IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC/143/2016
Date of Filing: 27.09.2016 Date of Final Order: 06.09.2018
Complainant: Nani Gopal Halder,
1G, Jodhpur Estate, 24/15/1, Joy Chand Road,
P.O. Khagra, P.S. Berhampore,
Dist. Murshidabad, W.B. Pin-742103
-Vs-
Opposite Party: The Manager, New Diganta Project,
106, A.S. Road, Daksmani Apartment B5,
Gorabazar, P.O. & P.S. Berhampore,
Dist. Murshidabad, W.B. Pin-742101
Agent/Advocate for the Complainant: Sri Arunava Roy
Agent/Advocate for the Opposite Party: Sri Sambarta Mukherjee
Present: Sri Asish Kumar Senapati…………………. ...........President.
Smt. Chandrima Chakraborty ……………………..Member.
FINAL ORDER
ASISH KUMAR SENAPATI, PRESIDING MEMBER.
This is a complaint under section 12 of the CP Act,1986.
One Nani Gopal Halder (here in after referred to as the Complainant) files the case against the Manager, New Diganta Project, alleging deficiency in service.
The sum and substance of the complaint case is as follows :
The Complainant booked a flat measuring about 675 sq. ft. in New Diganta Project under the Neel Diganta Project of the OP on 29/04/15 on payment of Rs.50,000/- vide cheque No. 461931 dated 29/04/15 drawn on UBI, Berhampore Branch. In July,2015, the Complainant went to the office of the OP and cancelled his booking and requested for refund of the booking amount but the OP did not refund the booking amount on the plea that booking amount was not refundable. Ultimately, the Complainant lodged a complaint before the Consumer Affairs and Fair Business Practice, Murshidabad but the matter had not been settled. The Complainant has prayed for refund of Rs.50,000/- and compensation of Rs.10,000/- from the OP.
The OP contested the case by filing written version on 19/06/17, contending that the case is not maintainable and the case is barred by law of limitation. The OP admitted that the Complainant booked a flat measuring 675 sq. ft. and paid Rs.50,000/- . It is alleged that as per verbal agreement, the Complainant would execute an agreement on payment of 20% of the total consideration amount by 30 days but the Complainant neither paid any amount nor executed any agreement in spite of several reminders. The OP suffered monetary loss and there was no condition to refund the booking amount. The OP is ready to perform his part of performance but due to latches on the part of the Complainant, the Complainant is not entitled to get any relief. The value of the entire building consisting of flats and shops is more than Rs.5 crore and as such this Forum has no pecuniary jurisdiction to entertain the case. The OP has prayed for dismissal of the complaint with cost.
On the basis of the above versions following points are framed for proper adjudication of the case :
Points for decision
- Is the Complainant a consumer under the provision of the CP Act, 1986?
- Has this Forum jurisdiction to entertain the complaint?
- Is there any deficiency in service on the part of the OP, as alleged ?
- Is the Complainant entitled to get any relief, as prayed for?
Point No.1
The Ld. Advocate for the Complainant submits that the Complainant is a consumer as he book a flat on making payment of Rs.50,000/- and it has been admitted by the OP.
In reply the Ld. Advocate for the OPs submits that the Complainant is not consumer in terms of the provision of the CP Act,1986.
Having gone through the materials on record and on a careful consideration over the submission of both sides, we find that the Complainant and one Sadhana Halder paid booking advance of Rs.50,000/- vide cheque No.461931 dated 29/04/15 (Annexture 1). It is clear from the submission of both sides that the Complainant has not yet got back the said amount from OP. As the Complainant hired the services of the Complainant on making of payment of Rs.50,000/- for booking of a flat of the OP, we find that the Complainant is a consumer in terms of the provision of the CP Act,1986.
Point No.2
The Ld. Advocate for the Complainant submits that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint. It is contended that the OP make advertisement for booking of flat at New Diganta Project (Annexture 2). He further argues that the Complainant paid Rs.50,000/- as booking amount of a flat (Annexture1). He contends that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint.
In reply, the Ld. Advocate for the OP submits that the total cost of the Project Neel Diganta is more than Rs. 5 crore and this Forum has no pecuniary jurisdiction to entertain the case.
On a careful consideration over the materials on record, we find that the Complainant booked a flat on payment of Rs.50,000/- as advance and it is not the case of the OP that the cost of the booked flat is more than 20,00,000/-. We find no justification to entertain the submission of the Ld. Advocate for the OP that this Forum has no jurisdiction to entertain the complaint as the total cost of the project is more that Rs. 5 crore. The cause of action arose within territorial jurisdiction of this Forum. Hence, we hold that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint.
Point Nos. 3 & 4
The Ld. Advocate for the Complainant submits that the Complainant booked a flat on payment of Rs.50,000/- and the OP did not refund the said amount in spite of cancellation of booking by the Complainant. It is contended that the OP has deficiency in service and the Complainant is entitled to get back the booking amount of Rs.50,000/- and compensation of Rs.10,000/- for withholding the amount for a long time.
In reply, the Ld. Advocate for the OP submits that the Complainant is not entitled to get any relief in this case, as the Complainant did not execute the deed of agreement on payment of 20% of the total consideration amount within 1 month from the date of booking. He prays for the dismissal of the complaint with cost.
We have gone through the written complaint, written version, evidence of the Complainant and written arguments of both parties. Admittedly, the Complainant booked a flat on making advance payment of Rs.50,000/- on 29/04/15 (Annexture 1). It appears from ( Annexture 2) that the OP advertised about flats at Neel Diganta Project. It is the specific case of the Complainant that he demanded refund of the booking amount as he cancelled booking of the flat. It is the submission of the Ld. Advocate for the OP that the Complainant is not entitled to get any relief as he did not execute the agreement on payment of 20% of total consideration amount within 30 days from the date of booking of his flat. The OP has failed to produce any document to substantiate that as per advertisement/agreement there was a condition for payment of 20% of total consideration amount within one month from the date of booking. Therefore, it is clear that there was no such condition that the Complainant required to pay 20% of the total consideration amount within one month from the date of booking of his flat. Admittedly, the OP did not refund the booking amount of Rs.50,000/- to the Complainant. We find that the OP has deficiency in service.
The Complainant paid Rs.50,000/- by a cheque dated 29/04/15. The OP is duty bound to refund the said amount to the Complainant as the Complainant cancelled the booking of his flat. The Complainant has prayed for refund of his booking amount of Rs. 50,000/- and Rs.10,000/- as compensation for withholding the amount for a long period. The OP received the amount of Rs.50,000/- on 29/04/15 and the amount has not been refunded to the Complainant even after a laps of more than 3 years. Considering all aspects, we think that the Complainant is entitled to get back his booking amount of Rs.50,000/- along with compensation of Rs.10,000/- for holding the booking amount for a period of more than 3 years.
Reasons for Delay
The Case was filed on 27/09/2016 and admitted on 03/10/2016. The OP contested the case by filing W.V. on19/06/2017. This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Complaint case succeeds.
Fees paid are correct. Hence, it is
Ordered
that the complaint case be and the same is hereby allowed on contest against the OP without cost. The OP is directed to refund the booking advance of Rs.50,000/- along with compensation of Rs.10,000/- to the Complainant by 60 days from the date of this order, failing which the OPs shall pay Rs.60,000/- along with interest @ 10% per annum from the date of this order till realization of the entire amount.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President.
Member President.
