Dt. of filing- 17/06/2019

Dt. of Judgement- 20/07/2019

Mrs. Sashi Kala Basu, Hon’ble President.

          This complaint is  filed under Section 12 of the Consumer Protection Act  by complainants namely:- (1) Somnath Chakraborty and (2) Smt. Tapati  Chakraborty against the Opposite Parties  (referred to as  OPs hereinafter ) namely  (1) Hahnemann Housing  and Development Pvt. Ltd. (2) Shri Karunamoy Sinha (3) Dilip Kumar Ghosh (4) Ashoke Kumar Paul  and (5) Shri Kalidas  Mukherjee  (  2 to 5  being the Directors  of OP No.1) alleging deficiency in service on the part of the OPs.

          Case of the complainant  in short is that  OP No.1 is the Promoter/Developer of  “Santiban-VI” a development project proposed  to be constructed at a site  bearing Plot Nos.  P-1737 and P-1868 respectively measuring 3 cottahs each. To purchase the said two plots, complainant paid the booking amount of Rs.  45,000/- only  out of total consideration amount of Rs. 2,25,000/- each to the OP  on 08.12.2011. OP acknowledged receiving of the amount by issuing the  proper receipts. On 15.10.2012 parties entered into two separate agreements for sale in respect of the said two plots bearing no. P-1737 and P-1868 whereby OP  agreed  to develop the said plots by constructing  metal  road along with side drains and other  necessary works pertaining to  the basic  infrastructure at a total  consideration   amount of Rs. 4,50,000/- which was to be  paid  by the complainants in  36 instalments. Complainants have paid the entire consideration amount but no development work has been started by the OP towards the said project. Ultimately, complainant  requested the OP to return the amount along with interest. OPs thereafter  made a payment of Rs.  49,500/- in the bank account of  complainant no.2   on  28.12.2015 and Rs. 61,114/- in the account of complainant no.1  on 29.12.2015 towards  interest. But thereafter despite  assurance by the OPs, no payment has been made to the complainant.  Notice was also sent but all in vain. So, the present complaint has been filed praying for  directing the OPs  to refund the entire consideration  money  of Rs. 4,50,000/- along with interest @ 25%  P.A.  as per  Clause – 6  of the agreement  dated 05.10.2012 after adjusting Rs.49,500/-  and Rs.61,114/- , to pay a sum of Rs.  5,00,000/-  as compensation  money with interest @ 12%  P.A.  and to pay litigation cost of Rs. 1,00,000/-.

          Complainants have filed the agreements entered into between the parties, money receipts, copy of notice  dated 26. 11.2018  and the copy of  SMS  exchanged  between the parties.

          On perusal of the record it appears inspite of the service of notice, no step was taken by the OPs and thus  vide order dated  05.09.2019,  case was directed   to be proceeded  exparte.

          So, only point requires determination  is :

1.  Whether the complainants are entitled to the relief as prayed for?

Decision with reasons

          Complainants have claimed that they booked  two separate plots  being Plot No. P- 1337  and  P-1868 at a total consideration  of RS. 2,25,000/- each. They paid the booking amount and thereafter  separate agreements have also  entered into between the parties. Complainants have paid the entire consideration money. In order to substantiate their claim, complainants have filed the agreements and also the receipts showing the payment of entire consideration money. It is  claimed  by the  complainant that  in spite of  the payment  of the entire consideration,  plots as agreed has not been handed over  to the complainants and no development  work  has been carried by the OP towards the development  of the project  as agreed in the agreement. Since before this Forum there is absolutely  no  contrary material,  on consideration of the agreement and the money receipts  filed in this case, complainants  are entitled  to the refund  of the amount after adjusting   the amount of Rs. 49,500/-  and 61,114/ returned by the OPs  in the bank accounts of the complainants on 28.12.2015  and 29.12.,2015 respectively. It further appears from the agreement   that as per  terms stated   in the Clause -  6 of the  agreement  “ In case of withdrawal  from the scheme  after  full payment, receipt amount will be  refunded in full  along with  25%  appreciation   for one and half year  after  the schedule  period ”. Complainant has thus claimed   for the said amount  of Rs. 25%  as per  Clause -6. But on a careful perusal  of Clause – 12  of the agreement  it further appears  that it is  also  mentioned  that  “ In case of withdrawal  from the scheme   after full instalment payments, receipted amount  will be refunded  along with  12% p.a. appreciation after the schedule period”. So, there are conflicting percentage of appreciation stated in the agreement without out specifying name of party liable  to pay, in case of withdrawal. In such a situation,  it would be appropriate to direct the OPs to pay the consideration amount paid by the complainants after adjusting the amount paid on 28.12.2015 and 29. 12.2015 along with  the interest  @ 15% p.a.  in the form of compensation.

Hence,

                        Ordered

          CC/ 286/2019  is allowed  exparte.  Opposite Parties  are directed to pay Rs.3,39,386/- along with interest  on the said sum  @ 15% p.a.,  from the date of   last payment of instalment  by the complainant i.e.  18.11.2014   to till  this date   within two months from the  date of this order failing which  entire sum  shall carry interest @ 15%  till  realisation. Opposite Parties are further directed  to pay  litigation  cost  of Rs.  10,000/-  within the aforesaid period of two months.