Final Order/Judgment

Debasis Bhattacharya:- Presiding Member

At the very outset it will be worth mentioning that the notice dispatched to the opposite party as mentioned above was turned back with the postal remark ‘unclaimed’. This District Commission in its order dtd.26.02.2021 presumed that the notice was properly served. However the only opposite party did not appear before this Commission even on a single occasion. Thus this Commission was compelled to run the case ex parte against the opposite party. So question of submission of written version, affidavit in chief and brief notes of argument from the opposite party’s end did not arise.

Now the backdrop of the instant case filed under section12 of the Consumer Protection Act, 1986 is as follows.(contd.)

A purported agreement was executed reportedly on 01.12.2017 between the complainant i.e. the purchaser in this case and the opposite party who is a promoter and developer, for purchase of a flat, the total value of which was Rs.16,50,000/-. The complainant made a payment of Rs.2,00,000/- to the opposite party as advance booking money.

The purported agreement contained specific time of delivery, specific stipulation regarding construction and details of several amenities of the project.

Allegedly there was no progress towards completion of the project.

Now in this meantime, the complainant claims to have got the information that the construction raised till date was in deviation of the sanctioned plan and as such the construction done till date might be treated as illegal. It is further claimed that in view of the illegal construction, the concerned bank was not inclined to sanction any loan. Resultantly the complainant became reluctant to proceed any further in the matter of purchasing the property and accordingly approached to the opposite party for refund of the advance booking amount of Rs.2,00,000/-.

However, in spite of substantial persuasion and service of legal notices, the opposite party refrained from taking any step in the matter of making the refund to the complainant.

Now, in this forum the complainant prays for a decree directing the opposite party to refund back the booking amount of Rs.2,00,000/- along with interest @10% with effect from 10.04.2019, compensation to the extent of Rs.1,00,000/- towards mental agony, anxiety and harassment and Rs.30,000/- towards litigation cost.

                                                       Issues for consideration

1. Whether the complainant is the consumer as defined in the Consumer Protection Act.
2. Whether this Commission has territorial/pecuniary jurisdiction to entertain the instant petition.                                                                                                     
3. Whether there is any deficiency of service on the part of the opposite party.
4. Whether the complainant is entitled to get any relief.

                                          Decision with reason

Issue No. 1

In view of the above discussion and on examination of available records it transpires that the complainant is a consumer as far as the provisions laid down under Section 2(1)(d)(ii) of the Consumer Protection Act 1986 are concerned.

Issue No. 2

 The only opposite party is resident/having their office address within the district of Hooghly.

The claim preferred by the complainant does not exceed the limit of Rs.20,00,000/-.  (contd.)

Thus, this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.

Issue No. 3 and 4

For the sake of convenience, these mutually inter-related issues are taken together. Materials on records viz. the complaint petition, brief notes on argument filed by the complainant and other connected records are perused. The petitioner however prayed to treat the complainant petition as evidence on affidavit and the said prayer was considered and allowed by this Commission vide order dtd.16.09.2022.

The complainant with his petition has submitted photo-copies of the agreement, money receipts, corresponding bank statements and legal notices sent by them to the opposite party.

Materials on records are perused.

Now, so far as the agreement is concerned, there are some glaring irregularities which deserve mention here. Firstly, the agreement which is an unregistered one is not signed by both the parties in the particular space specified for signatures in the concluding page of the agreement. Secondly it is not mentioned in the agreement that on which particular date the agreement is made. Thirdly, the instrument is devoid of signature of any witness. And finally the agreement is not even notarized. Thus the sanctity and authenticity of the agreement is grossly questionable.

The complainants do not declare anywhere in the complaint petition that from which source they came to know that there was a deviation from the sanctioned plan and the construction was an illegal one. That the ‘bank’ declined to sanction any loan in this matter is not substantiated by any document. The complainant does not even state that to which branch of the bank they approached for such loan and how the bank’s reluctance to grant loan was expressed. No communication from the bank in this regard is furnished.

However, the issue which is clear here that the complainant made an advance payment to the opposite party for purchase of a flat and subsequently decided not to proceed any further in the matter of the proposed purchase for certain reasons. Accordingly, a request for refund of the advance booking money was made to the promoter developer but the promoter developer did not pay heed to such request. It cannot be denied that the complainant had every right to cancel the booking for personal reasons which includes financial stringency also. Normally, an agreement incorporates a clause stating the conditions in case of such cancellation of booking. But in the instant case, no such clause has been inserted in the purported agreement.

The complainant, it transpires, either did not go through the content of the agreement before signing the left hand margins of each page of the agreement or was indifferent towards the irregularities of the agreement. But for that reason only the complainant cannot be deprived of the justified refund of the advance booking money.                                                         (contd.)         

In view of the above, the Commission hereby directs the opposite party to refund back Rs.2,00,000/- within 45 (forty five) days from the date of this order. Besides, the opposite party will also pay Rs.10000/- to the complainant as compensation for causing mental agony and harassment and Rs.5000/- towards cost of litigation.  In the event of failure to comply with this order the opposite parties will pay cost of Rs.10,000/- by depositing the same in the Consumer Legal Aid Account.

Hence, it is     

                                                                    ORDERED

 that the complaint case bearing no. 159/19 be and the same is partly allowed on contest.

           Let a plain copy of this order be supplied free of cost to the parties or their authorized Advocates/Agents on record, by hand against proper acknowledgement or sent by ordinary post for information and necessary action.