Date of Filing: 03.9.2019

Date of Disposal: 10.01.2020

          The Complainant is present in person.

Today is fixed for argument. We have heard the argument in full. Judgment is passed in course of this day.

This Complaint is filed by the Complainant under Section 12 of the CP Act, 1986 alleging deficiency in service as well as unfair trade practice against the Op as the Op did not take any step to refund the balance amount as paid by him for purchasing the flat towards part consideration amount till filing of this Complaint.

            The brief fact of the case of the Complainant is that he booked 1BHK Flat in Dharitri Universia Project on 18.04.2017 which is situated in Rajarhat Bhagawanpur, South 24 Pgs by making payment of Rs. 70,000/- towards the booking amount. After making payment of the said amount an ID was provided to the intending purchaser. Subsequently, the Op was pleased to cancel the booking on 14.05.2018 by making promise to the Complainant that the Op will refund the booking amount within six months from the said date.

            The allegation of the Complainant is that till filing of this Complaint though the Op has refunded a sum of Rs. 15,000/- in his Bank Account, but the balance amount of Rs. 55,000/- has not yet been refunded to him. On several occasions, the Complainant west to the office of the Op on each and every occasion and assurance were given on false pretext. As the Op did not refund the balance amount of Rs. 55,000/-, having no alternative, the Complainant has approached before this Ld. Forum by filing this Complaint praying for direction upon the Op for making refund of the amount as paid by him along with compensation to the tune of Rs. 20,000/- due to unnecessary harassment, mental agony and pain.

            After admission of this Complaint, notice was issued upon the Op through Speed Post with AD. Inspite of receipt of the notice, the Op chose not to appear before this Ld. Forum to contest the Complaint either orally or by filing written version. As the statutory period has over for filing written version in view of the C.P. Act, this Ld. Forum was pleased to pass an order on 01.11.2019 that the Complaint will run ex parte against the Op. Time was given to the Complainant for adducing evidence. By filing a petition, the Complainant has prayed for adoption of the petition of Complaint as his evidence. Upon perusal of the said prayer we were of the view that as the petition of Complaint was filed by the Complainant supported by affidavit, hence there is no bar to adopt the same as his evidence.

            We have carefully perused the content of the petition of Complaint and the documents as annexed by the Complainant at the time of filing of this Complaint. Today the Complainant has also produced the original documents to tally with the photocopies. After comparing the same, the original document is returned to the Complainant.  From the pleadings it is clear to us that admittedly the Complainant paid a sum of Rs. 70,000/- to the Op for purchasing a 1BHK flat from the Op, after making payment of the said amount. Subsequently, the Op had cancelled the said booking and also promised to refund the paid amount to the Complainant. But the documents speaks that out of the paid amount of Rs. 70,000/-, the Op had refunded a sum of Rs. 15,000/- to the Complainant through his Bank Account. The Op did not take any step to refund the balance amount of Rs. 55,000/- to the Complainant till date. Therefore it is crystal clear to us that though the Complainant has prayed for refund of Rs. 70,000/- as paid by him from the Op, as in the mean time the Op had refunded a sum of Rs. 15,000/- to him, at this juncture the Complainant is entitled to get refund of the 55,000/- only from the Op towards the booking amount. It is stated by the Complainant that on several occasions the Complainant visited the site of the Op for getting back the refund and on each and every occasion false assurance were given to him that the entire amount will be paid within a very few days, but no fruitful result has yet been yielded from the end of the Op.

In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of M/s. Singla Builders & Promoters Limited vs Aman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’

The abovementioned Ruling can be applicable in the case in hand as in the instant complaint inspite of receipt of notices and their appearance, the OPs chose not to contest the complaint by filing written version. Therefore in view of the said judgment the allegations as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations.

            It is true that inspite of receipt of the amount of Rs. 70,000/- from the Complainant for 1BHK flat towards the booking amount, as the Op did not take any step either to make construction of the questioned flat or to refund of the amount to the Complainant, such inaction of the Op can easily be termed as deficiency in service as well as unfair trade practice within the purview of the C.P. Act, 1986.

            It is also true that as the Op has miserably filed to redress his grievance by making payment of the paid booking amount to the Complainant till filing of this Complaint and for the instant proceeding, the Complainant has incurred some expenditure, hence in our considered view, the Op is also under the obligation to make payment of litigation cost to the Complainant.

            Going by the foregoing discussion, hence it is ordered that the Consumer Complaint being no. CC 82/2019 is allowed ex parte against the Op with cost.

            The Op shall refund the balance booking amount of Rs. 55,000/- to the Complainant along with interest @ 10% per annum from the date of making payment of the said amount till the date of realization in the form of compensation within 45 days from the date of passing of this Judgment.

            The Op is further directed to make payment of Rs. 500/- to the Complainant towards litigation cost within 45 days from the date of this Judgment in default, the Complainant will be at liberty to put the entire order into Execution as per Provision of Law.

             Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.

       Dictated & Corrected by

[Hon’ble MRS. Silpi Majumder]

                  MEMBER