The instant complaint case has been filed by the complainant Mamta  Choudhary  wife of Alok  Choudhary  r/o of  Sahil Enterprises, Dudhani, Dumka (Jharkhand) against the O.P’s namely  (1)  Mr. Lakshman Bhagtani, Chairman  and Managing  Director, JVPD, Properties Pvt. Ltd. Santacruz (W) Mumbai;  (2)  Mr. Dipesh Bhagtani, Executive Director, JVPD, Pvt. Ltd. Santacruz (W) Mumbai; (3) JVPD Properties Pvt. Limited  represented  through its Chairman and M.D. Mr. Lakshman  Bhagtani  At – 501, 5^th floor, Prime Plaza, S.V. Road, Santacruz (W) Mumbai 400054; and (4)  Mihir Ojha, Proprietor of Aditya Realtors, Borivali (West) Mumbai  U/s 12 of the Consumer Protection Act,1986 (for brevity ,”the Act”) for illegally, arbitrarily not delivering provisionally allotted flat  no- 1705 and also not refunding the earnest money Rs.11,87,500/- and service tax Rs.36,694/- in total of Rs-`12,24,194/- and thereby causing financial loss, mental agony, harassment  to the complainant which amounted to negligency and deficiency in service as well as unfair trades practices on the part of opposite parties. The complainant has prayed  to direct the O.P’s to pay Rs.12,24,194/- (Twelve lac twenty four thousand one hundred ninety four) towards the principal amount deposited with the O.P’s for booking of flat further to direct to pay Rs.1,28,506/- (One lac twenty eight thousand five hundred six)  towards mental agony, harassment as well as  expenditure incurred in  approaching more than 50 times and  visiting Mumbai to the O.P’s office and constructions site  for demanding the earnest money and also direct to pay Rs.10,000/- (Ten thousand) towards of cost of the  litigation. The complainant has also prayed to direct O.Ps. to pay interest amount @ 15% p.a. on the principal amount from the date of last payment of booking amount i.e. dated 31.10.2013 till its payment.

                       2. The brief facts of the case as revealed in the complaint petition, documents annexed therein as well as in short notes of arguments dated 22.12.2017 are as follows:-

                                     That O.P No-1 is the Chairman -cum- Managing director whereas, the O.P.No-2 is the Executive Director of the JVPD properties Pvt. Ltd. having office at 501, 5^th  floor, Prime Plaza, S.V. Road, Santacruz (W) Mumbai( O.P.No-3) and both of them are in- charge and  responsible for the conduct and day to day affairs of the business of O.P.No-3 whereas O.P.No.4 Mihir Ojha is their agent.

                             The further case of the complainant is that She was in need of a flat at Mumbai and knowing her need O.P.No-1 and 2 in collusion with each other and with the assistance of O.P.No-4 in  a conspiracy and connivance     approached to her  through O.P.No-4 and their employee Mr. Sachin Tyagi at Dumka and assured her  that JVPD Properties Pvt. Ltd is a renowned company of real estate  and one  residential building to be known as BHAGTANI  RIYO is being constructed at Mira Road, Mumbai and also assured her that the possession  of the newly  constructed  residential flat will be delivered within  three years from its booking and further assured her that progress in the construction  of the building will be communicated her regularly. Believing the representation made by the opposite parties and also reposing faith and trust on their version complainant agreed to book one residential flat in the said proposed  building. The total consideration price of the said residential one flat was agreed at Rs.23,75,000/-  +  service  tax and vat as per Government regulations  and accordingly  the O.P’s demanded Rs.11,87,500/- as  earnest money at the time of execution of allotment document . The  complainant under  bonafide belief and good faith paid Rs 11,87,500/- against the earnest money and Rs.36,694/-against service tax at Dumka directly in the account of O.P.No-3 bearing A/c No-o1520110000513  of the Bank of India, out of the said amount Rs.10,01,000/- was paid on 30.07.2013 through RTGS by Punjab National Bank, Dumka branch, Rs.5,00,000/- on 13.09.2013 through RTGS by  Punjab National Bank, Dumka branch, Rs.5,86,500/- on 18.09.2013 through RTGS by Punjab National Bank, Dumka branch and Rs.30,500/- on 18.09.2013 through RTGS by Punjab National Bank, Dumka branch.  After being entrusted with Rs.12,24,194/- the O.Ps granted receipt of the amount and executed the  allotment document of flat  no 1705 on 17^th floor  (being 14^th residential floor above 3 podium) of the proposed residential  building to be Known as BHAGTANI RIYO  allotted to her on 31.10.2013.

                              The further case of the complainant is that after payment of earnest money the complainant could not get any information from the side of O.P’s regarding any progress of construction work hence, the complainant along her husband and relatives visited the place of construction in the month of the December 2015 and found that no any construction work has ever been started at the construction site as indicated by the O.P’s in the document. Thereupon ,a legal notice dated 05.02.2016 was served upon the O. P’s about not beginning of any construction work at the site and requested them  to insure the delivery of the  flat no1705 in the building  BHAGTANI  RIYO   and in response thereof  the O.P’s again assured that the project will be launched  in the May 2016. It is alleged that even after laps of the schedule period of May 2016 the O.P’s failed   to launch the project and failed to deliver the flat to her..  It is further alleged that the complainant came to know that by the end of 2016 (a period more than 18 months from the date of booking ) the company JVPD Properties Pvt. Ltd could not obtain the requisite clearance on the land from the competent  authority.

                             The further case of the complainant is that in view of clause 11of provisionally allotment document she  sent a pleaders notice on  02.06.2016 and thereby terminated the provisionally  allotment letter  and requested to pay back Rs.12,24,194/- together with interest @15% p.a from the date of payment of  respective amount till the date of termination but the O.P’s did not refund the amount as entrusted and always   delayed on some pretext or the other to the reason best know to them and ultimately on 27.08.2016 flatly refused to return the entrusted   amount. The further case of the complainant is that the opposite parties had deliberately and intentionally induced by suppressing certain facts and giving false information and assuring to believe that the deal was fair one and free from troubles.  It is alleged that the O.P’s with ill intention and to acquire wrongful gain have entered to an agreement and acquired earnest money. It is claimed that Rs.12,24,194/-  is under the  entrustment of the O.P’s but they fraudulently  and dishonestly misappropriated the said  amount .It is further  asserted  that despite more than six month of termination the O.P’s did not refund the amount of Rs.12,24,194/- along with interest @15% p. a which is an unfair trade practice as well as deficiency in  services .The complainant having found no option lastly filed this case before this forum 07.04.2017 for redressal of grievance  by granting reliefs mentioned in  the foregoing Para.

                              3. On service of the notices all the O.P’s appeared on 14.06.2017 and contested the case by filing their written version dated 02.01.2018 and denied the entire allegations of the complaint case. The opposite party in their  written version have raised  preliminary objections that this forum lacks territorial and pecuniary jurisdiction to entertain this complaint case, the complainant is not a consumer within the meaning of Sec-2(1) (d) of the Consumer ProtectionAct1986 as the flat booked by her is for the purpose of investment ,return and commercial gain. The further case of the O.P’s  is that the purported  allotment letter dated 31.10.2013 is a provisional letter of allotment for booking  residential  flat and not an allotment letter and the same is subject to approval and permission granted by various authorities for construction and hence a contingent contract, which is not enforceable in law unless and until that event  happen  and in case that event does not happens then such contract becomes void and  not enforceable .It is further claimed that  there was no concluded contract entered between the parties moreover the letter  of  provisional allotment clearly specifics that the complainant is aware of  the rules involved in the project. It is further asserted that in pursuance to clause 10 of the provisional allotment letter dated 31.10.2013 the complainant has agreed that she is  an investor and booked the said flat for investment and commercial gain. It is further asserted that it is evident from the provisional letter of allotment that the complainant right from inception was aware that she was taking a chance and if the plan sanctioned, it would be bumper profit for her. It is  asserted  that complainant cannot claim for refund of the booking amount along with interest @15% p.a. and as no case made out for deficiency    in service as well as compensation for physical and mental agony.

                                The O.P’s  in reply to Para 3  (ii)  of the complaint petition have  stated there was no any deficiency in service  and unfair trade practice committed  by them. Further O.P’s have   claimed that the O.P.No-4 and Sachin had no connection with JVM and they never met at Dumka with the complainant, besides no any agreement was entered in to   within three years from booking of the flat. Further in reply  to Para- 3(iv) of the complaint petition it is stated that it is wrong to say that after receipt of the initial amount the O.P’s had  granted  allotment letter rather only provisional allotment letter for booking was  issued and the  same was subject to approval  and permission of various authorities .Further in reply to statement made  in Para- 3(vi) of  the complaint petition it is stated that as the complainant  has not fulfilled the term and conditions of the agreement hence, she is not entitled for claim. In reply to Para-3 (viii) of the complaint petition it is asserted that the O.P’s have not given any assurance and that in the event of failure to commence building construction during the period of 18 months complainant may terminate allotment and in that event O.P’s will immediately pay interest @15% p.a. from the date of payment till refund of entire amount.    The O.P’s in reply to Para- 3(x) of the complaint petition have stated that it is incorrect to say that they failed   to obtain requisite claim of the title on   the land and intimation of   disapproval from the Municipal Corporation within the time mentioned in the allotment letter. They have also denied the statement made in Para-3 (xi) and (xii) of the complaint that the complainant was entitled to terminate the agreement of allotment letter and intention of the complainant about cancellation of the agreement.  It has also claimed that no cause of action has arisen in favour of the complainant hence the complaint is not maintainable rather only civil courts have  jurisdiction to   try and entertain this case   accordingly, prayed  to dismiss the case.

                   4. We have perused the records carefully and heard the learned counsel for the parties and have also considered their written submissions.

5. The complainant is support of her case has filed affidavited statement of three witnesses namely C.W.-1 Mamta Choudhary the complainant herself, C.W.-2 Rajesh Mehariya a witness of facts and .C.W.-3 Galub Mehirya and C.W.4 Alock Chaudhary are another witness of facts.Besides the oral evidence complainant has filed following documents in support her case.

Ext.1- Photocopy of Bank statement, Punjab National Bank of Dumka;

Ext.2- Photocopy of money receipt;

Ext.3- Photocopy of provisional allotment letter offlat No-1705 in proposed residential building Known as BHAGTANIRIYOto be being constructed at Mira Road, Mumbai;

Ext.4-Photocopy of Pleaders notice dated 05.02.2016;

Ext.5- Photocopy of reply of Pleaders notice by O.P’s dated 23.02.2016;

Ext.6- Photocopy of second Pleader notice dated 02.06.2016.

On other hand no any affidavited statement or documentary evidence has been filed on behalf the O.P’s in support of their case.

6. Before, we proceed for discussion and determine the merit of the case it would be appropriate to consider the preliminary objections that have been raised by the opposite parties.

(i) Whether complainant is a consumer within the meaning of 2(1)(d) of this Consumer Protection Act1986and sher has purchased flat for her own use

7- The main issues immerged on the basis of the pleadings of the parties are as follow:  

1. Whether provisional allotment letter dated 31.10.2013 is a contingent contract and not enforceable in view of Sec-32 of the Indian Contract Act;
2. Whether complainant  was not entitled to terminate /cancel the provisional allotment letter ;
3. Whether the complainant is entitled the reliefs claim for     

F I N D I N G 

8. (a) The first point raised by the O.P’s counsel is that this forum has no jurisdiction either territorial or pecuniary to entertain this complaint?

Learned counsel for the O.P’s contended that in view of Sec-11(1 and 2) this forum has no jurisdiction to entertain this complaintcase as none of the O.P. either reside or carry on business in the district of Dumka (Jharkhand) besides no cause of action arose in this district. In support of his submission relied upon a case law reported in JCR 2010 vol.1 page 197. On the other hand learned counsel for the complainant has contended that this forum has ample and justifiable jurisdiction to entertain the present case.

In the present case the Complainant has come up with a caseO.P. NO-3 is large construction company having office at-501,5^th floor, Prime Plaza, S.V. Road, Santacruz (W) Mumbai and its agent O.P.No-4 and its employee Mr. Sachin Tayagi came to Dumka (State ofJharkhand) and represented to the complainant that O.P.No-3 is a renowned company of real state at Mumbai and they are going to construct a residential building to be known as BHAGTANIRIYO at Mira Road, Mumbai and assured her that the possession of the newly constructed residential flat will be delivered within 3 years from the date of booking. The complainant reposing faith upon the O.P’s representations and believing on their version agreed to book one residential flat. It was also agreed that total consideration price for the residential flat would be Rs 23,75,000/- + service tax and vat and on that pretext O.P’s demanded Rs.11,87,500/- as earnest money The complainant under bonafide believe and good faith agreed andpaid Rs.11,87,5000/- against earnest money and Rs.36,695/- againstservice tax directly to the account of O.P.No-3 bearing No-01520110000513 in the

The contention of the opposite parties is that none of the O.P has any office orresidence at Dumka nor any part of cause of action ever arose in this district. In order to appreciate contention of the parties it would be essential to examine the concerned provision:

“Sec-11 Consumer Protection Act,1986 deals with the jurisdiction of the District Consumer Forum:-

1. Subject to the other Provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any claimed [ does not exceed rupees twenty lakhs].

              2.  A complaint shall be instituted in a District Forum within the local limit of whose jurisdiction-

         (a) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or ] personally works for gain, or   

        (b)  Any of the opposite parties, where there are more than one, at the time          of the institution of the complain actually and voluntarily resides or carry or business or has a branch office, or personally works for gain, provides that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally works for gain provided ……………….. as the case may be, acquiesce in such institution, or   as the case may be acquiesce in such institution or

        (c) The cause of action, wholly or in part arises,

C.W.-1 Mamta Choudhary, the complainant in her affidavited statement has fully supported the entire case. In Para-3 of her affidavitedstatementstated that as she was in need of a residential flat at Mumbai and this fact came to the knowledge of O.P.No-1 and 2 who with the help of their agent O.P.No-4 and employee Sachin Tayagiin a conspiracy send to dumka, whoassured her that a building Known as BHAGTANI RIYO is being constructed in Mira Road, Mumbai, which would be ready for occupation within three years of booking. She believing on their version became ready to book a flat in the proposed building and paid Rs.11,87,500/- as a earnest money against the total cost of flat Rs.23,75,000/-.She has also stated that she paid Rs.11,87,500/-and service tax Rs.36,694/- in the O.P’saccount of Bank Of India through four RTGStransactions and after payment of the said amountO.P’s executed the allotment letter dated 31.10.2013 as well as gave receipt of the payment. In Para-34 and 36 of her cross examination stated that agreement was made at Dumka and and her signature was obtained on a paper and the said agreement was in between she her self and Chairman-cum- Director of JVPD properties .She has also stated their on the said agreement Mihir Ojhahad also put his signature. In Para 38 She has denied O.P’s suggestion that this court has no jurisdiction to entertain this case. C.W-2 Rajesh Mehariya , C.W.-3 Gulab Mehariya and C.W.4 Alok Kumar in theiraffidavited statement have fully supported and corroborated the version of complainant .C.W.-3 in Para-14 has stated that Alok Choudhary the husband of Mamta Choudhary deposited Rs.1,01,000/-in the account of the company in PNB, Dumka branch through RTGS before him. C.W.No.4 Alok Chaudhary in Para 10,11,13 and 21 of his cross examination stated that representative of O.P’s came to his house at Dumka and held talk and they paid money through RTGS in the O.P’s account from PNB, Dumka. In this way the complainant has proved that agreement was made at Dumka and payment through RTGS was also made in the account of the O.P.No 3 through PNB, Dumka branch. Thus it is clear that part cause of action arose in the District-Dumka and hence case is fully maintainable in the district forum, Dumka in view of Sec-11(2)(c) of the Consumer Protection Act, 1986. It is also proved that as per the demand of the O.P’s the complainant paid Rs. 12,24,194/- through RTGS in the account of O.P’s in the District-Dumka PNB branch and complainant has claimed Rs.1,28,506/- as compensation on and also Rs.10,000/- as cost of litigation which is below to Rs.20,00,000/- (twenty lakh) and hence in view of Sec-11 (1) of Consumer Protection Act, 1986, this forum has got pecuniary jurisdiction to entertain this case.

Therefore, in view of the above discussion we come conclusion that this forum is fully competent to entertain this case, and the contention of O.P’s counsel has no merit.

(b) The another contention O.P’scounselis that the complainant is not a consumer within the meaning of Sec2(1)(d) of the Consumer Protection Act1986 as she booked residential flat for the purpose of investment, return and commercial gain?

On the other hand learned counsel for the complainant has contended that the complainant case is covered under Sec 2(1) (d) explanation clause of the Consumer Protection Act, 1986 as she purchased the residential flat for her personal occupation through her hard earned money and in support of her plea she has relied upon the following case laws:-

(1) Banga Daniel Babu Vrs M/S Shree Basudev Construction, civil Appeal no-954/2016 decided on 22.07.2016. (2) Lucknow Development Authority Vrs M.K.Gupta reported in 1994 AIR page-787(3) Synco textile Pvt.Ltd.Vs. Greaves Cotton and Co-reported in (1991)ICPR 615(NC).

In the present case admittedly complainant has purchased the residential flat to be constructed at -Mira Road, Mumbai by the O.P’s for her own occupation and for that she paid the earnest money of Rs.11,87,500/- and service tax Rs.36,694/- as agreed between the parties and O.P’sgranted receipt of the payment as well as provisional allotment letter through which they allotted flat No-1705 on 17^th floor in the proposed residential buildingC.W.-1 the complainant herself has fully supported her case of purchasing aflat in the proposed building to be known as BHAGTANI RIYO at- Mira Road ,Mumbai.C.W. No.-2, C.W. No.-3 and C.W.No.4 have also corroborated her version. The O.P’s have not adduced any evidence in support of their assertion, whereas, complainant has fully proved that she has purchased flat for her own occupation and not for the investment purpose.

Sec-2(1)(d) of Consumer Protection Act,1986 reads as follows:-

                                        Consumer means any person who-

1. “buys any good for a consideration which has been paid or promised or partly paid and partly promised  ……………….but does not include a person who obtains such goods  for resale  or for any commercial purposeor
2. hires or avails of any services for a consideration which has been  paid or  or promised ……….but does not include a person who avails of such services for any commercial purpose

Explanation For the purposes of this clause, ‘commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning of his livelihood by means of self employment,

In the aforesaid provision Sec-2(1)(d) Explanation clause clearlysays that word “ Commercial” purpose does not include use by a person of goods bought and used by him and servicesavailed by him ,exclusively for the purpose of his earning of his livelihood by means of self employment. For application of exclusion clause, it is necessary that there is close nexus between the transaction of Purchase of goods and the large scale activity carried of for earning profit. In this case O.P’s have not adduced any evidence showing that the complainant purchased the residential flat for investment or commercial purpose. The case law cited by the complainant applicable to the facts of the present case. Therefore, in view of the evidence led by the complainant as well as the law on the point the objection raised by O.P’s is completely unacceptable.

(iii) The another objection raised bylearned counsel for the O.P’s that the disputes being complicated one, hence ,it should be referred to Civil Court for its disposal.

On the other hand learned counsel for the complainant objected to this plea of the O.P’s counsel and contended that the dispute involves the adjudication of a simple matter to which the consumer forum is fully competent to deal with.

It is evident from the pleadings of the complainant that the matter involved in the present case is about the unfair trade practice adopted by O.P’s and deficiencies in service rendered by them but not a complicated matter which should be relegated to the civil court for disposal. Learned counsel for the complainant has relied upon a case law reported in (2012) 6 SCC page 635 in the case of J. J. Marchant (Dr.) Vrs. Shrinath Chaturbadi in which the Hon’ble Supreme Court held “the procedure under the Consumer Protection Act1986, is adequate vis- a- vis civil court . The head of National Commission being a retired Judge of supreme Court iscompetent to decided complicated issues of law or facts. It would not be proper to relegate remedy to the civil court after in ordinate delay”.

In the present case also there being no complicated question of law and facts and this forum is competent to decide the matter, we therefore reject this objection also as raised by the learned counsel for the oppositeparties.

9. Now we will discuss and determine the points related the merit of the case:-

1.  The first point raised in this case is whether the provisional allotment letter  dated 31.10.2013 is a lawful contract between the parties  or a contingent contract which is not enforceble in view of Sec-32 of the Indian Contract Act? The complainant has come up with definite case that the agent of O.P.No.3 i.e. O.P.No-4 and  its  employee Mihir Ojha  came to the complainants place at District- Dumka (Jharkhand) and gave representation  before that their company( O.P.No-3) is a renowned real estate Company which under taking  construction of a residential building known as BHAGTANI RIYO at Mira Road Mumbai and possession of the  said flat will be believed within three years from its booking and also assured  that progress in the construction will be communicated regularly .The complainant under good faith agreed to book one residential flat and on their demand paid Rs.12,24,194/- in four transaction through RTGS by P.N.B. Dumka branch to the account O.P.No-3. After receiving payment of  Rs.12,24,194/- the O.P’s  granted receipt and  executed allotment document of said building on 31.10.2013. The complainant (C.W.No.1) in her affidavited statement has supported her case and all her witnesses have also  corroborated her version. The  learned counsel for the O.P’s  have cross examined  the complainant In Para-25and 26 of her cross examination  she has stated that it was  agreed  that the possession   of the flat would be delivered  within three years.  In Para-28 she has denied O.P’s suggestion that it has been mentioned in the allotment letter that in case construction work is not commenced within 18 months then O.P’s. would be entitled to reject the allotment .The complainant has filed copy of allotment letter (Ext.3) and from its perusal it is evident that the parties have entered to an  agreement with free consent on lawful consideration and it has not  been expressly declared void  by the Contract Act. Furthermore the agreement does not depend upon any collateral event outside the essentials of the contract. The only stipulation mentioned in clause-11 of the agreement  says that “in case O.Ps does not obtain requisite clearance on  the land title or intimation of disapproval from the Municipal corporation in  relation  to the  construction on the plot  within a period of 18 months from the date of execution, then in such event, the complainant would  be entitled to terminate this letter and claim refund of the amount paid with an interest @15% p.a. from the date of payment till the date of termination from the opposite parties”.

              Therefore, in view of above mentioned clause of the allotment letter it is clear it does not speak of any event which would be necessary for the contract rather it is plain and simple contract in   accordance within Sec-10 of the Indian Contract Act 1872 and it is perfectly enforceable and as such the contention of the O.P’s  Counsel that it is a contingent contract is completely baseless  and not acceptable.

2.  The another issue raised by O.P’s counsel  that  the complainant was not  entitled to terminate/cancell the provisional allotment letter?

The complainant has filed copy of Pleader’s notice dated 05.02.2016 (Ext.4) and from its perusal appears that in Para-6 it has been stated that the O.P’s did not inform the Complainant about not commencing of the construction work and not obtaining IOD by them from Competent authority rather suppressed the real facts. In Para-7 stated that the complainant visited the site of construction and found no construction work ever started. It has been alleged in Para 18 of the Pleaders notice that O.P’s havedishonestly took earnest money by assuring the complainant to construct and deliver flat in the proposed building “ BHAGTANI RIYO” within three years ,to which they do not comply. It is evident from clause-11 of the letter (Ext.3) that it was agreed between the partiesthat in case within 18 months the O.P’s do not obtain requisite  clearance from Municipal Corporation in relation to the  construction of  the flat, the complainant shall terminate the allotment letter and claim refund. The agreement of provisional allotment executed by the parties on 31.03.2013 but within 18 months thereafter i.e. till 31.04.2015 clearance could not be obtained by O.P’s from competent authority hence the complaint was entitled to terminate the contract. It is evident from (Ext.4) i. e the Pleaders notice dated05.02.2016 that O.P’s were requested to deliver the flat in the proposed building within one month of this notice. It further appears from the reply of pleaders notice (Ext.5) that O.P’s wanted to get extension of the agreement from the complaint till may2016. C.W.-4Alok Kumar the husband of the complainant in his affidavited statement in Para-18 has stated that on demand forrefund of earnest money O.P’s told that construction work had began and the flat would be delivered but did not agreedfor extension of the delivery date. Further more from perusal of Ext-6, the second Pleaders notice of the Complainant dated 02.06.2016 that even till 2^nd June 2016 the construction work of the proposed building could not commence, hence Complainant again requested to refund of the earnest money but O.P’s did not refund even till 07.04.2017,the date of filing of this case, thereafter Complainant filed this case before this forum. Thus, the Complainant has rightly terminated /cancelled the contract. Thus, the complainant has fully proved that she was entitled to terminate the provisional allotment (contract) in accordance with clause-11 of the agreement. Therefore plea of O.P’s counsel is not at all acceptable rather against the agreement.

3. The next point for consideration that whether the complainant is entitled to the relief claimed?

In our aforesaid Para’s we have seen that O.P.no.3 being a large construction company after initial talk immediately demanded Rs. 11,87,500/- towards earnest money and Rs 36694/- towards service tax and the com, plainant in good faith and bonafide belief paid money through RTGS in PNB Dumka branch. The O.P’s have admittedin their reply to the pleader notice about acceptance of money as a booking amount for delivering a flat in the proposed building BHAGTANI RIYO for flat No-1705 on the 17^th floor. Both the Parties have agreed in clause 11 of the Provisional allotment letter, which is a concluded conduct, that in case company fails to obtain requisite clearance on the land. The complainant shall be entitled to terminate the contract and claim refund with Interest 15%p.a from the date of respective amount till date of termination. It is also agreed vide clause 12 of the provisional allotmentletter that in the event of termination the amount paid shall be treated as loan till it is re-paid along with interest at the @15% p.a.. It has been proved that even till June 2016 O.P’s could not obtain requisite clearance from Municipal Corporation andcould not start construction work hence the complainant by the second Pleader notice (Ext-6) terminated the contract and demanded for refund of the amount paid by him but the O.P’s denied to comply with their own agreement. The complainant has proved its case of unfair trade practices and deficiency in service against O.P’s through its reliable oral and documentary evidence, where as the O. P’s failed to adduced any kind of evidence in support in their case. Therefore we are of the view that the complainant is entitled to get refund of entire earnest money etc. interest @ of Rs.15% p. a in accordance of clause 11 of the agreement. Thus, this issue is also decided in favour of complainant.

In the result,

O R D E R E D

That the case be and the same is allowed on contest with cost against the opposite partiesi.e. JVPD Properties Pvt. Ltd. and its office bearers and hence they (O.P’s) are directed to make payment of Rs.12,24,194/- (Twelve lac twenty four thousand one hundred ninety four) along with interest @15% p.afrom the date of payment of the respectiveamount till the entire amount is repaid further O.P’s are directed to pay compensation for the mental tension, agony and visiting construction site and the office of the O.P’s of Rs.1,00,000/- ( One lac) and also directed to make payment of Rs.10,000/-(Ten thousand) towards cost of litigation to the complainant.

The order must be complied within one month from the date of receipt of this order failing which necessary legal action as contemplated U/S-25 and 27 of the Consumer Protection Act,1986, shall be initiated.

The office clerk is directed to furnish copy of this order to the parties or their advocate free of cost.

This case, is thus stands disposed accordingly.