit, KMDA
of 33B, Topsia Road, Bidhannagar, P.S.- Bidhannagar,
P.S.- Tiljala, Kolkata-700039. Kolkata-700091.
2. Assistant Controller & Finance &
Accounts
M & M Unit, KMDA
Unnayan Bhavan, Bidhannagar,
P.S.- Bidhannagar, Kol-91.
3. The Branch Manager
Axix Bank, Survey Park Branch
P.S.- Survey Park, Kol-75.
J U D G E M E N T
Facts of the case, in short, is that the complainant is a senior citizen of 73 years and retired Group-A officer of Central Government. The complainant has been suffering from cardiac problem and his wife is a senior citizen of 69 years, suffering from acute diabetic, nerve and various old aged ailments, which causes her almost in bed ridden.
Complainant stated that complainant applied for a HIG category flat under EKADP Project of Kolkata Metropolitan Development Authority (KMDA) along with a bank draft of Rs 1, 50, 000/- only on 15.05.2012, through Axis Bank, Survey Park Branch i.e. the OP No-3 herein above as per KMDA’s rules and regulations mentioned in the brochure made for this project.
Complainant further stated that the complainant received a registered letter dated 17.09.2012 along with terms and conditions from the Deputy
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Secretary, M & M Unit, KMDA, where from he came to know that he has been allotted of HIG flat, being no GD/32/1, Block no-GD along with a Garage under EKADP by the KMDA.
Complainant also stated that on 30.10.2012, the complainant wrote a letter to the Deputy Secretary, M & M Unit, KMDA, requesting him for extension of time for payment of first installment against his aforesaid allotted flat beyond the schedule date for the same fixed by the KMDA and that was received and acknowledged by the KMDA on the same day by hand. Considering the request of the complainant, KMDA send a letter, dated 01.11.2012 to the complainant granting extension of time up to 15.11.2012 for payment of first installment.
Thereafter, on 18.02.2013, again Deputy Secretary, M & M Unit, KMDA send a letter to the complainant, asking him to inform the office regarding installment, otherwise, his allotment will be treated as cancelled after necessary formalities as per brochure.
Complainant stated that on 24.04.2013, he further wrote a letter to the Deputy Secretary, M & M Unit, KMDA requesting him to refund his application money of Rs 1, 50, 000/- , after necessary deduction as per clause (5) of the allotment letter dated 17.09.2012, as in-spite of best efforts, the complainant could not pay the installment as schedule by the KMDA.
Complainant further stated that again the complainant received a letter dated 23.05.2013 through regd. Post, wherein Deputy Secretary, M & M Unit, KMDA requested the complainant to attend a hearing with relevant papers and/or documents. After receiving the above letter dated 23.05.2013, the complainant attended the hearing with all relevant papers and/or documents before the Deputy Secretary, M & M Unit, KMDA and again requested him to refund the application money after necessary deductions as per clause (5) of the allotment letter.
Complainant also stated on 12.09.2013 and again on 06.12.2013 the complainant sends two demand notices through his Ld. Advocate to the Deputy Secretary, M & M Unit, KMDA demanded to refund of his application money which were received and acknowledged by the office of KMDA, but till date he has not been paid a single paisa, for which the complainant and his family members have been suffering a lot including mental, financial and physical losses. Hence his case.
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OP No-1 and 2 have contested the case by filing written version, but OP No-3 did not turn up to contest the case.
OP No-1 and 2 stated that the OPs have arranged several meetings by issuing hearing notice upon the complainant as the complainant did not respond against the letter of the OPs dated 18.02.2013 wherein the OPs specifically requested to inform their office regarding the payment matter and the OPs are further stated specifically in the said letter that if he fails to inform the payment matter to the OPs then the complainant’s allotment would be treated as cancelled but in-spite of that the complainant did not respond and so he was served a hearing notice from the office of the OPs vide Memo No 01/KMDA/MM/EK/HIG(3)/F-18/12 dated 01.04.2013 and requested the complainant who attend the office of the OP NO-1 on 10.04.2013 at 11 AM but the complainant did not attend the hearing.
OP NO-1 and 2 also stated OPs again issued a second hearing notice through its office vide Memo No 160/KMDA/MM/EK/HIG(3)/F-18/12 dated 15.04.2013 and again requested the complainant to attend the chamber of the OP No-1 on 14.05.2013 at 11 AM but again the complainant did not attend the hearing.
OP No-1 and 2 further stated that finally on third time the OPs issued another hearing notice through its office vide Memo No 275/KMDA/MM.EK/HIG(3)/F-18/12 dated 23.05.2013 and again asked the complainant to attend the hearing on 07.06.2013 at 12:30 PM in the chamber of the OP No-1 and this time the complainant the hearing and submitted his deposition stating that he could not deposit the installment premium against the allotted flat and also requested to refund his application money after deduction.
OP No-1 and 2 also stated the complainant has cancelled the matter before the Ld. Forum that as per the prayer of the complainant and allotment of the flat in favour of the complainant has been cancelled by the OPs and a cancellation letter has been issued in favour of the complainant vide Memo No 635/KMDA/MM/EK/HIG (3)/F-18/12 dated 09.09.2013 stating that the complainant’s allotted flat duly cancelled due to the non-submission of installment premium and accordingly a “Refund Advice” has issued in favour of the complainant.
The OP No-1 and 2 further stated that the complainant have malafide made this complainant case against the OP No-1 and 2 with intention to get some
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speculative gain as because the complainant has no case as the OPs had refund the application money of the complainant prior of the institution of this instant complaint case by issuing “Refund Advice” vide office Memo No 644/KMDA/MM/EK/HIG (3)/F-18/12 dated 11.09.2013 after deducting 2 % from the cost of the flat as per the norms.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
Complainant has submitted affidavit inn chief and OP NO-1 and 2 also filed affidavit in chief. We have perused the affidavit in chief of both the parties. Admittedly complainant applied HIG category flat under EK ADP project of Kolkata metropolitan Authority (KMDA) along with a ban draft of Rs 1, 50, 000/- through Axis Bank which will be seen from Annexure-1 filed by the complainant. OP No-1 and 2 send a registered letter dated 17.09.2012 along with the terms and conditions which will be seen from Annexure-II. It appears from the said letter complainant was allotted HIG flat No-GD/32/1 Block No-GD measuring 883.51 sq. ft +Garage EKADP @ 3900.00 sq. ft through lottery held on 16.06.2012 amounting to total of Rs 36, 34,592/- in favour of the complainant for residential accommodation. The payment schedule was-
Particulars | Amount (Rs) |
Installment Plan | Approximate Area 883.51 Sq. ft |
Provisional premium of the apartment including Garage: | Rs 36, 34, 592/- |
1st installment: (less application money) within 30 days from the date of allotment. | Rs 7, 11, 422/- |
2) 2nd Installment :- (Within 90 days from the date of allotment) | Rs 17, 22, 845/- |
3) (i) 3rd installment:- (within 120 days from the date of allotment) (ii) +1 % service charge (iii) + cost of Garage | Rs 8, 61, 422/- Rs 34, 457/- Rs 10, 84, 782/- |
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Cost of Garage:-
Block | Flat No. | Garage Area | Cost Of Garage | Mode of Payment |
| | 145.31 sq. ft | Rs 1, 88, 903/- | Within 120 days from the date of allotment. |
OP No-1 and 2 alleged that complainant failed to pay the installment and hence this allotment was cancelled. Admittedly OP No-1 and 2 gave complainant and extension of time but even then complainant failed to pay the installment. Hence complainant prayed for relief of refund of Rs 1, 20, 000/- being the application money after necessary deduction as per clause 5 of the allotment letter dated 17.09.2012 along with an interest @ 18 % per annum on and from 16.11.2012 till realization form the OPs, compensation of RS 2, 00, 000/- and litigation cost of Rs 10, 00, 000/-.
On behalf of the OP NO-1 and 2 Ld. Lawyer submitted that they issued a cancellation letter to the complainant which complainant denied. Further Ld. Lawyer submitted they issued a Refund advice to the complainant but complainant denied receiving of such letter.
Ld Lawyer for the complainant submitted that in cancellation letter dated 09.09.2013 filed by the OPs as Annexure 7 with their e/chief, they have cancelled the offer letter due to nonpayment of the premium which is the ingredient of cancellation of allotment order as per clause 5 of the allotment letter dated 17.09.2012 and there is no question of attracting clause 6 of the said letter. OP No-1 and 2 filed certain letters to show that they cancelled the offer of allotment due to nonpayment of installment by the complainant and a refund advice of Rs 77, 308/- to the complainant dated 11.09.2013 but there is no supporting documents to show that then complainant had received those letters. Ld Lawyer for the OP No-1 and 2 relied on the decision 2014(112) CPJ 705(NC) “wherein it has been held that once responded claimed refund amount, then ceases to the Consumer”. In this case, OP No-1 and 2 failed to prove that complainant received the money paid by him for allotment of the flat. So, this decision is not applicable in this case. OP No-3 did not appear to contest the case. It is written in the letter dated 11.09.2013 that the payment of application money will be debited from their account No 912020014643372 and a copy was allegedly given to the complainant. OP No-1 and 2 failed to show that the complainant received the money from the OP No-3. OP No-1 and 2 cannot escape their liability to pay the required money to the complainant only by filing some correspondence before this Forum. In view of that complainant is entitled to get the required money from the OP No-1 and 2.
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Hence
It is ordered,
that the complaint and same be allowed on contest against the OP No-1 and 2 and exparte OP No-3.
OP No-1 and 2 is directed to refund the money to the complainant after deducting 20 % of the deposited amount within one month from the date of this order, failing which an interest of Rs 18 % per annum will run till the final payment.
OP No-1and 2 is also directed to pay compensation of Rs 5, 000/- and Rs 2,000/- as litigation cost to the complainant within one month from the date of this order, failing which OPs shall have to pay sum of Rs 100/- per days from the date of this order till it realization, as punitive damages, which shall be deposited by the OPs in this State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member President
Dictated & Corrected by me.
