This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant booked a flat No.B4/2/E on 12-10-2012 at Chandramukhi Abasan near Duttapukur, to be constructed by Vibgyor Nirmal Pvt. Ltd. and complainant initially paid Rs.50,000/- to the OP as booking amount of the said flat by a cheque of Bank of Baroda, vide cheq ue No.000003 on 12-12-2012 and at the time of booking on 12-10-2012 an agreement was signed in between OPs and the complainant but the OPs did not return the said agreement after their signature has been made on it and in the above mentioned agreement at para 6.4.1 the OPs1 and 2 made a commitment that within 36 months from the date of obtaining the plan i.e. 25th July, 2012, the flat of the complainant will be handed over to them.
Subsequently, complainant gave another cheque of Rs.1,15,000/- to the OP3 as the OP3 claimed for the purpose of continuance of the construction work and that cheque no. was 269325 dated 05-11-2012 of Allahabad Bank, Barrackpore Branch on 07-11-2012 and that was encahsed by them.
Thereafter, complainant to observe the situation of the construction work to the spot and to see the construction site of the booked flat on or before January, 2014, after standing at the construction side it was found that no work was going on the land and it was a barren land only some domestic animals are roaming in the land. After observing such situation complainant was highly shocked and suffered very anxiety for whi9ch it was informed to the OPs1 to 3 but they verbally submitted that it is impossible to handover the flat within stipulated period of time and it was also stated that there was no guarantee whenever the flat will be handed over to them and it is nothing but a process of cheating and deficiency of service and cleanly a case of deceiving the complainant and in the above situation complainant prayed for cancellation of the same and with a prayer for refund of the deposit amount as per clause 6.9.2 but even after that OP did not refund the sum and harassed the complainant in so many manner for which complainant has prayed for compensation etc.
On the other hand, OP by filing written statement submitted that the entire complaint is false and fabricated and denied all allegation but admitted that complainant submitted cancellation application and they have claimed that there was no negligence, deficiency on the part of the OP and no doubt a lengthy written version consisting of 10 pages but nowhere there is any specific assertion about the decision against cancellation as made by the complainant but their only plea is that the onus is upon the complainant to prove and prays for dismissal of the case.
Decision with Reasons
After careful study of the complaint and written version and also considering the entire materials as produced by the complainant it is proved that complainant booked a flat being No.B4/2/E and initially complainant paid Rs.50,000/- on 12-10-2012 and balance amount of Rs.1,15,000/- was paid on 07-11-2012 along with another Rs.1,15,000/- for another flat and Vibgyor Housing Project Authority’s authorized signatory received the money and issued the receipt and same were not denied by the OP. Fact remains on 04-04-2014 complainant prays for cancellation of his booking of flat No.B4/2/E at Vibgyor Chandramukhi Abasan at Duttapukur and that was received by the Vibgyor Housing Ltd. but OPs have no answer in this regard what plan has been taken by the OP but truth is that cancellation has been made by the OP on 14-04-2014 and about refund of money OP was silent in the written version and cause of silence is known to Vibgyor Company is a well known cheat company in West Bengal after Sarada matter was well ventilated and Vibgyor is one of the organization of Sarada Gosti and Vibgyor authority or the owners are also arrested and sent in jail and fact remains in the written version there is no whisper whether they shall have to return it or not. Only assertion is that complainant shall have to prove it but there is not specific allegation against the complainant made by the OP for cancellation of the same. Truth is that no document is produced by the OP that construction has been completed or it is incomplete and at the same time it is proved that on 12-09-2014 notices were sent to the OPs for refunding of money but no answer was given and reply of the OPs against the question of the complainant is completely hazy, only ‘denied’ ‘denied’ etc. that means this OP has no moral capacity to defend the complainant and his allegation. Fact remains Vibgyor is well known company in the field of West Bengal and outside of the West Bengal for deceiving the intended purchaser of flats and complainant is one of them and fact remains he personally visited that spot and found there is no construction, no document is produced by the OPs that construction has been made and all the flat owners are occupying their flats. So, it is clear that OP has adopted an unfair trade practice and to deceive the complainant did not take any defence before this Forum only denied the claim of the complainant and asserted that the complainant shall have to prove it that means such sort of answer given only by dishonest businessman who have already swallowed the money of the public and not willing to refund it. Fact remains as per Clause complainant is entitled to get back the said amount as same has been cancelled on the ground no construction has been made and in the meantime the OP has collected huge amount from different customers like the complainant and many cases have been filed against that company before this Forum and in most of the case written version is similar to the present written version. Whatever it may be after hearing the argument of the Ld. Lawyer for the OP we have realized that OPs have no honesty, they have no doubt collected huge money from the market and there is no given flats for which many applicants prayed for cancellation because cancellation amount are not being paid but this Company is nothing but a company who has adopted unfair trade practice and cheated the public at large and at present some of their mentors are in the jail custody. Another factor is that OP has not produced the agreement and fact remains the agreement has been withheld by the OPs only on the ground in future complainant may not claim any flat because agreement is not there. But whatever it may be, when OP has failed to produce the agreement then it is clear that they took advance money of Rs.1,65,000/- from the complainant and OP must have to refund it when agreement is not produced by the OP and such sort of practice is unfair practice and OP has adopted such procedure in most of the cases and they have cheated the public at large by taking such defence manner and their defence is that complainant shall have to prove this that means it is no doubt a defence of a company who is known as a deceiver and in the above circumstances, we are convinced to hold that this complainant has been deceived by the OPs no doubt a cheat company who has cheated thousands of customers for which he has withheld the original agreement and has not produced it and for which we are convinced to hold that the complainant is entitled to get the entire advance amount of Rs.1,65,000/- which has been received by the OPs and OPs are bound to refund the same with interest at the rate10 percent p.a. over the same since the date of receiving the amount from the complainant and further for adopting unfair trade practice and to save the complainant in such a deceitful manner complainant is entitled to get a compensation and also litigation cost and when for OPs’ negligence, deficiency, deceitful manner of practice and unfair trade practice complainant is being harassed and suffers mental pain and agony including financial loss, this complaint succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OPs.
OPs shall have to refund of Rs.1,65,000/- received as advance amount along with 10 percent interest over the same with effect from 07-11-2012 and till its full payment.
Further for adopting unfair trade practice and for deceiving the complainant including other in such a fashion and for harassing the complainant and causing financial loss to the complainant OPs are directed to pay penal damages to the extent of Rs.30,000/- to the complainant.
To save the customer from the hands of such OPs and to control, unfair trade practice and deceitful manner of trade OPs are imposed penalty of sum of Rs.50,000/- which shall be deposited to this Forum and it is imposed to control the OPs in future so that they may not continue such sort of unfair trade practice and said amount if collected, shall be deposited to this Forum within one month from the date of this order.
OPs are directed to comply the order very strictly within one month from the date of this order failing which for non-compliance and disobeyance of this Forum’s order OP shall be prosecuted u/s.27 of the C.P. Act for which further penalty and fine may be imposed
