Presented by: -

                   Shri Debasish Bandyopadhyay, President.

The complainant has instituted this case against the O.p. for refunding the advance amount of Rs.3,37,000/- alongwith interest @8% per annum from 19/12/2019 and also to pay compensation and litigation cost.

Fact of this case

Case of the complainant

This case of the complainant which is deciphered from the complaint petition of complaint in bird’s eye view is that the complainant is a permanent resident of Santragachi Tati Para Lane, under P.S. Shibpur District Howrah and O.p. by profession is a promoter/developer who engaged in the business of construction within Local Area of Howrah town for many years and the O.p. had come up with public offer to self content flat in the G+3 building at premises no.12 Bisweswar Bannerjee Lane P.S. Bantra, District Howrah under Word 21 of Howrah Municipal Corporation and the complainant booked a flat in the said building and paid advance amount of RS.1,00,000/- and thereafter one Agreement for Sale has been executed in between complainant and O.p. on 30/12/2018 which was notarized under Notary Officer-Sandhaya Betal and total consideration money was fixed for Rs.5,25,000/- out of which the complainant has already paid Rs.3,37,000/- in total to the O.p. It is pointed out that after waiting for long period the complainant approached to the O.p. for getting information about the date of possession and execution and registration of  Deed of Sale of the said flat but surprisingly the O.p. denied to execute and register the Deed of Sale and refused to hand over possession of the said flat to the complainant. It is alleged that the complainant became shocked and was under the impression that he has been cheated by the O.p. and then the complainant once again approached to the O.p. to refund the advance amount of Rs.3,37,000/- alongwith interest from 19/12/2019 and after several requests the O.p. had promised to return the said amount and issued cheques of IDBI bank which were dishonoured due to insufficiency of fund. It is submitted that thereafter the complainant had issued Legal notice on 22/02/2022 through her Ld. Lawyer but O.p. did not pay heed to pay the said amount of RS.3,37,000/-. Thereafter the complainant once again issued one Legal Notice which was returned un-served.

For all these reasons, the complainant has instituted this case against the O.p.

Defense Case

Even after service of notice, the O.p. has neither appeared nor filed any w.v. As a result of which this case is heard ex-parte against O.p.

Points of consideration

            (i)      Is this case maintainable in its present form and in the eye of law?

(ii)     Has this District Commission territorial and pecuniary jurisdiction to try this case?

            (iii)    Whether the complainant is a consumer under the OP or not?

(iv)    Whether the complainant has any cause of action for institution of this complaint case against the OP or not?

(v)     Whether the complainant is entitled to get refund of Rs.3,37,000/- alongwith interest @RS8% per annum since 19/12/2022 or not?

 (vi)   To what other relief / reliefs is the complainant entitled to get from this case?

Evidence lying of this case record

The complainant in order to prove this case has filed evidence on affidavit in support of her point of contention. As the O.p. is not contesting this case no interrogatories has been filed against the said evidence.  

Argument  highlighted  by both sides

In this complaint case the complainant has filed Brief Notes of Argument and in addition to the said evidence on affidavit the complainant side also highlighted verbal arguments and lay emphasis on the oral and documentary evidence.

Decision with reason

The first 4 (four) points of consideration are related with the questions whether this case is maintainable in its present form and in the eye of law and whether this District Commission has jurisdiction to try this case or not and whether this complainant is a consumer in the eye of law or not and whether the complainant has cause of action for institution of this complaint case or not?  In this regard, this District Commission after going through the material of this case record finds that there is no dispute over the issue that the complainant is a resident of Santragachi Area which is within the jurisdiction of Howrah District and O.p. is running his business within Howrah Town and thus it is crystal clear that this District Commission has its territorial jurisdiction to try this case. Moreover the claim of the complainant is far below than that of Rs.50,00,000/-. This factor is clearly reflecting that this District Commission has its pecuniary jurisdiction as well. After going to the materials of the case record this District Commission finds that the complainant has paid Rs.3,37,000/- to the O.p. for the purpose of purchasing the self content residential flat measuring about 300 qr. Ft situated at 3^rd floor of the G+3 building at premises no.12 Biswerwar Bannerjee Lane, P.S. Bantra, District – Howrah and to that effect one Agreement for Sale was executed which was also notarized. This matter is clearly reflecting that the complainant is a consumer under the O.p. It is also evident from the evidence on record that the O.p. has neither delivered possession and executed and register the Sale Deed in respect of the above noted flat nor refunded the advanced amount of Rs.3,37,000/-. This matter is clearly reflecting that the complainant has cause of action for filing this case.

All these factors are clearly reflecting that the complainant is a consumer under the OP and so the complainant has the right of institution of complaint case against the OP as is aggrieved against the activities of the O.p. Thus all the above noted 4 points of considerations are decided in favour of the complainant.

The point of consideration no.5 is related with the question whether the complainant is entitled to refund of Rs.3,37,000/- or not? In this regard this District Commission has already observed that the complainant has paid Rs.3,37,000/- to the O.p. as advanced amount but the O.p. has neither delivered possession of the said flat nor executed and register Deed of Sale. In this regard, it is important to note that the evidence which is given by the complainant remains unchallenged or uncontroverted as no interrogatories has been filed against the evidence of the complainant. There is no reason to disbelief the unchallenged and uncontroverted evidence of the complainant. Thus, it is crystal clear that the complainant has proved her case in respect of points of consideration nos.5 & 6.

Recapitulating the above noted discussion this District Commission is of the view that the complainant is entitled to get refund of RS.3,37,000/- alongwith interest @ of Rs.8% per annum from O.p. from the date of filing of this case (20/04/2022).  

In the result,

it is accordingly,

ORDERED

That this Complaint Case being No. 106/2022 be and the same is allowed ex-parte but in part.

It is held that complainant is entitled to get refund of Rs.3,37,000/- from O.p. alongwith interest @8% per annum from the date of filing of this case.

O.p. is directed to pay the above noted amount within 45 days from the date of passing of this judgment.  Otherwise the complainant is given liberty to execute this award as per law.

No order is passed as to compensation and litigation cost.

The parties of this case are entitled to get a fresh copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of

The word file is drafted and corrected by me.

  (Debasish Bandyopadhyay)

               President

      D.C.D.R.C., Howrah