DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

MUCHIPARA, BURDWAN.

Consumer Complaint No 115 of 2015

Date of filing:  12.5.2015                                                                                Date of disposal: 27.11.2015

Complainant:              Mala Chatterjee, W/o. Ashish Kumar Chatterjee, Resident of 74/85, Jessore Road South, Nabatirtha, PO: Hridaypur, District: 24 Parganas (North), Kolkata – 700 127.

-V E R S U S-

Opposite Party:    1.    India Metros Realty Pvt. Ltd., having its Registered Office at 18, Bibhutibhusan Sarani, City Centre, Durgapur – 16, and also having its Branch Office at 4/7 Surya Sen Nagar, Benachity (Near 54 Foot Road), Durgapur – 13   -  itself and its Directors/Representatives namely-

2.    Mr. Asim Sarkar.        

3.    Mr. Ashis Sarkar, both 2&3 residing at 4/7 Surya Sen Nagar, Benachity (Near 54 Foot Road), Durgapur – 13, PS: Durgapur, District: Burdwan &

4.    Mr. Kaushik Basu, residing at 26/23 Tilak Road, B-Zone, Durgapur – 5, District: Burdwan.

5.    The Registrar of Companies Ministry of Corporate Affairs, Govt. of India, Nizam Palace, Kol – 20.

Present:         Hon’ble President: Sri Asoke Kumar Mandal.

                        Hon’ble Member: Smt. Silpi Majumder

Appeared for the Complainant:           Ld. Advocate, Suman Bez.

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 her eagerness to purchase a developed plot being sub-plot no. 189 of the said project subject to payment a consideration amount of Rs. 6, 08,338=00 including club membership, service tax and brochure cost and accordingly entered into an agreement for sale on 08.02.2013 with the OP-1. The complainant agreed with the terms and the conditions as laid down in the sale deed along with the brochure. In view of the schedule ‘C’ i.e. payment schedule the complainant paid the entire consideration for Rs. 6, 08,338=00 to the OP-Company. The last installment was paid by her on 07.4.2014 as per schedule ‘C’. The Op-Company on every occasion of payment of such installments acknowledged the receipts but did not take any step to develop the land though the time is the essence of contract. On several occasions the Ops were told by the complainant to perform according to the terms and the conditions of the sale deed but the Ops did not pay any heed to her request. In this way the Ops did not show any good gesture towards the agreement sale dated 08.02.2013. Being dissatisfied with such inaction of the Ops along with reluctant attitude the complainant issued several legal notices upon the Ops, but the picture remained unchanged. Thereafter the complainant apprehended that the company and its directors are willfully avoiding this complainant after realizing the entire consideration money and not only that after lapse of agreed period, the complainant issued letter upon the Ops praying for refund of the amount as paid by her towards consideration amount as per Schedule ‘C’ of agreement for sale. On every occasion the complainant was told by the Ops that they will repay/refund the entire consideration amount which they received from her.  It is mentioned by the complainant that she paid entire amount through her husband Mr. Ashish Kr. Chatterjee and her husband also made several communications with the OPs and the Ops after acknowledging the same also responded. According to the complainant the Ops not only did not refund the money but also acted beyond the terms and the conditions of the agreement and showed their reluctant attitude all along. On 23.12.2014 & 27.12.2014 the complainant being compelled sent two legal notices through Regd. Post with A.D. which were acknowledged by the Ops but they did not take any fruitful step in respect of refund of the consideration amount till filing of this complaint. Due to such non-cooperation of the Ops the complainant is suffering from mental agony as well as financial loss day by day. Having no other alternative the complainant has approached before this ld. Forum by filing this complaint praying for direction upon the Ops to refund the amount of Rs. 6, 08,338=00 paid by her along with Rs. 100=00 paid by her towards the cost of the brochure, interest @12% per annum on the above-mentioned amounts from the date of making payment till realization, Rs. 1,00,000=00 towards compensation due to mental harassment,  agony and unfair trade practice and Rs. 10,000=00 as litigation cost.

            After admission of the complaint notices were issued upon the Ops at the given address in the complaint petition and date was fixed for S.R. & appearance of the Ops. On 17.6.2015 notice was returned back in respect of OP-4 with the endorsement as ‘insufficient address’ and for this reason the complainant was directed for taking fresh steps in respect of OP-4. On 02.7.2015 from the order no. 4 it is evident that in respect of OP-1, 2, 3 & 5 have been duly served but none was present on behalf of the said Ops and for this reason this Forum was pleased to fix ex parte hearing against the OP-1, 2, 3 & 5. After filing fresh requisites for sending notice upon the OP-4 the office of this ld. Forum issued notice upon the OP-4 and the same was served but none appeared on behalf of the OP-4. As till the date of final hearing the Ops did not turn up to contest the complaint either orally or by filing written version this ld. Forum took up the hearing of this complaint ex parte against the Ops.

            We have carefully perused the petition of complaint along with several papers and documents submitted by the complainant. It is seen by us that admittedly the complainant entered into an agreement for sale with the Ops for purchasing a plot at Gopalpur, New Town, Rajbandh, Durgapur being attracted and advertisement given by the Ops at different places. The complainant paid entire amount for purchasing the said plot being no. 189 of the project amounting to Rs. 6,08,338=00 along with service taxes as per the schedule ‘C’ of the agreement for sale. Be it mentioned that the complainant paid the entire amount within the stipulated date in view of the schedule ‘C’. The complainant has filed all the money receipts to corroborate the statement as stated in the petition.  Upon making payment of the entire amount the complainant found and got knowledge that the Ops did not make the plot to hand over and very much reluctant to execute the registration of the said purchased plot, in this respect the complainant made several correspondences with the Ops even written correspondences were also made praying for register the said plot in her favour. But the Ops assured the complainant but ultimately did not take any fruitful step for registration in the name of the complainant. Being dissatisfied and aggrieved with the action of the Ops the complainant prayed for refund of the amount paid by her. In this respect the complainant has filed several letters issued on her behalf upon the Ops and the Ops by issuing a letter dated 07.6.2014 in intimated the complainant that they have failed to keep their commitment within the stipulated time and for this reason the paper work for refund of the paid amount is progressing and within a short period entire amount will be refunded, approximately, within a period of one month from the date of issuance of the said letter. As the Ops did not take any step, after lapse of one month the complainant had issued further letter claiming for refund of the amount but as the Ops kept themselves completely silent over the matter hence finding no other alternative this complaint has been initiated by her praying for refund of the amount along with interest and other reliefs.

            From  the terms and condition of the agreement in schedule ‘A’ of the agreement for sale  it is seen by us that under the clause no. 18 it is mentioned it will be India Metros’ endeavour to complete the allotment process within 45 days from the date of receipt of the last  installment. We have noticed that on or before 07.4.2014 the complainant paid the last (15) installment as per the payment schedule. The complainant paid the entire consideration amount along with service taxes. But as per own clause the Ops have miserably failed to complete the allotment process within 45 days from the date of receipt of the last installment. In our view the Ops have violated their own terms and conditions, which cannot be entertained in the eye of law. Moreover, such violation can easily be termed as deficiency in service in view of the Section 2(1) (o) of the C.P. Act, 1986. Not only that after lapse of 45 days when the complainant started to issue written correspondences with the Ops for allotment along with registration of the said plot, but the Ops inspite of providing assurance did not take any fruitful step in this contest. It is curious to us when the Ops being unable to execute the registration of the said plot in favour of the complainant, have failed to show their good gesture by way of refunding the entire amount as paid by the complainant. Without doing anything the Ops kept themselves completely mum after grabbing the consideration amount of the complainant. Moreover, by giving a colourful advertisement for providing flat 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 can easily be termed as an unfair trade practice in view of the C.P. Act, 1986.

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 entire amount as paid by her to the Ops. In the prayer portion of the complaint the complainant has prayed for interest @12% per annum on the entire amount and in this connection 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 said judgment and it is seen by us that Their Lordships have mentioned there that in case of delay /non-delivery of a plot or flat etc. interest should be imposed. In the said case Hon’ble Supreme Court was pleased to impose interest @18% per annum. 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 the 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% per annum on the entire consideration amount paid by the complainant. In our view it will meet justice if we direct the Ops for making payment of the interest @8% per annum on the entire consideration amount as paid by the complainant. Admittedly as due to inaction 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, the complainant is entitled to get litigation cost from the Ops. Though the complainant tried her best to mitigate the problem before coming to the court of law with the  Ops by making several written correspondences, as the Ops did not take any fruitful step to solve the matter of the complainant, due to such inaction the complainant had so 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 with cost against the OP-1,2,3&4 and dismissed ex parte without any cost against the OP-5. The OP No. 1,2,3&4 are directed to pay either jointly or severally the amount of Rs. 6,08,238=00 to the complainant which has been paid by the complainant as cost for purchasing the plot being No.   189 at ‘Gopalpur, New Town’, Rajbandh, Durgapur along with an interest @8% per annum on Rs. 6, 08,238=00 from the date of making payment of the last installment i.e. 07.4.2014 till realization of the entire amount along with interest within 45 days from the date of passing of this final order, in default, the entire decreetal amount (Rs. 6, 08,238+interest @8% p.a.) shall carry penal interest @10% per annum. The OP No. 1, 2, 3&4 are also directed to pay either jointly or severally Rs. 4,000=00 as compensation for mental agony, pain and harassment and litigation cost of Rs. 1,500=00 to the complainant within 45 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 provisions of law.

            Let copies of this final 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

                                                                                (Silpi Majumder)

                                                                                      Member   

                                                                               DCDRF, Burdwan