Consumer Complaint No 105 of 2015
Date of filing: 17.4.2015 Date of disposal: 16.09.2016
Complainant: Sri Dhirendranath Sen, S/o. Late Atul Chandra Sen, resident of School Para, Bhiringhi, PO: Durgapur – 713 213, District: Burdwan.
-V E R S U S-
Opposite Party: 1. India Metros Realty Pvt. Ltd., having its Office 18, Bibhuti Bhusan Sarani, City Centre, Durgapur – 713 216.
Through its Directors –
a. Asim Sarkar, S/o. Dulal Chanda Sarkar.
b. Asis Sarkar, S/o. Dulal Chandra Sarkar.
Both of India Metros Reality Pvt. Ltd., 4/7 Surya Sen Nagar, Durgapur – 713 123, District: Burdwan.
c. Kousik Basu of 26/23, Tilak Road, PO: Durgapur – 713 205, District: Burdwan.
AND
2. Asim Sarkar, Director of India Metros Reality Ltd., (S/o. Dulal Chandra Sarkar).
3. Asis Sarkar, Director of India Metros Reality Ltd., (S/o. Dulal Chandra Sarkar).
Both of India Metros Reality Pvt. Ltd, 4/7, Surya Sen Nagar, Durgapur – 713 213, District: Burdwan.
4. Kousik Basu, Director of India Metros Reality Pvt. Ltd., 26/23, Tilak Road, PO: Durgapur – 713 205, District: Burdwan.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Nirmal Kumar Chakraborty.
Appeared for the Opposite Party (s): Ld. Advocate, None.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the Ops as the Ops have miserably failed to execute the registration is respect of the purchased land.
The brief fact of the case of the complainant is that the OP-1 is a profit making company and the OP-2, 3&4 being the directors of the OP-1 used to render service to their consumers in respect of development of real estates. For carrying out business the Ops made a propaganda intending to develop certain plots of land as well as flats for setting up a satellite township, namely, ‘Gopalpur, New Town’, at Gopalpur at Rajbandh, Durgapur opp. of Utsav Hotel. They circulated their brochure wherein the location of the plot and the development work of the overall project have been mentioned specifically. The complainant being attracted with the printed coloured brochure of the OP-1 showed his eagerness to purchase two developed plots of the said project for his own use and occupation along with his family. Accordingly, the complainant deposited Rs. 1,88,054=00 through cheque on 18.02.2012 at the office of the OP-1 towards first installment and accordingly the OP-1 issued receipt dated 18.02.2012 to the complainant. According to the provision the OP-1 and the OP-2 being the authorized managing partner executed a deed of sale with complainant along with some terms and condition mentioned therein. But the agreement for sale did not bear any date of execution and the OP-2 being the authorized signatory of the OP-1 put his signature without any date. The back portion of the non judicial stamp paper was purchased on 17.02.2012 for selling of the scheduled two plots of land as mentioned in the agreement for sale. Thereafter according to the terms and conditions made down in the sale agreement the complainant deposited Rs. 1,88,054=00 by cheque on 01.4.2012 to the office of the OP-1 and accordingly receipt was issued. Thereafter the complainant tried his best to deposit further installments but the OP-1 declined to receive any payment and also did not show any reason or non receipt of the installment amount as per the agreement for sale from the complainant. Then the complainant met with the OP-2 for making payment of the installment, but he failed. Without finding any alternative the complainant wrote a letter on 27.3.2014 requesting to cancel the agreement for sale executed by the OP-2 on behalf of the OP-1 and return back the entire amount of the two installments for Rs. 3, 76,108=00 but the OP-1 to OP-4 did not take any suitable action to refund back the said amount to him till filing of this complaint. Then the complainant went at the residential house of the OP-2 for settlement of the matter, but the Op-2 did not allow him to meet with him rather threatened the complainant that dire consequences may be faced by the complainant. According to the complainant in this way the Ops have cheated him. When the OP-1 did not pay any heed to his request for cancellation of the agreement for sale and refund back the amount of the two installments, then he approached before the Assistant Director, Consumer Affairs & Fair Business Practices, Durgapur Regional Office on 22.01.2015. The Assistant Director was pleased to call the OP-2 but the complainant appeared on 17.02.2015 and 03.3.2015 at the office of the Assistant Director for hearing for resolving the dispute through the mediation but neither the OP-2 nor any representative on his behalf appeared therein and as a result the ld. Assistant Director was pleased to advice the complainant to file a complaint before the ld. Consumer Forum for his redressal against the OP-1 to OP-4. The complainant being a senior citizen and retired employee intended to purchase plot of land for construction of residential building for his use and occupation and for this reason the approached before the Op based of utmost good faith and trust. Inspite of fulfillment of his liabilities as per agreement for sale, the OP-1 to OP-4 have cheated him in his old age and took the amount of Rs. 3,76,108=00, for the this reason complainant is suffering from mental pain and agony along with financial stringency. Having no alternative, the complainant has approached before this ld. Forum praying for direction upon the Ops to return back the amount paid by him to the tune of Rs. 3,76,108=00 along with interest @10% p.a. , compensation for Rs. 1,50,000=00 due to mental pain, agony and suffering and litigation cost of Rs. 30,000=00.
The Complainant has adduced evidence on affidavit along with several papers and documents in support of his contention by way of ‘firisty’.
After admission hearing notices were sent to the OPs through this Ld. Forum. On 27.05.2015 the OP-4 appeared and prayed time for filing Vokalatnama and written version. As on that the notices were returned in respect of the OPs-1-3 with the endorsement as ‘left without address and hence returned to sender’, next date was fixed for taking fresh steps in respect of the OPs-1-3 by the Complainant. Though on 18.06.2015 the OP-4 filed Vokalatnama, but prayed further date for filing written version. On 08.07.2015 the OP-1 (c) appeared and along with the OP-4 prayed time for filing written version and on that date further notices were issued upon the OPs-2-3. But ultimately though the OPs have appeared before this Ld. Forum, but did not bother to file written version within the statutory period for filing the same as per the Consumer Protection Act, 1986 inspite of taking several adjournments. Therefore this Ld. Forum was pleased to fix for final argument ex parte against the OPs.
We have carefully perused the petition of complaint along with several papers and documents submitted by the Complainant and heard argument at length advanced by the Ld. Counsel for the Complainant. It is seen by us that admittedly the Complainant entered into an agreement for sale with the OPs for purchasing two plots at Gopalpur, New Town, Rajbandh, Durgapur being attracted with the advertisement given by the OPs at different places. The Complainant has filed the copy of the agreement for sale, advertisement, several written correspondences, the order of the Assistant Director, CA & FBP, Durgapur Regional Office, brochure and money receipts to corroborate the statement as stated in the petition of complaint. The Complainant as per the terms and conditions of the agreement for sale paid two instalments through two cheques on 18.02.2012 and 25.03.2012 respectively for Rs.3, 76,108=00 in total in view of the schedule ‘C’. In the terms and conditions of the agreement for sale it was mentioned that entire cost of the plot should be paid by six easy monthly installments and within six months from the date of the agreement for sale the developer will execute the sale deed in favour of the purchaser. While the third installment became due and the Complainant went to make payment of the same to the OP-1, 2 and other OPs at their office as well as residence, the OPs refused to accept the said installment from the Complainant, without assigning any reason. The Complainant made written correspondences with the OPs, but to no effect. At last being frustrated and humiliated with the behaviour and action of the OPs the Complainant prayed for refund of the amount as paid by him to the tune of Rs.3, 76,108=00. But the OPs did not bother to take any fruitful step either to accept the remaining installments from the Complainant or refund the paid amount to the Complainant. Being perplexed and helpless the Complainant approached before the Assistant Director, CA & FBP, Durgapur Regional Office by filing an application stating his grievance to resolve the same. Though the OPs were duly intimated by the Ld. Assistant Director, but the OPs did not appear on two occasions for resolving the dispute through mediation and hence the Complainant was advised by the Assistant Director to approach before the Ld. Forum for redressal of his grievance and hence this complaint is initiated by the Complainant praying for certain reliefs along refund of the paid amount. We have noticed that the OPs have kept themselves completely silent over the matter in respect of refund of the amount as paid by the Complainant. From such action of the OPs it is curious to us that when the OPs being unable and/or not interested to accept the balance installments towards the cost of the plots from the Complainant and did not assign any cogent reason for such non-acceptance of the consideration amount, the OPs showing their good gesture did not take step for refund of the paid amount to the Complainant, the picture is not at all clear to us. Without doing anything and without taking the balance installment the OPs kept themselves mum after grabbing two installments from the Complainant. Moreover, by giving a colourful advertisement for providing plots for construction through purchase, the OPs took steps to assure the consumers/purchasers, but ultimately they have failed to keep their commitment. Such action of the OPs in our view can easily be termed as an unfair trade practice.
Upon careful consideration of the record we are also of the opinion that the Complainant is very much entitled to get back refund of the amount as paid by him to the OPs. In the prayer portion of the complaint the Complainant has prayed for an interest @10% per annum on the paid amount of Rs.3,76,108=00. In this respect the Ld. Counsel for the Complainant has relied on the landmark judgment of the Hon’ble Supreme Court passed in the case of Gaziabad Development Authority vs. Balbir Singh. We have perused the judgment and it is seen by us that Their Lordships have mentioned that in case of delay/non-delivery of a plot or flat etc. Interest should be imposed. In the said case the Hon’ble Supreme Court was pleased to impose interest @18% p.a. But Their Lordships have mentioned in the said judgment that on each and every complaint interest @18% should not be allowed as a flat rate because every complaint should be adjudicated considering the facts and circumstances of each cases and considering the same interest should be awarded. In our view the said judgment is applicable in the case in hand but we cannot award interest @18% p.a. on the paid consideration amount. It our view it will meet justice if we direct the OPs for making payment of interest @8% p.a. on the paid amount by the Complainant. Admittedly due to deficient service of the OPs the Complainant had to approach before this Ld. Forum by filing this complaint and incurred some cost for adjudication of this complaint, so in our considered opinion the Complainant is entitled to get litigation cost from the OPs. Though the Complainant tried his best to make payment of the remaining installment amount to the OPs and lastly to mitigate the problem before coming to the Court of Law with the OPs by making several written correspondences, but as the OPs did not take any fruitful step to solve the matter with the Complainant, due to such inaction the Complainant had to suffer mental pain, agony and harassment along with pecuniary loss. For this reason the Complainant is also entitled to get compensation from the OPs.
Going by the foregoing discussion, hence, it is
O r d e r e d
that the complaint is allowed ex parte against the OPs with cost. The OPs are directed to refund either jointly or severally the amount of Rs.3,76,108=00 (Rs. Three lac seventy six thousand one hundred and eight) only to the Complainant paid by him towards the part payment of the cost for purchasing the plots at Gopalpur, New Town, Rajbandh, Durgapur along with an interest @8% (eight per cent) p.a. from the date of making payment of the last installment i.e. 25.03.2012 till realization of the entire amount along with interest within 45 (forty five) days from the date of passing of this final order, in default, the entire decreetal amount (Rs.3,76,108=00 +interest 8% p.a.) shall carry penal interest @10% (ten per cent) p.a. for the default period. The OPs are further directed to pay either jointly or severally Rs.3, 000=00 (Rs. Three thousand) only to the Complainant as compensation due to mental pain, agony and harassment and litigation cost of Rs.1, 000=00 (one thousand) only to the Complainant within 45 (forty five) days from the date of passing of this order, failing which, the Complainant will be at liberty to put the entire order in execution as per provision of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
