F I N A L O R D E R / J U D G E M E N T
Presented by: -
Shri Debasish Bondhyapadhyay, President.
Brief fact of this case: - This case has been filed under section 35 of C.P. Act, 2019 by the complainant against the OP stating that complainant with her husband being the intending purchaser of residential flat approached before the OP/Developer and after verification of Development Agreement dated 10/05/2016 vide Deed No. 050104176, registered at District Sub-Registrar, Howrah she booked a residential flat on the 3rd floor (south side) measuring about 700 Sq.ft. (including 20% super built area) in the building under construction situated at 19/3, Ananta Ram Mukherjee Lane, P.S. & Dist. Howrah and it was also agreed by and between the parties that the total consideration amount of the flat will be Rs.18,90,000/- (@ 2,700/- per Sq. ft.) only and OP/Developer received total amount of Rs.2,00,000/- only from the complainant (Rs.50,000/- paid on 14/08/2016 by Cheque No. 011717 of Bank of India, Rs.50,000/- paid on 21/08/2016 by Cheque No. 011718 of Bank of India & Rs.1,00,000/- paid on 19/09/2016 by Cheque No. 011722 of Bank of India) as advance booking money out of total consideration amount of the said flat i.e. Rs.18,90,000/- and OP/Developer in this regard gave money receipt to the complainant with the specification of the said flat (3rd floor, south side).
Complainant also stated that after receiving advance booking money of said flat OP could not hand over the same to the complainant as per said specification and OP/Developer decided to return the advance booking money to the complainant due to non-delivery of possession of said flat as per their specification mentioned above and accordingly complainant agreed with the same and thereafter OP/Developer gave several cheques in the name of the husband of the complainant namely Paresh Gandhi most of which were dishonored and lastly OP/Developer on 13/08/2021 gave a Cheque vide No. 000031 amounting to Rs.25,000/- only of Bandhan Bank, Chamrail Branch in the name of the husband of the complainant namely Paresh Gandhi, which was also dishonored on 25/08/2021 and ultimately OP/Developer paid back a total amount of Rs.85,000/- only (Rs.20,000/- by cash paid on 07/11/2020, Rs.5,000/- by cash paid on 08/04/2021, Rs.25,000/- by cheque of Bandhan Bank paid on 07/07/2021, Rs.25,000/- by cheque of Bandhan Bank paid on 17/08/2021 & Rs.10,000/- by cash paid on 22/10/2021) to the complainant through cheques/by cash on several dates out of total booking amount of the said flat of the complainant. Thereafter OP/Developer failed to pay the balance advance booking amount of Rs.1,15,000/- only to the complainant although complainant on several occasions requested the OP/Developer to pay her the said balance amount of Rs.1,15,000/- only but on every occasion OP/Developer denied to pay the same, thereafter, complainant send a legal notice to the OP/Developer through her Ld. Advocate on 01/02/2022 with the request to pay back her balance due amount of advance booking money amounting to Rs.1,15,000/- only. OP received the same but till today neither gave any reply nor take any initiative to return the said balance advance booking amount of the said flat of the complainant.
Complainant further stated that OP/Developer by such mal-activities harassing the complainant which is violating human rights and dignity and complainant also spoiled a good time hampering her work as she had to rush here and there time to time which is not only causes financial loss but also causes mental pressure and for such negligent act in discharging the duties from the end of the OP/Developer and under such circumstances and finding no other alternative way Complainant filed this case before this Commission praying for directions upon the OP/Developer to refund the balance due advance booking money of the said flat Rs.1,15,000/- only to the complainant along with interest from the date of received of such amount till realization and complainant also prayed before this Commission to pay to the complainant a sum of Rs.50,000/- only as compensation for causing mental harassment and agony and complainant also prayed for before this Commission to pay to the complainant a sum of Rs.20,000/- only as litigation cost.
Defense Case: - Notice of this case was duly served upon the OP. But, OP did not appear and no W/V has been filed from the end of the OP from the date of delivery, as such, the instant case proceeded ex-parte against the OP
Issue(s) / Point(s) for Consideration
On the basis of the pleading of the of the Ld. Advocate of the Complainant, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following point(s) for consideration: -
- Whether the complainant is the consumer to the OP or not?
- Whether this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any unfair trade practice on the part of the OP or there is any deficiency in service on the part of the OP.
- Is the complainant entitled to get relief/reliefs as prayed for?
Evidence on record
Complainant filed evidence supported by affidavit and also filed BNA in support of her case.
Whereas OP did not appear in the instant case in spite of receiving notice and no other steps has been taken from the end of the OP.
DECISION WITH REASON
On close scrutiny from the materials on record, it reveals that the complainant is the consumer under Section 2(i)(d)(i)(ii) of the C.P.Act, 1986 to the OPs.
Complainant appears to be the resident of Howrah whereas OP is also having their residences/office in district Howrah. Considering the nature of the case and prayers of the complainant it straightway gives clear signal that pecuniary value of the case is within Rs.20,00,000/- i.e. within the limit of this Commission (formerly Forum). So, this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try this case.
In support of her case complainant filed evidence supported by affidavit and also filed BNA.
Whereas OP in spite of receiving notice of the instant case did not appear and no other steps has been taken from the end of the OP.
Over the issue of maintainability of this case, limitation matter and cause of action matter this District Commission after going through the pleadings from the end of the complainant side that the OP in spite of receiving notice of the instant case did not appear and no other steps has been taken from the end of the OP, as such, this case is maintainable. For the purpose of deciding this matter this District Commission after going through the provision of Section 11 of the Consumer Protection Act, 1986 finds that this District Commission has jurisdiction to try this case. More so, the claim of the complainant is below Rs.20,00,000/- and so the pecuniary jurisdiction of this District Commission is also lying.
Over the issue of limitation this District Commission after going through the provision of Section 24(A) of the Consumer Protection Act, 1986 finds that complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2(two) years if the complainant satisfies the Ld. Commission that he/she has sufficient ground for not filing the case within 2(two) years. Moreover, in this case OP did not appear in spite of receiving notice and thus question of filing W/V and cause of action from the end of the OP does not arise. On close scrutiny of the pleadings from the end of the complainant it also transpires that there is cause of action for filing this case by the complainant against the OP. It is important to note that after going through the provision of Section 2(i)(d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2(i)(d) of the Consumer Protection Act, 1986, the complainant is a consumer in the eye of law. So, the point Nos. 1 & 2 which have been adopted in this case are decided in favour of the complainant side. Moreover, in view of the reported decision of the case of “Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor” which is reported in AIR2022SC1824 this District Commission is of the view that this complaint case is maintainable and this District Commission has jurisdiction to try this case.
Regarding points of decision No. 3 & 4 this District Commission after making scrutiny of the evidence given by the complainant side is nothing but the replica of the complaint petition and finds that there is no dispute over the issue that the complainant approached before the OP for purchasing the flat which has been described in the ‘B’ schedule of the complaint petition and has paid a sum of Rs.2,00,000/- by way of Cheque Nos. 011717 dated 14/08/2016 of Bank of India, 011718 dated 21/08/2016 of Bank of India & 011722 dated 19/09/2016 of Bank of India as advance booking money. It is also revealed that one agreement was also executed in between the parties. But, fact remains that the OP in spite of completion of the building and after development of ‘A’ schedule property has neither handed over the ‘B’ schedule property to the complainant nor executed and registered any Sale Deed. In this regard, it is the vital question whether non-delivery of possession of the flat in question even after taking advance money is a unfair trade practice and deficiency in service or not? In this regard, this District Commission after most respectfully reading of the judgment of Hon’ble Apex Court which is reported in AIR2022 Supreme Court Page 1824 finds that failure to deliver possession of the apartment within stipulated time is undoubtedly unfair trade practice and deficiency in service and in that event the OP is duty bound to refund the advance amount which has paid by the complainant to the OP along-with interest @ 9% per annum. Similar view has been taken by the Hon’ble Apex Court in the case of “Gaziabad Development Authority vs. R. B. Sharma” which is reported in 2004(3)CPR92. Thus, it is crystal clear that the OP is duty bound to refund the advance money of Rs.2,00,000/- excluding the amount of Rs.85,000/- which has been paid back by the OP/Developer to the complainant and thus, the OP is duty bound to refund a sum of Rs.1,15,000/- to the complainant.
In the light of the observation made above, the points of decision No. 3 & 4 are also decided in favour of the complainant side.
In the result, it is accordingly,
O R D E R E D
That this Complaint Case being No. 94 of 2022 be and the same is allowed ex-parte against the OP.
It is held that the complainant is entitled to get refund of Rs.1,15,000/- along-with compensation of Rs.25,,000/- from the OP, along-with interest @ 9% from the date of filing of this case.
OP is directed to pay the said amount within 45(forty five) days from the date of this order otherwise the complainant is given liberty to execute this order as per law.
In the event of non-payment/non compliance of the above noted direction the OP is also directed to pay and/or deposit Rs.5,000/- in the Consumer Legal Account of D.C.D.R.C., Howrah 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/Ld. Advocates/Agents on record by hand under proper acknowledgement/send by ordinary post for information and necessary action.
The final order will be available in the following website Dictated & Corrected by me
(Shri Debasish Kr. Bandyopadhyay)
President, DCDRC, Howrah
