FINAL ORDER/JUDGMENT

Presented by:

Minakshi Chakraborty,  Presiding Member.

 Brief facts of the case: This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the OP published advertisements in or about the month of March, 2018 for selling multi storied apartments at mouza-Langolpota, Matiagacha, District – North 24 parganas, Pin-700135 and the complainant met  the OP on 30^th April, 2018 and the OP delivered an eye-washing visual aid assured to commence the construction work within 15 days and complete the project within the month of October, 2022 and the complainant having been impressed by the version of the OP booked one bed room flat measuring 350 sq. ft, 3^rd floor in Block-1, Tower no.6 in the said project “Dharitri Icon” at Langolpota, Matiagacha, District – North 24 parganas, Pin-700135 and paid a sum of Rs.78,000/- towards booking amount on 30.04.2018 by cheque no.815174 drawn on State Bank of India, Chandannagar Branch District-Hooghly and thus the complainant entrusted the OP for construction of the building project and subsequently the complainant discovered in the month of August, 2018, that the OP did not commence any construction job on the land and there was even no lay out on the land.  The complainant then decided to take refund of money by cancelling the said booking and the petitioners then demanded refund of the booking amount from the OP, but the OP refused to refund the said amount.  Later the OP forced the complainant to make an application for refund of booking amount on their proforma application on 18.8.2018 on the ground of financial problem without disclosing the deficiency of their non-commencement of the construction work.  Accordingly, the petitioners made such application for refund stating the reason of financial problem and the OP assured the refund of booking amount within a fortnight of making said refund application and it is pertinent to mention that till the middle of December 2019 even filing of this complaint no construction work was started on the said land and the OP then informed that the subject project would not be started and the OP severely harassed the complainant in various manners, and when on assuring only to refund the money very shortly, but ultimately the money has not been refunded to the complainant till now.  By such non-refunding the booking money, the OP created a consumer dispute apart from committing criminal breach of Trust and on making several meetings at the office of the OP and even on telephonic conversations the OP did not pay, but went on assuring to pay the same only and the complainant finally sent a demand notice dated 31.01.2020 to the OP through their Advocate Tapas Kumar Manna by speed post and the OP by sending email dated 13^th March, 2020 agreed to make refund of the amount after deducting GST amount.  The complainant did not agree to such deduction for GST because construction was not started and no bipartite agreement was entered upon by and between the parties.  But the OP did not pay the same.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 78000/- with interest 12% p.a. to refund the booking money and to pay a sum of Rs. 100000/- for damages and to pay a sum of Rs.30,000/- for litigation cost.

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

Argument highlighted by the ld. Lawyers of the parties

Complainants have filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant shall have to be taken into consideration for disposal of the instant proceeding.

            Heard argument of complainant at length. In course of argument ld. Lawyer of complainant has given emphasis on evidence and documents produced by the them.

From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainants are  consumers?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite part?
4. Whether the complainants are entitled to get relief?

DECISION WITH REASONS

Issue no.1:

      In the light of the discussion hereinabove and from the materials on record, it transpires that the complainants are Consumers as provided by the spirit of Section 2 (7) of the Consumer Protection Act, 2019.The point is thus answered in the affirmative.  

Issue no.2:

                        Both the complainants and the opposite parties are residents/having their office addresses within the district of Hooghly and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.

Issue nos. 3 & 4:

Both the issues are taken up simultaneously for the sake of convenience.

In brief the contention of the petitioners are to deposit of Rs.78000/ on 30/4/18 towards booking of1BHK flat measuring 350 sq ft , 3^rd floor in block -1, tower no. 6 in Dharitri icon project but ultimately on their frustration as the construction job on the land nor even there was any lay out of the land the complainants decided to take refund of the said money by cancelling the said booking in the month of August 2018 .Accordingly being pressurized by the O.P the petitioners had to make an application for refund of booking amount on their proforma application on 18/8/2018 on the ground of financial problem without disclosing the deficiency of their non commencement-of the construction work. Thereafter inspite of repeated demands to get refund of the aforesaid money demand notice dated 31/1/20 was sent to the opposite party on the basis of which by sending e mail dated 13/3/2020the O.P agreed to refund the amount after deducting GST and other charges which gives rise to the instant application for refund of money and it is more so as the promised project did not find any light till march 2020, which according to the petitioners was likely to commence within 15 days and was expected to be completed within October 2022.

Be it mentioned herein that th O.P has not appeared in the present proceeding though it appears from order no. 3 dated 20/6/2022 that notice was sent to the OP and the TRC confirmed the same on 13/6/22 which gives this commission to hear the instant proceeding ex parte.

In support of their contention the petitioners have deposited photo copies of some documents, namely, aadhaar cards of both the petitioners as well as the money receipts through which the amount of Rs .78000/ was deposited on 30/4/2018 of Drhritri Infraventure Pvt. Ltd. In support of their contentions the petitioners have submitted the copy of the application for refund of money dated 18/8/18. The said application HAS BEEN DULY SIGNED BY BOTH THE PETITIONERS AND NO WHERE THERE APPEARS THE CONDITIONS which find place in para 12 of the petition about deduction of GST amount but the fact remains that when the construction was not started and there appears no bipartite agreement between the parties the considerable time on the part of the OP to refund the money does not appear to have any reason therefor.

Accordingly the petitioners appear to have reasonable ground to get refund of the booking amount and for causing delay on the part of the OP giving rise to mental agony of the petitioners.

Both the issues re disposed of accordingly.

Hence

ordered

that the complaint case no. 115 of 2022 be and the same is decreed ex parte against Dharitri Infraventure Pvt. Ltd.

The petitioners do get refund of the booking amount of Rs. 78000/ and litigation cost of rs.10000/ alongwith cost of Rs.10000/ for mental agony and harassment.

The OP do pay the aforesaid quantum of money to the petitioners with 45 days from date failing which the petitioners be at liberty to take recourse to law.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

The Final Order will be available in the following website www.confonet.nic.in.