JUDGEMENT

          Complainant by filing this complaint has submitted that as per advertisement of the ops regarding development of project for construction of bungalow/row houses namely Larica Green Hamlet at Nepal Gunj Road, Amgachia, Pailan, Kolkata – 700104 complainant intended to booking of a bungalow at Larica Green Hamlet, Nepal Gunj Road, Amgachia, Pailan, Kolkata – 700104 came into a contact with the agent of Larica Estates Ltd. and came to learn about the payment schedule for the bungalow and for plot of land of Rs. 50,000/-, on confirmation Rs. 50,000/-, balance in 10 equal monthly installments and for Bungalow construction linked payment plan on booking Rs. 50,000/-, within 30 days of confirmation of Rs. 50,000/- and balance payment @ 10% on completion of referred stages and complainant applied for allotment of a bungalow being Type B-5, Plot No.A-42 at Larica Green Hamlet, situated at Nepal Gunj Road, Amgachia, Pailan, Kolkata – 104 and for a total value of including plot of land and bungalow fixed at Rs. 38,41,197/-.

          Accordingly complainant paid Rs. 1 lac at the time of application for booking through cheque on 28.02.2013 drawn on Axis Bank, bearing No. 27011.  After booking confirmation letter dated 20.03.2013, the ops informed the complainant that the application for booking of land with bungalow bearing plot No. A42 has been confirmed and provided the registration No. D202 for all future correspondences.  In the said letter ops acknowledged the payment received from the complainant of Rs. 1 lac as application money for land and bungalow Rs. 50,000/- and also requested to pay further amount of Rs. 1,50,000/- as confirmation of the same by 30.03.2013.

          Accordingly complainant made payment as per requirement and direction of the op on 28.02.2013 Rs. 1 lac vide cheque No. 27011 dated 28.02.2013 and on 26.03.2013 Rs. 1,50,000/- for installment of land & bungalow vide cheque No. 27013 and on 13.05.2013 Rs. 1,05,000/- for installment of land bearing cheque No. 27016 on 11.05.2013.  Accordingly complainant paid total Rs. 3,55,000/- and as consumer under the op.  But subsequently complainant badly required for the residential accommodation and they observed that there is no progress of the development of work and when the complainants enquired about the further development, no positive answers from the ops was received up to the month of June-2013.  Complainant requested the ops to refund the paid money and cancel the booking but the ops delayed the process on some lame excuses that they are arranging some buyer for complainants above said land and bungalow so that they can refund.  After repeated request of complainant, ops asked the complainant to submit the refund letter on 23.07.2013 in their given format and complainant submitted the letter accordingly.

          Thereafter on 06.08.2013 op called the complainant at their registered office and handover an account payee cheque dated 17.08.2013 for an amount of Rs. 2,84,000/- against the total payment made by the complainant of Rs. 3,55,000/- and took back the original allotment letter. On questioner complainant came to learn that the balance amount shall not be paid because 20% of the total amount has been deducted as complainant must have knowledge about the said allotment.  But this condition of deduction was never discussed with the complainant by the representatives of the ops.  Thereafter complainant requested the op for refund back the balance earnest money in every occasions even after repeated reminders and also a demand notice was sent by the complainant to the op through his Ld. Lawyer and practically it is an unfair trade practice and as consumer complainant is entitled to get some interest and accordingly complainant has prayed for refund of the same amount with interest and for redressal.

          On the other hand op by appearing before this Forum by filing written version on 28.05.2014 denied all the allegations except admitted that at no point of time ops have any format of alleged refund letter so the question of asking for refund letter in given format does not arise at all and denied all the other allegations but submitted that finally on 07.08.2013 the cheque for applicable refund amount as per clause 13 of the Certificate of Allotment dated 01.03.2013 was handed over to complainant against proper receipt and balance amount cannot be refunded and in view of the fact complainant himself prayed for cancellation of the said allotment and for which a per agreement the op shall not anyway liable to pay the same and as per terms of allotment complainant is not entitled to get the same and for which this complaint should be dismissed.

                                                          Decision with reasons

          On proper consideration of the entire complaint and written version and also certificate of allotment, it is clear that certificate of allotment was issued on 01.03.2013.  Truth is that complainant paid Rs. 3,55,000/- and it is also fact that no bungalow has been constructed in the said area or in respect of allotment as made to the complainant as yet.

          Fact remains from 01.03.2013 to 17.12.2013 not a single brick was placed in the said plot for construction of the flat and it is also fact that ops have failed to take further money as per allotment letter as installment because no construction work, no positive action has been taken not even no plan has been sanctioned and practically prior to that complainant visited that place of land and found that it is green land having no sign of any sort of work made by the op for construction of bungalow in the said area.  That means within 12 months from the date of allotment nothing was done by the op.  So complainant was disgusted and was dissatisfied that this project shall not be viable in future.  But in the meantime op already received Rs. 3,55,000/- when complainant asked the op about the fate of the bungalow, op did not respond.

          Moreover in the written version anywhere in the allotment op stated that they started construction and construction was started as plan was sanctioned and received.  But nothing was stated.  So it is clear that complainant waited up to December-2013 but did not find any sort of construction in the area.  So, he was no doubt disgusted as consumer.

          Most interesting factor is that as per said agreement the bungalow shall be handed over to the consumer within 18 months from the date of confirmation and from the confirmation letter on 01.03.2013 it is clear that till today that is in the month of August-2014 no construction has been made.  So, op is very much silent about the construction work, about the progress of the work or any sort of step has been taken by the op for construction of the bungalow and considering that fact it is clear that op has not taken the project as yet.  18 months have already been lapsed.  Op has failed to give any assurance before this Forum by filing proof actually construction is on progress and within 12 months the bungalow shall be handed over.  But we have gathered from the written version that op has not been able to construct the same and no plan has been submitted by the op.  So that sanction plan has already been granted and work is under progress and as because op is unable to prove for which in written version they only denied the allegation of the complaint but no positive answer due to their project about their progress of their project and about the fate of the bungalow etc in the written statement they are silent.  It indicates that complainant has been practically deceived by the op.  When invariably a middle class people lost his faith upon the above project of the op and prayed for refund invariably refund must be handed over in respect of the entire amount in view of the fact op has deceived the complainant, though in the agreement it is stated that this project has been completed within 18 months and it shall be handed over but 18 months already covered in the present month August-2014.

          But there is no sign of taking any step by the op for construction of the bungalow and for which we are convinced that complainant rightly prayed for refund of the money.  In this regard complainant has proved that he is entitled to back Rs. 2,84,600/- vide cheque No. 534127 dated 17.07.2013 but balance amount o Rs. 71,000/- has not been paid.  But op has tried to convince that as per caluse-13 , 20% has been deducted.  So, Rs. 71,000/- cannot be paid.  But in this regard we have gone through the said terms and conditions when as per terms and conditions clause-14 op have failed to place one brick in the said area for construction after completion 18 months (within August-2014) then invariably the clause-13 is not applicable and in the clause 12 it is specifically mentioned that regular installment should be paid within time.  But op did not receive further installment when they found that they did not take any step to construct any construction in the said bungalow or in the said project and for which it is found that clause-12 has not been complied by the op. 

          Now we shall have to consider the ops’ allegation that as per clause-13 20% has been deducted.  But in this case we have gathered that in respect of said clause it is noted in case of cancellation by the application at any point of time before execution and registration of the deed.  But complainant shall have to take back 20%.  But in this regard the language is very simple because at any point of time before execution or registration of the deed in respect of bungalow if any intended purchaser cancelled in that case 20% can be deducted but in this case situation is otherwise.  No such order was signed by the op asking the complainant to clear the entire dues because they are ready to execute the deed and handed over the possession or they shall have to register the deed.  When such a situation letter was not sent by the op to the complainant in that case clause-13 is not applicable under any circumstances and practically after completion of the work eventually any letter for execution and registration of the deed is made by the op and in that case any intended purchasers cancels, only for the first case 20% shall be deducted but not any other cases.

           For the sake of the argument if it is accepted that complainant prayed for cancellation and for refund it at this stage when there was no construction but a field so op has failed to prove any sort of construction as made.  Then the whole terms and conditions of allotment letter is void.  If op would be able to prove that construction is in progress at that time he pray for cancellation and refund but in this regard op proved himself as liar for which we are convinced to hold that clause-13 & 12 are not applicable in this case and in fact to save the skin of the op about their conduct of non-performance of their liability they have adopted this procedure for deduction of 20% but in the eye of law op cannot do this under clause 13 because clause 13 is not applicable in the present case when op did not construct and did not start any work in respect of the bungalow which was allotted to the complainant and in the result we are convinced to hold that op’s entire defence is false and fabricated and without any foundation.  Ops have already collected and used it and that is the capital of the op and op has not started that project.  But he shall have to deduct 20% in respect of initial deposit made by the intending purchaser but that cannot be the policy of any promoter or any developer.  Anyhow poor person who intended to purchase the bungalow with hope to reside has lost his hope as intended purchaser even after existence of the contract in between the complainant and the op and for which invariably op is bound to refund the entire amount of Rs. 71,000/- to the complainant.  But after deducting only Rs. 5,000/- for initial work and for preparing agreement for processing agreement etc and in view of the above fact and circumstances op is directed to refund Rs. 66,000/- at once and without any fail along with compensation of Rs. 10,000/- i.e. total Rs. 76,000/- to the complainant and also litigation cost of Rs. 5,000/- i.e. total Rs. 81,000/- at once without any further delay by issuing bank draft in the name of complainant but not any cheque and that must be cleared within one month from the date of this order when the deficiency and negligence and unfair trade practice on the part of the op is proved beyond any manner of doubt.

          Hence, it is

                                                               ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs. 5,000/- against the ops.

          Ops are directed to refund Rs. 71,000/- after deducting Rs. 5,000/- as service charge, processing charge etc. so op shall have to pay Rs. 66,000/- out of Rs. 71,000/- and for harassing the complainant and for adopting unfair trade practice op shall have to pay Rs. 10,000/- as compensation to the complainant.

          Accordingly ops in total shall have to pay Rs. 81,000/- to the complainant within one month from the date of this order by issuing bank draft in the name of complainant if op fails to comply the order in that case for each day’s delay op shall have to pay a sum of Rs.200/- per day as punitive damages till full satisfaction of the decree.  If it is collected same shall be deposited to this Forum.

          Ops are directed to comply the order within stipulated period failing which penal action shall be started against them and for which further penalty and fine shall be imposed against them.