JUDGEMENT

          Complainant Rabin Bhattacharya by filing this complaint has submitted that complainant with an intention to purchase a flat entered into a Sale Agreement on 15.04.2011 with the op and op agreed to handover the flat measuring about 300 Sq. Ft. super built area on the ground floor consisting of two bed rooms, kitchen, bath and privy together with undivided proportioned share of land  at the rate Rs. 1,700/- per square feet and a total consideration value of flat Rs. 5,10,000/- at the premises No. 15C, Black Quire Square, Kolkata – 700006 and delivery will be made within 24 months from the date of aforesaid agreement and op has taken from the complainant of Rs. 1,00,000/- on 15.04.2011 and on 20.05.2011 Rs. 3,00,000/- in cash as earnest money or advance for flat and complainant waited for three years to get delivery of flat and found that no construction work has been started till date by the op.

          So, complainant asked the op in terms of Sales Agreement to return the entire amount of money with bank interest but op has denied to make payment at the moment.  But subsequently complainant was surprised and shocked to receive a letter dated 02.07.2014 wherein op has falsely stated that he returned Rs. 32,000/- on various date such as dated 20.01.2012, 10.05.2014 & 10.06.2014.  But complainant categorically stated that he has not received single paisa from op out of the total amount of Rs. 4,00,000/-.

          Practically the entire conduct of the op tantamounts to unfair trade practice and deficiency in service for which the complainant filed this complaint before CA&FBP, Kolkata North RO and said authority called both the parties for redressal.  But the same failed and on 01.08.2014 vide Memo No. 507/KN/CA&FBP suggested the complainant for lodging complaint before the appropriate legal Forum for redressal  and accordingly this complaint was filed by the complainant for redressal.

          On the other hand op by filing written statement submitted that no doubt complainant entered into an Agreement for Sale with the op on 15.04.2012 and the present complaint was filed in the year 2014.  So, same is barred by limitation.  It is submitted that due to objection raised by local people, op no.1 failed to construct the building and to start any construction and for which op no.1 approached the complainant to accept the amount and complainant expressed that he is ready to access, but due to financial stringency op took for sometime.

          Moreover a Civil Suit has been filed by the op nos.2 to 4 against the op no.1 before the City Civil Court, Calcutta and as per order of the Ld. City Civil Court passed in 1425/2011 status quo is being maintained.  But due to injunction order, no construction work can be started for which op is willing to refund the same and prayed for passing such order.

                                                      Decision with reasons

          On proper consideration of the complaint and written version and also hearing the Ld. Lawyers of both the parties and further considering the evidence of the op, it is found that op has admitted that he received Rs. 1,00,000/- from the complainant on the basis of said Agreement and for some legal complications, the construction work could not be done and as per contract, op no.1 ignored the liability to pay any interest.  But now he is willing to pay Rs. 4,00,000/- and it is asserted by the op that he has already paid Rs. 32,000/- to the complainant and claimed that complainant is entitled to Rs. 3,68,000/- out of total of Rs. 4,00,000/-.

          But further considering the entire materials on record, op has failed to prove by any cogent document that he already paid Rs. 32,000/-.  So such sort of assertion on the part of the op that he paid Rs. 32,000/- is false and fabricated and without any foundation.  But admitted position is that op has appeared that he received of Rs. 4,00,000/- and is willing to refund that money.  So, invariably complainant is entitled to get back of Rs. 4,00,000/- and also interest over the same in view of the fact.  Op has failed to handover the flat, though he received cash money of Rs. 4,00,000/- as per Agreement, may be in the Agreement, there is a clause of giving of amount when the flat has not been handed over, then invariably as per provision of law, complainant is entitled to get back banking interest over the said amount of Rs. 4,00,000/- and that amount was received by the op on 15.04.2011 and 20.05.2011 and since then the amount has been invested by the op no.1 for his business purpose.  He has enjoyed the profit of that capital, he has invested somehow therefore he has got interest and when complainant has not got any fruitful result for payment of such Agreement, invariably complainant is entitled to get compensation and interest over the said amount and in view of the above circumstances, we are convinced to hold that this op has deceived the complainant in so many manners and nowadays in Kolkata area many developers are deceiving customer-cum-consumers in such a manner and in the present case it is proved that op has admitted that he received the same but tried to convince that Rs. 32,000/- has been paid.  But it is false plea.  On the ground that there is no such document.

          So, complainant’s allegation is that op adopted unfair trade practice is well proved.  No doubt complainant is deceived by the op no.1 and fact remains that complainant is entitled to get back of Rs. 4,00,000/- along with interest  at the rate 9 percentp.a. over the same w.e.f. 20.05.2011 till the full payment of the entire amount to the complainant by the op no.1.

          Further for adopting unfair trade practice and for deceiving the complainant in such a manner, complainant is entitled to get penal damages of Rs. 50,000/- from the op no.1.

          Hence, it is

                                                               ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against op no.1 and same is allowed exparte against the other ops but without any cost.

          Op no.1 is hereby directed to refund and pay a sum of Rs. 4,00,000/-(received as advance booking money by the op from the complainant) and also interest 9 percentp.a. over the same w.e.f. 20.05.2011 and till full payment of the said amount.

          Op no.1 is also directed to pay a penal damages of Rs. 50,000/- to the complainant for causing harassment, financial loss and also for adopting unfair trade practice and to deceive the complainant in such a manner even after existence of such Agreement to Sale dated 15.04.2011.

          Op no.1 is directed to satisfy the entire decretal dues within one month from the date of this order failing which for disobeyance of the Forum’s order and also for non-compliance of the Forum’s order, op shall be imposed penalty and fine and he shall have to pay penal interest  at the rate Rs. 100/- per day till full satisfaction of the decree.

          Prayer for installment as submitted by the op is rejected on the ground since 2011 he has not paid any amount and harassed the complainant in so many manner and when it is a summary procedural code, then invariably op no.1 has enjoyed the entire amount for last four years and also enjoyed the interest over the said amount.  So, there is no question of giving any relief for payment of the decretal dues by installment and if this procedure is followed by Forum, then invariably the consumer shall be harassed further by the Forum.