Smt. Sangita Paul, Member
This is a case filed by Sri Saibal Dey, S/o. Nitya Ranjan Dey of Hridaypur, Barasat (M), Dist. – 24 Parganas (North), Pin – 700 127 against Mr. Sahoo &Sahu, Director / Promoter of Usashi Real Estate Private Ltd of Kolkata – 700 048 and Usashi Real Estate of Kolkata – 700 048 with a prayer for a direction upon the OPs to pay Rs.4,10,000/- to the complainant along with statutory interest, to pay a sum of Rs.10,00,000/- for deficiency in service on the part of the OPs, to pay a sum of Rs.2,00,000/- only for mental agony and litigation cost of Rs.40,000/-.
OP No.1 is Mr. Sahoo@sahu. He is the Director / Promoter of Usashi Real Estates Pvt. Ltd. The address is 81 Golaghata VIP Road, Flat No.1B, Radhakunja Apartment near Bika Banquet P.S. – Lake Town, Kolkata – 700 048.
OP No.2 is Usashi Real Estates Pvt. Ltd. The address of OP No.1 is same as that of OP No.2. OP No.1 is a company, registered under the Companies Act.
The complainant by filing this case states that being allured by the advertisement, of Usashi Real States Pvt. Ltd. (OP No.2), complainant communicated with OP No.1, for purchasing a self-contained flat measuring 819 Sq.ft. on the 3rd floor along with 1 covered car parking space on the Ground Floor in Tower T2 of the proposed building under project viz Usashi Prince Town (Later changed to Usashi Prime Town Platinum) at Gabtala Bazar, Hatishala near K1 Bus Stand P.O. – Hatishala Police Station Leather Complex, Kolkata – 700 135.
Earlier, it was stated that no additional construction would be erected in front of the ‘flat mentioned herein above, but after wards, there were some additional constructions in front of the subject flat, OP No.1 agreed to allot a new flat measuring 834 Sq.ft (417X2) Sq.ft in Tower P1 on the 2nd floor of the proposed building along with a car parking space in the Ground floor of Tower P1. The flat was booked on 03.08.2016. On the same day, complainant fulfilled all the formalities as prescribed by OP No.1 and gave a sum of Rs.2,05,000/- only by cheque to OP No.1. The amount given by complainant was acknowledged by OP No.1 on 10.09.2016. Complainant further gave a 2nd installment of Rs.2,05,000/- only on 27.05.2017 by cheque. OP No.1 was supposed to get the Khas possession of the said flat in the fourth quarter of 2019. Complainant made further payments. Later the date of giving possession was changed to April 2020. But the OPs did not start the work of construction till the institution of the complaint.
After being aggrieved, complainant requested OP No.1 to pay back the earnest money of Rs.4,10,000/- only along with statutory interest. OP No.1 agreed to pay back, but he refused to pay back to complainant. The complainant sent mails dated 11.03.2020, 8.07.2020, 27.07.2020, 07.08.2020, 1.08.2020 and 05.09.2020 to OP No.1 for refunding the aforementioned amount. Complainant is suffering for his invested money.
The complainant, being aggrieved by the illegal activities of the OP No.1, sent a legal notice on 18.12.2020 for paying back the said earnest money of Rs.4,10,000/- only with statutory interest. But the OP No.1 did not pay back the said amount.
That the cause of action arose on 03.08.2016 when the complainant gave the earnest money of Rs.2,05,000/- to OP No.1 and further on 27.05.2017 when the complainant gave the said instalment of Rs.2,05,000/- and it is still continuing. The complaint filed is very well within the jurisdiction of the Ld. Commission.
Hence complainant prays for a direction upon the OPs to refund a sum of Rs.4,10,000/- only to the complainant along with statutory interest, to pay a sum of Rs.10,00,000/- only for deficiency in service on the part of the OPs, to pay a sum of Rs.2,00,000/- for mental agony and to pay Rs.40,000/- as litigation cost.
In the written version OPs 1 and 2 state that the instant complaint is not maintainable in its present form or in law.
The dispute between the complainant and the OPs would be solved by the arbitrator’s but the complainant did not follow that.
OPs state the allegations made in the complaint petition is totally false and fabricated.
The OPs state that work of construction is still going on, that is why the delivery of possession was not given.
OPs submit that in the pandemic situation, there was no deficiency in service committed by the OPs.
OPs, in their written version, pray for dismissal of the instant complaint.
The instant complaint case was filed on 15.02.2021. The case was admitted on 04.03.2021. Notice was sent to the OPs and the OPs appeared on 13.04.2021. On 22.04.2021, the OPs 1 and 2 file W/V. Copy was served to the complainant. On 17.08.2021, the complainant files evidence on affidavit. On 20.01.2022, the OPs file evidence on affidavit. The complainant files questionnaire with copy on 23.03.2022. But no reply was filed by the OPs. On 17.08.2022, complainant files BNA. OPs were absent on call. Argument was heard and we proceeded for giving judgement.
Points of Consideration
01.Is the complainant, a consumer?
02.Are the OPs guilty of deficiency in service and unfair trade practice?
03.Is the complainant entitled to get relief as prayed for?
Decision with Reasons :-
1.On perusal of records and documents, it appears that complainant was allured by going through the advertisement of Usashi Real Estates Pvt. Ltd. and intended to purchase a self-contained residential flat measuring 819 Sq.ft on the 3rd floor of Tower J2 under the Project Usashi Prince Town – Platinum at Gabtala Bazar, Hatishala near K1 Bus Stand, P.O. – Hatishala, P.S. – Leather Complex, Kolkata – 700 135. Complainant wanted an open space in front of his flat “Hearing about the additional construction in front of his flat, complainant changed his flat to Tower Pl. The new flat measured 834 Sq.ft (417X2) Sq.ft. The new flat was situated on the 2nd Floor and complainant booked 1 car parking space, leaving the earlier one. On 03.08.2016, complainant paid Rs.2,05,000/- through cheque. Complainant gave the 2nd instalment on 27.05.2017 through cheque. OPs acknowledged both these 2 payments. A person who books a flat against an amount of consideration, he is a consumer u/s 2(7) of the Consumer Protection Act, 2019. So the 1st point is decided in favour of complainant.
2.The complainant paid Rs.4,10,000/- in 2 instalments, for purchasing a self contained flat on the 2nd floor of Tower P1. , but the complainant failed to get the same. Complainant lost his hope. In the said project, no development has been made. OPs did not think it important to inform the present status of the project to the complainant. Complainant hoped to have a new flat along with car parking space. But all were in vain. It was told that the Khas possession would be delivered within 40 months from the date of agreement. It has been stated in the averment of the OPs in their written version. An agreement for sale was signed between the complainant and the OP No.1 on 27.05.2017. On 27.09.2020, the time limit of 40 months was completed. No sign of construction was noticed by the complainant. At the time of agreement, the OPs gave high hope, but it did not materialize. Till the date of institution of complaint case i.e. 15.02.2022, the OPs could not proceed. Though, the complainant was ready to pay the third instalment the OPs did not take any step as far as construction is concerned. This clearly depicts deficiency in service and unfair trade practice on the part of the developer OP No.-1.
Complainant wanted to communicate through e-mail for several times e.g., on 11.03.2020, 18.03.2020, 27.07.2020, 07.08.2020, 19.08.2020 and 05.09.2020, for refunding the amount of Rs.4,10,000/-.By that timethe complainant realized that the OPs were not going to give the flat to him.Neither OP No.1 handed over the flat, nor refunded the money.The acts of the OP No.1 clearly depict Unfair Trade Practice adopted by the OPs.Hence, the 2nd point is decided in favour of complainant and against the OPs.
3.Complainant intended to purchase a self contained flat at Gabtala, Hatishala, Kolkata – 700 135. As per agreement, the complainant started giving payment. It was assured by the OPs that the developmental work would be started and the complainant would get the flat within the scheduled time. Complainant was ready for payment. Complainant paid the 1st instalment on 03.08.2016 and the 2nd instalment on 27.05.2017. Complainant invested money, but the OPs did not proceed. Complainant got no return by investing his hard–earned money. As a result, the complainant was suffering from mental pain and agony. The complainant was harassed by the OPs. Complainant wanted to communicate, but the OPs did not answer. The complainant sent legal notice on 18.12.2020, but with no result. The complainant faced financial loss due to gross negligence of the OPs. Neither the OPs discharged their liabilities, nor the OPs refunded complainant’s hard earned money. The complainant was duped by the OPs.
Hence, he is suffering from mental pain and entitled to get relief as prayed for. Hence, the 3rd point is decided in favour of complainant and against the OPs.
In the result, the complaint case succeeds.
Fees paid are correct.
Hence, it is,
ORDERED
That the complaint case be and the same is allowed on contest against the OPs with cost of Rs.20,000/- (Rupees twenty thousand only).
That the OPs jointly or severally are directed to pay Rs.4,10,000/- (Rupees four lakhs and ten thousand only) with simple interest @ 10% p.a. from 27.05.2017 till realization to the complainant within 60 days from the date of this order.
That the OPs jointly or severally are directed to pay compensation to the tune of Rs.1,00,000/- (Rupees one lakh) only for causing mental agony, pain and harassment unfair trade practice to complainant within the stipulated period of 60 days.
That the OPs jointly or severally are directed to pay the litigation cost of Rs.20,000/- (Rupees twenty thousand) within the stipulated period of 60 days.
That the complainant is at liberty to put the order into execution if the orders are not complied with within 60 days from the date of this order.
Let a copy of the order be supplied to the parties concerned free of cost .
The final order will be available in the following website:www.confonet.nic.in.
Dictated and corrected by me.
(Sangita Paul)
Member
