In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/160/2022.

Date of filing: 05/08/2022.                     Date of Final Order: 11/03/2024.

Smt. Lily Chatterjee,

w/o Shri Probal Chatterjee,

r/o Bosepara, Gondalpara,

Post. Gondalpara, P.S. Chandannagar,

Dist. Hooghly, West Bengal: 712137.                                                  …..complainant

  vs 

Bengal Shelter Housing Development Limited,

A Joint Sector Company with

West Bengal Housing Board,

Being represented by its Managing Director

Mr. Samar Nag,

Having its Head office at DN-1,

Eternity Building, 3^rd floor, Sector- V,

College More, Salt Lake City, Kolkata- 700091.                          ……opposite party

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

                         Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35(1)(a) of the Consumer Protection Act, 2019 by the complainant stating that the complainant in order to book a residential unit to be constructed by the Op, purchased one application kit from the OP by paying Rs.200/- only in cash through one probal Chatterjee and obtained a money receipt from the OP and the complainant on 22.1.2010 alongwith the said application form deposited the application amount of Rs.50000/- only vide draft no.000462 dt.13.1.2010 drawn on HDFC Bank, duly received by the State Bank of India  and the complainant received a letter under ref. no. BSHDL/ND/056/2010-11 dt. 5.4.2010 from the OP that Lottery for allotment of flats for Sohini-1(Lower MIG) & Sohini-II (Upper MIG) to be held on 17.4.2010 at about 12.00 Noon at Paschim Banga Academy, Rabindra Okakura Bhavan, Salt Lake, Kolkata-700064 and the OP vide ref no. NDSII/024/1 dated 5^th August 2010 issued an allotment letter in favour of the complainant in respect of Sohini II (UMIG), Block-3, “Neel Diganta” Barasat, 24 Parganas (North) West Bengal and the complainant also received the copy of the terms and conditions of Sohini II (UMIG) Block-3 forming the part of letter dated 5^th August 2010. And the point 12 of the said terms and conditions of Sohimi II(UMIG) Block-3 runs as “the company shall endeavor to give possession of the flat of the allottees within 48 months from the date of the first allotment”.  Here this time period of 48 months with effect from 5^th August, 2010 as stated therein is the essence of contract.

As per the stipulated contained in the letter dt. 5^th August, 2010  in respect of Mode of payment, the complainant accordingly deposited Rs. 2,62,400.00 only towards the allotment money for the residential Unit vide draft no. 000645 dt. 28.8.2010 drawn on HDFC bank, Chandannagar along with Rs. 75,000.00 only towards the allotment money for car parking vide draft no. 000646 dt. 28.8.2010 drawn on HDFC bank, Chandannagar and the complainant received one demand notice for the payment of service tax of Rs. 6,757.00 only from the op under Ref. no. BSHDL/ST/NDSIL/024/2 dt. February 22, 2011 according to the provision as laid down in Section 65 of the Service Tax Act by March 8, 2011 and the complainant accordingly deposited the amount of Rs. 6,757.00 as demanded by the op towards the Service Tax vide money receipt no. 141557 dt. 7.3.2011  and the op under Ref. No. BSHDL/MKT/NDSIL/024/13-14 dt. March 25, 2014 informed that they have completed the foundation work for block: 4 of MIG cluster and Block: 5 of HIG cluster and they were hopeful to complete the foundation work of Block: 3 by the end of March 2014 and in this letter they admitted that the project is running slightly delayed due to some unavoidable circumstances but were hopeful to complete the first phase by mid 2016.

The op raised a demand for payment of 1^st installment with Service Tax against the Allotment of Flat 18, 1dt floor of Sohini II (UMIG) Block: 3 in Neel Diganta, Barasat, 24 Parganas (North), West Bengal and sent the Demand notice under Ref. no. BSHDL/D1/NDSIL/024 dt. 11.4.2014 and the complainant paid Rs. 1,57,440.00 only towards the 1^st installment against the Allotment of the said flat vide draft being no. 102788 dt. 28.4.2014 drawn on HDFC bank, Chandannagar and obtained a money receipt being no. 151563 dt. 28.4.2014 along with a separate money receipt being no. 151564 dt. 28.4.2014 against Rs. 4,865.00 only paid towards the Service Tax on 1^st installment payment and the OP on 1^st June, 2015 vide letter ref no. BSHDL/MKT/NSDII/024/15-16 informed the complainant that the construction activity has stopped due to unforeseen circumstances and reasons beyond their control and they are trying their best to start the construction activities within a very short period of time.  And on 22^nd June, 2016 the OP vide letter ref. no. BSHDL/MKT/NSDII/024/16-17 informed the complainant that they have forced to stop construction activities due to unforeseen circumstances and reasons beyond their control and they are planning to restart the construction activities  at site within 90 days from the date thereof and on several occasions the complainant called the OP in between 2016 to 2020 but did not receive any positive response and sent an e-mail thrice i.e. on November 10, 2020, September 27, 2021 and January 17,2022 respectively to the OP, asking the probable date of handing over of the possession of the flat-1B, 1^st floor at Sohini II (UMIG) Block 3 in Neel Diganta, Barasat, 24 Paraganas (North), West Bengal but received no reply on two occasion and on September 21, 2021 received the similar rely as the complainant was receiving since 2014.

Complainant filed the complaint petition praying direction upon the opposite party to hand over the possession and make necessary arrangements for registration of the schedule property within 90 days from the date of filing of his complaint and to refund Rs. 5,56,662.00  that was paid by way of cancelling the agreement and to pay along with 18% interest with effect from 28.4.2014 till payment of amount and to pay a sum of Rs. 8,00,000.00 along with 18% interest as compensation for mental agony, pain, anxiety and unnecessary harassment and to pay a sum of Rs. 5,00,000.00 as litigation cost.

Defense Case:-  The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the op is a reputed company incorporated under the Companies Act, 1956 and the op is a development company engaged in providing real estate services to the subscribers at large all over India and in West Bengal very honestly, sincerely and carefully and maintaining a goodwill  and prestige in the field of real estate service being one of the largest service providers and the op is a real estate company and/ or which acts as a Joint Sector Company with West Bengal Housing Board and together performs planning, development and constructed of numerous large and small projects of housing, multistoried core residential and commercial complexes and urban infrastructure in Kolkata and also in other District Towns of West Bengal. The op since its inception in 2004,  is a renowned company in West Bengal Apartment industries and the said op successfully completed several projects such as tower namely “Akansha” in phase 2, New Town, “Sisirkunja” at Madhyamgram etc in collaboration with the Kolkata Municipality and is also provided the details of the future projects of the op such as “Alap” at Chandannagore, “Gourikunja” near Netaji Subhas Airport and so on. This the present contesting ops was/ is all along very much diligent to providing the services to the high extends of satisfaction to their large number of subscribers. It is submitted that the promoter/ Developer got building plan sanctioned and commenced construction work of multistoried building over the said land with the right and power to absolute sale, transfer, convey, alienate the constructed area by a separate unit/ flat, garage to the intending purchasers/ buyers after taking consideration money. The complainant being inspected the project site and satisfied with all respect and all relevant papers regarding the building and sanctioned plan and all its common other facilities of the said building an respective flat have expressed her desire to purchase one complete flat and accordingly the complainants made an application for booking of an apartment at the said project being application on 22.1.2010.  Upon payment of such application money the respondent provided a booking ID for future references with the Op in respect of the said flat.  It is submitted that on 5.8.2010 by a letter of allotment the apartment being No.NDS/II/3/1B(Type-A) at Sohini II (UMIG), Block-3, 1^st floor having an area-820 sq. ft.(Approx), valued at Rs.1199600/- at “NEEL DIGANTA” Housing project was provisionally allotted in favour of the complainants on the basis of application dated 22.1.2010 and a further customer ID being no. NDSII/240 had been provided for all future correspondence and payment and the said allotment letter dated 5.8.2010 was in form of an agreement, which contained the general terms and conditions for the allotment of the apartment alongwith the structure for future payments and the said allotment letter was duly executed by the complainants and the authorized representative of the respondent thereby binding themselves to the said terms of the allotment letter.  It is further submitted by the present contesting Ops that the petitioner till date has paid a sum of Rs.558393/- only in different dates and times.  It is further submitted by the present contesting OPs that the OP always performed his part of duties in respect of the said GTC.  It is further submitted by the present contesting OPs that the petitioner with the malafide intention has filed the instant false and frivolous case against the OPs.  It is further submitted that the petitioner with  an ulterior motive intentionally and deliberately has filed the instant case with an intention to get some illegal benefit from the OPs.  The OPs were all along  very much diligent in providing their part of services to the petitioner in high extend of satisfaction.  The present contesting OPs begs to submit that the petitioner has filed the instant case for wrongful gain suppressing the material fact.  The petitioner has deliberately and intentionally suppressed the said material fact before this ld forum and on that score the instant case is not maintainable in the eye of law.  It is further submitted by the present contesting OPs that there are no deliberate latches   or negligence on the part of the present contesting OPs and there is no deficiency in service on their part as the present contesting OPs has duly performed their part of duties to the petitioner.

Lt is further submitted by the present contesting OPs that the petitioner is aware that “FORCE MAJEURE” of the said GTC it is inter alia provided that none of the parties shall be regarded as in breach of any of the terms and conditions of the said agreement if any of the parties is prevented from performing or discharging its obligations terms of the said GTC because of the circumstances beyond its control, inter alia such as

1. Delay for local syndicate problem with the help of some plot holder who intends to extra money from the developer filed litigation and now all the project land is litigated property and project is pending for this.
2. Due to the aforesaid dispute the electric substation is not possible to install.
3. Temporary or permanent, interruption in the supply of material or utilities serving the project (NEEL DIGANTA) in connection with the work.
4. Disturbance created by Local problem.
5. Non-availability of workmen as per the requirement.

It is submitted that the complainant wrote letters to the op and in response to the letter dt. 10.5.2016 of the complainant, the op herein by a letter bearing ref. no. BSHDL/NDSII/151/17-18 dt. 13.6.2017 replied to the letter of the complainant assuring that the refund will be processed and the ops also stated that there was a delay on their part due to some unavailable circumstances and requested the complainants to co-operate and the present contesting ops that the complainant is further aware that because of the “said circumstances” beyond that control of the ops, the project “Neel Diganta” was delayed from time to time to the knowledge of the complainant and to which the complainant was kind enough to adjust and accommodate the ops in completing the project and in the premises the question of the complainant being entitled to get possession and/ or registration of the said flat within 48 months does not and cannot arise and similarity the ops failing as alleged also does not and cannot arise and similarly the ops failing as alleged also does not and cannot arise. It is further submitted by the ops that due to the non-supply of the electric power from the end of the WBSEDCLit was next to impossible on the part of the ops to complete the procedure of handing over the possession to the intending purchasers and for such delayed clearances and approvals from the authority eventually delayed the handing over the possession has been delayed and the said fact and circumstanceshas been duly intimated to the complainant and the ops explained the cause of delay. It appears that the petitioner has suddenly changed the mind of the petitioner and has suddenly come forward with the purported demand on account of alleged interest on the amount so far paid by the petitioner, which the OPs is ready and willing to pay in the facts and circumstances of this case and as terms of the GTC.Hence, the question of payment of any sum on account of mental agony, pain and unnecessary harassment, moreover the demand of litigation cost does not have any legs to stands to stand in the eye of law and is liable to be quashed, set aside and dismissed in limini by imposition of exemplary cost upon the complainant for filing this frivolous and concerned petition with absolute ulterior motive and sheer malafide intention to earn some unlawful gain out this clandestine complaint.It is further submitted by the contesting OPs that the complainant does not at all have any prima facie case and the balance of convenience and inconvenience is absolutely against the interest of the complainant and the same should be summarily dismissed limini by imposition of exemplary cost upon the complainant.It is further submitted by the present contesting OPs that the OPs always performed its part of duties in respect of the said provisional allotment.It is further submitted by the present contesting OPs that the petitioner with an evil intention has filed the instant false and frivolous case against the OPs.It is further submitted by the present contesting OPs that the petitioner with an ulterior motive intentionally and deliberately has filed the instant case with an intention to get some illegal benefit from the OPs. The complainant has deliberately and intentionally suppressed the said material fact before this ld. forum and on that score the instant case is not maintainable in the eye of law.It is further submitted by the present contesting OPs that there are no deliberate laches or negligence on the part of the present contesting OP and there is no deficiency in service on their part as the present contesting OPs has duly performed their part of duties to the petitioner.The present contesting OPs begs to submit that the petitioner is not at all the consumer within the meaning of the consumer as defined in the consumer protection act, 1986 as amended up to date.There is no service provider and consumer relationship in between the petitioner and the Ops exists after default of payments of consideration money.That the said flat in dispute as stated in the schedule of the application petition are contradictory, indefinites, motivated vague and misrepresentation of the original facts and basis of such a petition of the applicant, in law and equity, is not entitled to get any relief as sought for.It is further submitted by the present contesting OPs that the sender of application is an equitable relief and lacks equity, must do equity by the petitioner and should come to court with clean hand.In the instant case the petitioner has not come before the court with clean hand but willfully, intentionally, and deliberately suppressed the materials facts and circumstances and as such the application of the applicant to be considered for rejection but inspite of al the complainant has field the instant case against the ops to fulfill their evil intention and wrongful gain to terminate the prestige of the ops. It is further submitted by the ops that the complainant has not filed any scrap of paper in support of his contention and the claim of the complainant is a genuine one as allegedly claimed by the complainant in the instant complaint under objection as such the said alleged claim of the complainant is not sustainable in the eye of law.

In view of the aforesaid facts and circumstances the instant complaint case merits dismissal in limine with exemplary cost.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

Argument highlighted by the ld. Lawyers of the parties

Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.

            Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by them.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chandannagar, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

   On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that the OP even after filing w/v has not contested this case.  As a result of which this case is running ex parte against the OP vide order no.11 dt.6.10.2023.  It is important to note that the OP of this case has neither challenged the said order dt. 6.10.2023 nor prayed before this District Commission for setting aside ex parte order.

In view of such position the evidence on affidavit which has been filed by complainant side remains unchallenged and uncontroverted.  No cross examination has been made by the OP against the said evidence of the complainant by filing interrogatories.  So this District Commission is of the view that there is no reason to disbelieve the unchallenged and uncontroverted testimony of the complainant.  After going through the evidence of complainant side it is reflected that the complainant has proved his case beyond any shadow of doubt.

It appears from the evidence on record that the OP has neither delivered possession of the above noted flat nor taken any steps for execution and registration of the deed of conveyance.   Now the question is whether the complainant is entitled to get refund of the amount of Rs.5,56,662/- from the OP or not?  In this regard the decision of the Hon’ble Apex Court which is laid down in the case of Experion Developers Pvt. Ltd. Vs. Suishma Ashok Shiroor is very important.  It is reported in the AIR2022SC1824 and as per decision of the Hon’ble Apex Court the complainant is entitled to get refund of the said amount of Rs.5,56,662/- alongwith interest @ 9 % per annum from the date of filing of this case.

            A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.

In the result it is accordingly ,

ordered

that this complaint case being no. 160 of 2022 is allowed ex parte against the OP but in part.

It is held that the complainant is entitled to get refund of Rs.5,56,662/- alongwith interest @ Rs.9 % per annum  from the OP.  OP is directed to pay the said 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.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

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

            The Final Order will be available in the following website www.confonet.nic.in.