Order-15.
Date-29/12/2017.
Smt. Sangita Paul, member.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case in short is that Complainant was introduced with one SaikatPramanik, Marketing Executive, GCJ International Pvt. Ltd., now GCJ Infrastructure LLP on the month of February, 2014 and booked a residential flat measuring about 1001 Sq. ft. (Super built up area) being apartment No. C 703, on the 7th floor, B Block, No. C and a covered car parking space for a total consideration of Rs.36,12,260/-. On 18th February, 2014, Complainant paid an amount of Rs.7,22,652/- through NEFT/RT GS from ICICI Bank, Chennai. It was the advance payment against the said booking. After payment, the OPs issued a provisional allotment letter dated 19th February, 2014. Thereafter, Complainant made another payment of Rs.83,978/- and Rs.1,00,000/- on 26.02.2014 and 27.02.2014 respectively through NEFT/RTGS from the ICICI Bank, Chennai. Complainant paid a total amount of Rs.18,06,630/-. In spite of several reminders the OPs deliberately neglected to execute the agreement for sale till the date of filing the instant complaint in respect of the flat on the pretext that the said Project will start very soon. The statement tantamounts to gross deficiency in service and unfair trade practice. Subsequently, on 9th February, 2016 after a lapse of nearly 24 months from the date of booking of the residential apartment, Complainant received a phone call from Bhupinder Singh Arora, the OP No. 3 who passed on the call to OP No. 2, Mr. Ashok Kumar jaiswal who explained that the Project Vivaanta, Kolkata is not going to take place due to major difficulty and the entire amount of Rs.18,06,630/- would be refunded on or before 15th May, 2016. Complainant cancelled the booking on 10th February, 2016 and wanted refund of Rs.18.06.630/-, the booking money. Complainant states that even after cancellation of the said booking, OPs failed to return the booking amount in spite of several reminders through email on 1st May, 2016, Complainant received a mail from OP -3 that booking amount will be refunded after 180 days of cancellation of booking. After three months of the said mail and after much persuasion OPs transferred Rs.2,00,000/- on 30.07.2016 in the Complainant’s Bank A/c, thereafter, transferred Rs.3,00,000/- on 01.12.2016. But after the said part payment, the balance amount of Rs. 10,06,630/- was not paid by the OPs till date. In spite of receipt of several requests and reminders, the OPs failed to make payment of the earnest money of Rs.10,06,630/-. Due to unfair trade practice and deficiency in service, committed by the OP, Complainant is undergoing mental agony and hardship from huge financial loss. The OPs intend not to refund complainant’s earnest money amounting to Rs.10,06,630/- or execution of agreement for sale. The OPs violate the principles of natural justice which tantamount to deficiency in service and unfair trade practice, Complainant states that settlement of the said claim should be disposed of in favour of complainant and the compensation for mental agony and harassment caused by such mala fide acts of the OP and litigation expensesconnected herewith should be made to them. Intentional negligence and ignorance lead to unfair trade practice and deficiency in service. Being aggrieved by the acts of the OPs, Complainant is constrained to file this application unless, prayer is granted, Complainant shall suffer irreparable loss. Hence complainant prays for issuing show cause notice upon the OPs. Complainant also prays for awarding a sum of Rs.12,36,630/- along with 18 percent interest till the realization of the said amount which includes claim, compensation for harassment and litigation expenses caused due to negligence and deficiency in service by the OPs.
In the written version OPs state that application is harassive, speculative, vexatious and made with an intention of illegal gain. Complainant has suppressed material facts. The court has no jurisdiction to entertain the Complainant. The OPs also refunded a sum of Rs.8,00,000/- to Complainants. OPs state that Complainant made a false and fabricated story against the OPs as such are denied. The OPs deny and dispute all the allegations mentioned therein. There is no intentional latches / negligence on the part of the OPs. The OPs already paid a sum of Rs.8,00,000/- only. The OPs state and submit that after cancellation of the booking and receiving the consideration amount, the OP state that Complainant is no more consumer in the eyes of law. Hence, Complainant does not come under the purview of Consumer Protection Act, 1986. All the clauses in the complaint petitions are absolutely wrong and are emphatically denied.
As a result, Complainant is not entitled to any relief whatsoever and is not entitled to any claim and recover anything from the answering OP in the light of what is stated above. The Complaint itself is not maintainable and is liable to be dismissal summarily OPs again pray for dismissal of the complaint with exemplary cost.
Decision with Reasons
We have gone through the documents on record , i.e. complaint petition, written version, Evidence-in-Chief, money receipts, provisional allotment letter, photocopy of letters addressed to the OPs and emails addressed to Complainant and other materials on record.
From the documents on record, it is revealed that Complainant booked the subject flat at Ankurhati, Howrah under Vivaanta Project by paying an amount of Rs.18,06,530/- on different dates in the year 2014. In the written version and written notes of arguments, OPs admitted of getting the said amount. After payment of Rs.7,22,652/- the OPs issued a final allotment letter on 19.02.2014. On 9th February, 2016, OP-3 and his associates informed over phone, that it was not possible for them to start the project at that site. The OPs, on the other hand also admitted that Complainant paid Rs.18,06,630/-. After taking a hefty amount, they expressed their inability to start the project at the site of Ankurhati, Howrah. As a result, Complainant is entitled to get back the amount of Rs.18,06,630/-. Complainant was told on 1st May, 2016 that the booking amount will be paid within 180 days of cancellation. The OPs on 30.07.2016 transferred Rs.2,00,000/-, on 01.09.2016 Rs.3,00,000/- and on 01.12.2016 Rs.3,00,00/- were transferred to Complainant’s account . Altogether, Complainant got refund of Rs.8,00,000/- and still Rs.10,06,630/- is outstanding. It is to be admitted that OPs have cancelled the Project. The full consideration amount was Rs.36,12,260/-. Complainant paid 50 percent of the consideration. OPs due to their own fault, which is best known to them, could not start the project. Rather, they cancelled then project. It is a clear case of breach of contract. They promised to give Complainant a beautiful and comfortable flat. Lastly they failed to keep the contract and gave back Rs.8,00,000/-. Complainant did not get the full paid amount. As the O.Ps. are not starting the project, they must pay back the full amount of Rs.18,06,630/-. Complainant is deprived of getting proper service from the O.Ps.. Hence they are entitled to get compensation along with Rs.10,06,630/- for O.Ps. unfair trade practice. On 10/02/2016 they themselves told that they would arrange for the amount. Complainant demanded full amount by April-2016. On 27/02/2016, complainant again requested for refund.On 13/06/2016 complainant sent another letter for refund. On 25/07/2016 complainant wanted that he would move for criminal proceedings. In the mean time on 15/04/2016, 28/04/2016 and 01/05/2016 complainant wrote to O.Ps. for full refund. On 02/05/2016 complainant again warned that he would go to consumer forum. O.Ps. failed all the committed dates. On 23/05/2016 another reminder was sent. On 30/05/2016, 09/06/2016, 12/07/2016 complainant demanded for refund. On 01/08/2016 complainant wanted the remaining amount. On 11/08/2016 complainant warned of legal proceedings against the O.Ps. On 02/09/2016 he thanked for getting back Rs.3,00,000/-. He demanded for outstanding amount. On 19/09/2016, 17/10/2016, 01/12/2016, 26/12/2016 he wrote for refund of the outstanding amount. On 30/06/2017, 14/02/2017, 20/03/2017, 19/04/2017 complainant wrote letters, but he is yet to get the outstanding amount of Rs.10,06,630/-. The O.Ps. are enjoying money but do not care to refund or inform a date of refund. As per Section-11 of the C. P. Act, 1986 the District Forum cannot entertain complaints exceeding Rs.20,00,000/-. But in this case, the claim of complainant is Rs.10,06,630/- along with compensation and other costs which do not exceed the pecuniary jurisdiction of District Forum. It is not the value of goods and service, but the main consideration is the amount claimed. In view of the facts, the case is maintainable in District Forum and District Forum has jurisdiction to entertain this case. Complainant is entitled to get award for O.P’s deficiency in service. For the O.Ps. duped complainant the dream of having a sweet house is shattered.
In result, the case succeeds.
Hence,
Ordered
The complaint be and the same is allowed on contest against the O.Ps with a cost of Rs.10,000/-.
O.Ps. are jointly and severally directed to pay Rs.10,06,630/- to the complainant together with interest at the rate of 9 percent p.a. w.e.f. 27/02/2014 till its realization within one month from the date of this order.
O.Ps. are jointly and severally are directed to pay compensation of Rs.20,000/- to the complainant for causing harassment and mental pain and agony and for unfair trade practice and also for deficiency in service within the aforesaid stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.-27 of the C.P. Act.
