HON’BLE MR. ASHIS KUMAR BASU MEMBER
Order No. 16
Date: 24.02.2021
The record is put up for judgment.
1.The dispute in the present case arises out of a complaint filed by the Complainant under section 12 of the Consumer Protection Act 1986 ( hereafter, the Act.) in relation to deficiency in service and unfair trade practice on the part of the Developer in not handing over the physical possession of the Residential Flat/ Apartment to the complainant as per sale agreement resulting immense mental pressure and financial burden upon him.
BRIEF FACTS
2. Sri Hemant Kumar Nayak , S/O Sri Dhaneswar Nayak, proprietor of Jagannath Enterprises and Director of M/S Jagannath Sanitary and Plumbing Construction Private Limited of 39/1/2A Gopal Nagar Road, P.S. Alipore, Kolkata- 700027, W.B. has been engaged in the business of plumbing and sanitation work in various housing projects. Sri Hemant Kumar Nayak , Complainant in this case has been engaged as a plumbing and sanitation contractor in the housing project under Bengal Shristi Infrastructure Development Limited in Tarang, Shristinagar, Asansol, Burdwan , Opposite Party in the instant case.
3. Complainant intended to purchase a flat in his name for residential purpose for his family. Knowing the intention of purchase a flat by the complainant in the said housing project which is under construction , the OPs 1&2 agreed to sale the same and advised to deposit Rs.4,20,042/- as application money .
4. Through a lottery, in October , 2015, a flat being unit no. V-8A, 8th Floor,Tarang, Shristinagar- Asansol, Paschim Bardhaman was allotted in the name of Jagannath Enterprises of 39/1/2A Gopal Nagar Road, P.O. and P.S. Alipore, Kolkata-700027.where the complainant is the proprietor. Abhishek Bhadwaj, Sr. Vice President- Marketing , OP No.2 through a letter dated 16.10.2015 ( Annexure – A ) informed complainant that a flat had been provitionally allotted in his favour on 8th floor admeasuring 1460 sq. ft. along with a covered car parking space for the ‘ total cost’ of Rs. 41,01,291/- . As per money receipt no.11254 dated Oct 16 ,2015, issued by the OPs ( Annexure – B ), the later received Rs. 420042/-. Complainant alleged that he requested OPs to provide a copy of agreement for sale but they refused to give the same but issued the allotment letter on 16.10.2015. Complainant wanted to book of the apartment in question in his name but the OPs booked the same in the name of M/S Jagannath Enterprise, whose proprietor is complainant. Complainant pointed out the fault in the booking but the OP informed that it was happend inadvertently and as it is already recorded in the system this cannot be changed. OP issued further two money receipts dated 10.10.2015 and 04.04.2016 for Rs. 10,00,000/- and Rs.15,80,000/- respectively in favor of Complainant towards cost of the said flat. As per ledger account for BSIDL-ASN-INFRASTRUCTURE (page no.24 ) the OP received payment amounting to Rs. 432967/- on 8.12.2017 from Jagannath Sanitary And Plumbing Construction Pvt. Ltd whose Director is the complainant. Hence the total money received by the OPs stands at Rs. 34,33,009/-. from 16.10.2015 to 8.12.2017
5. On 18.08.2017, OP 2 informed complainant through a letter that the later can take the possession of the said apartment by paying the rest amount and he can contact Mr. Nigel Manson if he wish to check his unit i.e apartment in question. At the end of August ’17, the complainant went to inspect the allotted flat, but found an person had already occupied the said flat being flat No. Unit No. V-8A, 8th Floor, Tarang, Shristinagar. Complainant could not inspect the said flat as the said person disclosed that the flat in question had been allotted to his name. Being disheartened, Complainant met OP2 who informed that the flat in question had been already allotted to another man and the matter would be resolved amicably. Complainant raised a strong objection as the OPs allotted the flat to another person though he has already paid Rs.34,33.09/- and ready to pay the rest amount , Complainant also objected as the OPs cancelled his allotment of flat without information and without making any refund of consideration money.
6. The complainant, through two e-mails dated 04.09.2018 and 11.12.2018 informed OPs that the allotted flat in his name is handed over to another person without information and refund of payment received. Consequently , complainant demanded either to have the possession of the allotted flat or refund the entire amount received at a time immediately, otherwise he will take legal action against their misdeeds and unfair trade practice. As per complaint,on 12.12.2018, one Mr. S. Kumar stated to be the representative of OPs met with the complainant , agreed to refund the paid up money by installment without any interest as there is no flat left for allotment and the installment for refund would start after three months. Complainant through letters dated 26.12.2018 and 01.01.2019 stated that he was ready to pay the rest amount for taking the possession of the allotted flat as it was ready but the OPs informed him that they will not handover the flat in question as it was sold to a third party.
7. Finding no other alternative, complainant lodged a complaint ( Annexure – E ) against the OPs at Alipore Police station on 07.01.2019 and finally filed this complaint before this commission and prays for relief. Complainant claims that due to such deliberate and willful misdeed on the part of the OPs , he has been suffering from mental agony and anxiety for delay in getting the possession of the flat in question and such wrongful act is nothing but deficiency in service and unfair trade practice .
8. Complainant prays before this Commission to a) execute sale deed by the OPs for the flat in question in vacant habitable condition, admeasuring 1460 sq. ft. with a car parking space on the ground floor in his name as per allotment letter dated 16.10.2015 after receiving balance amount of consideration money (b) alternately, direct the OPs to refund the paid up amount of Rs.3433009/- with interest @ 10% per annum from 11.10.2015 i.e.date of first payment, (c) direct the OPs to pay compensation for Rs, 500,000/- for damages due to mental agony, anxiety and harassment (d) to pay litigation cost of Rs.100,000/-.
KEY FINDINGS
9. If we relook in to the matter, it is found , OPs claimed that the complainant is not a consumer within the meaning of C.P. Act as the flat is not booked in his name but in the name of Jagannath Enterprise, a commercial firm. In the written arguments, OPs admitted that the complainant has been engaged in plumbing and sanitation work in the housing project under the OPs and got the work order on 08.01.2015 amounting to Rs.72,97,056/- and due to financial crunch, OPs could not make payment to the complainant for the said work. To recover the dues complainant proposed to OPs to purchase a flat in the said housing project where the consideration money would be adjusted against the plumbing and sanitation work. OPs issued money receipt to the complainant after receiving application/ booking money for Rs.420042/- and allotted a flat in the name of Jagannath Enterprise where complainant is the sole proprietor. From the very beginning , complainant pointed out that the allotment shall be in his name not in the name of Jagannath Enterprise. But the OPs did not change name as it is already recorded in the system . OPs ‘alleged that the flat was booked not for personal use but for other use. But OPs could not produce any evidence in support of their view. Ld. Advocate for Complainant cited the judgment passed by the ld. NCDRC in Rajendra Properties And Industries Vs. Omprakash where it is held that “ Consumer means any person, who hires any services for a consideration which has been paid .. when such services are availed of with the approval of the first mentioned person. Thus,…the hiring or availing of any services on payment by a person for even a commercial purpose did not disqualify that person from being a consumer under the relevant provision of the Act.”- LAWS( NCD)-2009-1-4. Virtually , Complainant paid the consideration money as he is the sole proprietor of Jagannath Enterprise. Hence complainant is a consumer under section 2(1)(d)(ii) of the Act.
10. OPs further alleged that the instant case is bad for misjoinder and non-joinder of necessary parties as the M/S Bengal Shristi Infrastructure Development Limited made the allotment in the name of Jagannath Enterprise who is not a party in this case . But it is already discussed that allotment of flat had been in the name of Jaganath Enterprise instead of in the name of complainant was a sheer mistake which was occurred inadvertently. Both the parties agreed in this regard as the complainant is the sole proprietor. Hence the question of mis-joinder and non-joinder does not arise.
11. From the very beginning , it is agreed by the both parties that as the OPs could not pay the bills for plumbing and sanitation work done by the Complainant for paucity of fund, the consideration money shall be paid by the way of adjustment against such bills . Hence it is quite evident and logical that all the consideration money would be paid by the complainant by the way of adjustment. As the OPs ultimately received payment by their mutual understanding ( by the way of adjustment ), so the allegation made by the OPs that the complainant had not deposited money through cheque does not arise . Complainant informed OP 2 through a letter dated 04.09.2018 that he has paid total consideration money for Rs. 3433009/- out of which Rs.3000042/- was supported by money receipt issued by OPs and the rest amount of Rs.432967/- is supported by a copy of ledger in the name of BSIDL-ASN-INFRASTRUCTURE ( Bengal Shristi Infrastructure Development limited ) . In the written argument, OPs admitted that the “valuation of flat is Rs. 4101291/- and in addition to Rs.4101291/- Jagannath Enterprise is further required to pay Rs.37212/- and36500/- towards advance maintenance charges and corpus deposit out of which Rs.3433009/- is adjusted with the outstanding bills due to complainant for his work done at project Tarang ,”. OPs has never claimed that the payment schedule mentioned in the said letter is incorrect. On the contrary, the admission made in the written argument by OPs mentioned earlier corroborated with Complainant’s statement . In the evidence, the OPs stated that on 18.08.2017 they informed Jagannath enterprise by a letter to pay balance amount of Rs. 1294121/- to take over the flat. But they did not denied the content of the ledger ( page No. ) where complainant claim payment of Rs. 432967/- on 08.12.2017towards consideration money. In questionnaire ( Q. 6 ) filled by the complainant, it is asked that whether OPs admit that they have received Rs. 3433009/ - in total from 10.10.2015 to 08.12.2017 as for the said flat. But OPs in reply did not deny it categorically, on the contrary gave an evasive answere by replying that they had not received any money from complainant and all the money received from Jagannath Enterprise and Jagannath Sanitary & Plumbing Construction Private Limited. OPs knew it very well that they had received the consideration money from the complainant , Shri Hemant Kumar Nayak, the sole proprietor of the first company and Director of the second company.It is pertinent to mention that due to financial crisis of OPs/ Developer , the payment for the flat appears to be complicated for which complainant is not responsible. From facts and figures and materials on record , it appears that the complainant paid to the tune of Rs, 3433009/-in total for the flat in question.
12. If we delved into the matter, it is found that the OPs intimated the complainant on 18.08.2017 to take possession of the flat as it was ready by paying the final dues and request to check/inspect the same if he wants. In the same letter , OPs instructed to make final payment within seven days from the date of the letter. From money receipt , it reveals that OPs received 3000042/- ( 73.3% of total cost , total payment was Rs.3433009/- as per complainant’s claim )) within 04.04.2016 and gave time only 7 ( seven ) days to pay the due amount and meanwhile complainant has to check the flat in question . In our considered opinion that the time given by the OPs to pay the due amount is very much short which is illogical and unreasonable considering the whole period of time from allotment to finishing stage of the said housing project where the mode of payment was by way of transfer due to financial crunch of OPs. In the evidence, the OPs contented that complainant is asked “to pay the balance amount of Rs. 1294121/- apart from further payment of Rs. 37212/- and Rs. 36500/- within stipulated period , but complainant neither paid the said amount not showed any interest to have the possession of the flat and OPs were bound to cancel the allotment of the said flat”. From record it is revealed that OPs has never disclosed and explained specifically how many days they meant for “ stipulated period “ but in their intimation letter on 18.08.2017, they informed the complainant to treat that letter as a’ notice’ and to make the final dues within 7 days. In page 4 of evidence filed by the OPs , it is stated that “ Complainant did not reply or contact with the OP within time as a result the contract in between the parties got cancelled. “ Now the moot point is how the OPs instructed complainant to deposit the balance Rs. 1294121/- ( as per OPs claim ) within 7 days and what is the effective terms and condition regarding time and the payment of consideration money by the complainant appears to be not reflected in the document filed by the OPs. After receiving a substantial amount of money amounting to Rs.3000042 /- ( Rs. 34,33,009/- , 83,65% of total cost as per complainant’s claim ) and utilizing the said amount for construction of housing project over a long period of time i.e from 10.10.2015 to 18 .08.2017, OPs cancelled the allotment of the flat in question as the rest amount is not paid within 7 days. OPs cancelled the allotment of flat without informing complainant . Complainant through letters dated 04.09.2018 and 11.12.2018 requested OPs that he was ready to pay the balance amount for taking the possession of the flat or to refund the money at a time. But OPs did not pay any heed to his request and neither solve the matter nor refund the money to the complainant . From such circumstances, it is logical conclusion that the harsh decision taken by OPs by canceling booking of the flat is nothing but arbitrary , whimsical and inhuman. Cancellation of booking of flat without any information after receiving a major portion of consideration money and without making any refund, was a gross violation of principle of moral and legal obligation on the part of the OPs towards the complainant. Such an unilateral decision also flouts the principle of natural justice.
13. In brief notes of arguments, complainant contented that at the time of inspection , he found that an unknown person is had been occupying his allotted flat who disclosed that the said flat was allotted in his name by the OPs. OPs did not inform complainant any thing but further received Rs.432967/- on 8.12.17 towards consideration money which is a clear case of breach of trust on the part of OPs. In course of trial OPs never disclosed what was the fate of said flat for which they have received such a huge amount. The OPs admitted that they had cancelled the booking of the flat in question as the Complainant could not deposit the amount within 7 days from the date of intimation letter on 18.08.2017 for possession of flat. The booking of the said flat was cancelled without informing complainant by OPs but they did not offer any alternate way categorically as a relief to the Complainant. Finding no other way, complainant lodged a general diary at Alipore Police Station which is near to his residence and ultimately, the complainant compelled to file the instant complaint before this ld. Commission.
14. If we crystalise our thought , we shall find , OPs all along argued that complainant did not deposited any money for booking the flat and received payment from Jagannath Enterprise and Jagannath Sanitary & Plumbing Construction Private Limited which is not tenable as the complainant is the sole proprietor and the Director of the said two companies respectively, so the matter is all the same.
OPs alleged that the complainant is not a consumer under the Act as flat was booked in the name of Jagannath Enterprise, a commercial firm. But both the parties agreed that it was booked in the name of the said company inadvertently instead of the name of its proprietor. From earlier discussion , it is well proved that the complainant is a consumer.
OPs admit that Rs 30,00,042/- has been received from the complainant but actually they received Rs.34,33,009/- which is proved from the ledger submitted by the later and OPs raised no objection in this regard. After receiving a substantial amount of consideration money ( 83.65% of total cost ) OPs hastily cancelled the allotment of flat on the plea that the complainant could not deposited the rest amount within seven days from date of intimation, OPs had taken this harsh decision without giving any indication and intimation to the complainant. From record it is found that OPs did not offer any alternate way categorically either in the form of another flat or refund of money received from the complainant. It is true that the complainant gave no explanation exactly on which date he has gone to inspect the flat in question. Still the cancellation of booking of flat after receiving a huge payment was a gross injustice made by the OPs towards complainant. In view of above the OPs violated the principle of natural justice and moral and legal obligation as a service provider towards complainant.
After overall consideration of the facts and circumstances of the instant case, we are of the view that it is a clear case of deficiency in service and unfair trade practice on the part of OPs 1 & 2 for which the complainant is entitled to get compensation. In this view of matter, we deem it appropriate and proper that the complainant be entitled to have Rs.34,33,009/-as refund which he paid as consideration money.
ORDERED
The instant complaint be and the same is allowed on contest without cost.
OP 1 & 2 are jointly or severally directed to pay the complainant Rs. 34,33,009/- for refund claim along with interest @ 8% per annum w.e.f. 08.12.2017 till the compliance within 90 ( ninety ) days from date of passing this order.
OP Nos. 1 &2 are also directed to pay the complainant Rs. 100000/- jointly or severally for causing pain, agony and harassment within 90 ( ninety ) days from date of passing order apart from litigation cost Rs.50,000/- within the said period.
We make no order as to cost.
Let a copy of judgment be supplied to the parties free of cost.
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