In brief the complainant’s case is that complainant intended to purchase one self-contained flat measuring of 1524 Sq. Ft. super built area being flat No.-2, 9^th floor at Tower E-2 at the premises of Eden City coming at Maheshtala along with a car parking space in a covered garage  and according to and as per advertisement of the op, complainant applied for by filing up Prelaunch Application Form by issuing a cheque of Rs.51,000/- being No.767419 dated 13.10.2007 drawn on Vijaya Bank, Brabourne Road Branch, Kolkata-700001 in favour of the op for the flat only.  Thereafter for car parking space covered garage along with the flat was fixed Rs.1,50,000/-.  After receipt of the said cheque Rs.51,000/-, op issued a provisional receipt which was subsequently followed by a final receipt of Rs.51,000/-.

          Complainant further states that on 24.12.2007 the op no.1 issued another allotment letter in the name of the complainant to his official address at C/o Tea Spares (India) 13, Brabourne Road, Kolkata-700001 wherein it had been disclosed that the complainant has been allotted a 3 bed room flat being apartment No. 902 situated on the 9^th floor of the Tower E-2 having saleable area 1524 Sq. Ft. corresponding to super built area of 1158 sq. ft. along with the right to use one covered car parking space at the Eden City, Maheshtala. 

          Subsequently, the complainant on receipt of the letter, sent one letter dated 16.01.2008 addressed to the director of the op no.1 seeking some clarifications in respect of the discrepancy of the saleable area and its measurement with regard to both E type and D Type flats but the op no.1 or any its officers did not care to answer and the said letter was unattended and unanswered by the op.  So, the complainant further issued a notice on 07.04.2008 seeking full particular and detail in respect of the said flat.  But in the mean time complainant was served with another copy of General Terms and Conditions of the allotment letter which changed earlier terms and conditions of the allotment letters but for variance and different/contrary to the earlier terms, the complainant wrote a letter dated 19.06.2008 to the Director of the op no.-1 stating and pointing out such differences between the two forms of the General Terms and Conditions.  But that was also unattended and unanswered in similar way.

          So, the complainant submits that complainant was ready and willing to complete his part of the obligation and complainant thereafter under a covering letter dated 24.06.2008 made further payment of Rs.4,55,788/- through a cheque being No. 801367 dated 24.06.2008 drawn on Vijaya Bank, Brabourne Road Branch, Kolkata-700001.  The op received the said cheque on 26.06.2008 but op no.1 without bothering to respond the required clarifications as sought for by the complainant demanded installment prices by serving Demand letters one after another.  But all on a sudden the op no.1 under the cover of a letter dated 08.01.2010 refunded a sum of Rs. 4,32,071/- being the application amount through a cheque dated 07.01.2010 along with allotment and 50% of covered car parking, club membership and caution deposit after deduction of Rs.74,717/- and unilaterally cancelled the allotment made to the complainant.  But fact remains the said letter was sent by op no.1 in March 2010 and was received by the complainant on 10.03.2010.  Further, in the cheque date is noted January 2010.  On receipt of that complainant wrote a letter to the op raising all discrepancies and agitated his grievances but that was not at all bothered by the op no.1 and though op is a registered Promoters.  It is the further allegation of the complainant that he made a total payment of Rs.5,06,788/- to the op no.1but the op no.1 refunded a cheque of Rs. 4,32,071/- to the complainant after deduction of Rs.74,717/- wrongfully and so the complainant demanded refund of the entire amount paid to the op no.1 along with interest and the complainant by writing a letter dated 15.03.2010 addressed to the Director of the op no.1 demanded the return of the entire amount along with interest and strongly disputed the deduction of Rs.74,717/- and no doubt such sort of act on the part of the op is illegal and it is nothing but unfair trade practices on the part of the op no.1 for which complainant prayed for refund of Rs.74,717 and also interest @ 18% p.a. and compensation etc.

          On the other hand the op no.1 by filing written version submitted that out of total 2204 number of flats, at the present 1233 have already been sold in similar terms and conditions and there is allotment made by the op no.1 to each of the flat owners.  Alongwith allotment letter terms and conditions of the allotment has been recorded in a document known as General Terms and Conditions and the said terms and conditions was incorporated by reference in the letter of allotment.

          It is admitted fact that the complainant has applied for allotment of a flat and a covered Car Parking by way of submission of application form and complainant was thereafter allotted a flat of E-2 902 by allotment letter dated 24.12.2007.

          But the complainant further failed to adhere to the Terms and Conditions of the allotment and complainant was required to make payment of a sum of Rs.4,23,288/-, on allotment i.e. on 07.02.2008 for that flat but the complainant paid the said amount after delay of 144 days in spite of his allotment of flat and payments were ultimately made by cheque dated 24.06.2008which was encashed on 30.06.2008.  In the above circumstances, the complainant as because failed to comply the terms and conditions for which ultimately as per terms and condition of the agreement the allotment was cancelled no doubt but it is equally applicable for the complainant also and accordingly a sum of Rs.74,717/- for a flat No. E-2 was deducted and balance amount of Rs.4,32,071/- was refunded to the complainant by the op no.1 and the termination letter along with the cheque had been sent to the complainant and complainant  encashed the cheque and as appropriated the said proceeds, so thereafter complainant had no scope to agitate the matter again.  In view of the above circumstances, it is submitted by the op that, the complainant is bound by the terms and conditions of the General Terms and Conditions and in accordance to the Clause-8 of General Terms and Conditions, op is/was entitled realize such amount which had been deducted.  The particular clause which authorized the op no.1to make deductions that has not been disputed by the complainant at the time of entering into the agreement.  So the question is the clarification made by the op does not against the letter of the complainant.

          Anyhow the complainant with some ill motive and without any legal act has filed this complaint for which the present complaint should be dismissed.

                                            Decision with reasons

          On in depth study of the complaint and the written version and on overall assessments of argument as advanced by the Ld. Lawyer of both the parties and particularly the document and the disputed letter dated 09.11.2009 issued by the op (Annexure-F 35) it is found that no doubt by that letter op informed the complainant that booking of apartment of the complainant in respect of E-2 902 had already been cancelled as per Clause-8 of the General Terms and Conditions of the Project.  Complainant failed to pay an amount of Rs.3,99,288/- towards first and second installment of the said apartment.  But as because delay was made 15% interest was charged for non-payment of the said amount and for which a sum of Rs.45,420/- was deducted from the total amount.  Moreover, service charge @ 15% was also deducted and the service charge of Rs.43,679/- was deducted plus interest i.e. Rs.45,420/-.  Accordingly total deduction was made by the op.  After proper consideration of the agreement and term, the Clause-8, it is found that complainant failed to pay the installment in time and that was paid after lapse of six months.  So, op no.1 charged interest and subsequent payment was also not paid by the complainant for which that was cancelled.

          If we consider the agreement and the terms and conditions, we can say without any hesitant that it is the duty of both the parties to be guided by the terms and conditions and one cannot go outside the statutory terms and conditions of the contract and undisputed fact is that complainant knowing fully well executed that agreement.  Then the terms and the conditions are binding upon the complainant equally applicable and binding upon the op.  Fact remains in the complaint this matter has not been whispered.

          After considering the material documents filed by the op we have gathered that those documents were executed by the complainant and also by the op.  Then we are convinced to hold that we (Forum) cannot go outside the terms and conditions of the agreement as per settled principle of Law.

          Considering that fact we are convinced to hold that the complainant no doubt was not able to pay the amount as per installment term but fact remains when he sent the entire amount, op encashed it.  If actually op had any grievance about the payment in that case it was the duty of the op to refuse the cheque but that had not been done and that is the business tactics of the promoters to swallow the money whether it is belated stage or it is coming from any undecided purchase having no valid contract and this is the nature and practice of the business of the promoters which is no doubt un-merchantable and in this case op had adopted that procedure and received the cheque, encahsed the cheque, thereafter subsequently cancelled the same but nowhere op has alleged that the said flat has not yet been sold.  It is suppression of fact if it would be disclosed by the op it would be found that the present flat which was allotted to the complainant had been sold at a higher rate by depriving the complainant.   If any promoter has sold it higher rate after cancellation of the flat which already allotted to anyone in that case developer and promoter shall have to prove that he has lost some benefit or interest or profit due to over act of complainant or the so called purchaser whose allotment had been cancelled.  But in this regard op is silent.  Question is from how many source a promoter shall have to snatch money from the so called intended purchasers.  If such sort of conduct of the op as found in this case is not properly controlled, in that case one after another allotment shall be cancelled in respect of the intended purchasers in respect of one flat and by adopting such way the promoters and developers shall have to sell flats at highest rate from whom op has realized huge money and present case is one example in respect of such an act on the part of op and no doubt it is an unfair trade practice on the part of the op.  Undisputed fact is that op deducted no doubt Rs.74,717/- out of total payment of Rs.5,06,788/-.  So it is clear that deduction was made by the op claiming that it was as per Agreement Clause-8 of Agreement and Contract it was deducted. 

In this context, this Forum has adopted a judicious approach in respect of deduction of amount out of total deposit in case of cancellation of allotment.  It is specifically mentioned that if allotment is cancelled only 5% can be deducted as service charge when the said flat has been sold at higher rate to third party because from one flat the promoter or developer shall not have to earn money from different sources because owner shall be the one so profit must be from one purchasers but not from several persons after cancelling one after another allotment.  Adopting that principle we find that at best op ought to have deducted a sum of Rs.25,340/- out of total of Rs.5,06,788/- but it is found that particularly adopting unfair trade practice, op deducted Rs.74,717/- that is completely illegal and unfair trade practice.  Another factor is that when the allotment was cancelled and when complainant’s portion of money was refunded i.e. Rs.4,32,071/- then over that amount some interest ought to have been given to the complainant but that has not been done by the op.  However, it is found in this case that the op a merchant of Real Estate Seller collected money from the intended purchasers, thereafter constructed the building and he sold it then capital of the ops business came from the intended purchasers and when he has utilized money of the intended purchasers then it is the duty of the op to refund such money as deposited by the intended purchasers in case where such intended purchasers allotment has been cancelled.  But why that has not been adopted.  No doubt in the particular case op has adopted unfair trade practices for which the op is liable to refund the sum of Rs.49,377/- out of deducted amount of Rs.74,717/- and shall have also to pay interest over the total amount of Rs.5,06,788/- because it was utilized, invested by the op for running his Real Estate Business and for which op shall have to pay a sum of Rs.25,000/- as compensation and by that way op shall have to pay/refund Rs.49,377/- and compensation of Rs.25,000/- to the complainant along with litigation cost as awarded. 

Thus the complaint succeeds.

Hence, it is

                                          ORDERED

That the complaint be and the same is allowed on contest against the contesting ops with cost of Rs.6,000/-.

Ops are liable to pay a sum of Rs.49,377/- to the complainant and also a sum of Rs.25,000/- as compensation for harassing the complainant in such a fashion and also for enjoying the interest of the total payment of amount (Rs.5,06,788/-) by the complainant for some years and also for causing mental pain agony to the complainant by the ops.

For adopting unfair trade practice by the op, op shall have to pay a sum of Rs.10,000/- to the State Consumer Welfare Fund in this Forum to control the op from adopting any further unfair trade practice in future in dealing with Real Estate Business.

Ops are jointly and severally directed to comply this order within one month from the date of this order and to satisfy the decree failing which for each day’s delay punitive damages @ Rs.200/- shall be assessed till full satisfaction of the decree and for which also penal measures may be taken against them by issuing warrant against them for implementation of this order.