This is a complaint under section 12 of the Consumer s Protection Act 1986 filed by the complainants Swapan Kumar Chakraborty and Smt Indrani Chakrbroty wherein it is contended, interalia, to the effect that the O.P. no1 is a developer/promoter and O.P. nos 2to 6 are the partners of the said O.P.no1. The O.P. no.s 2 to 6 started construction on the land comprise in Holding Nos. 1/48,1/A/48,1/B/48 of Ward No.6 of Jalpaiguri Municipality  belonged to one Jogendranath Kunda  & Smt. Belarani Kunda whose legal heirs entered into a Memoranum of Agreement on 01.02.2006 with the O.P. no1  Thus, O.P. nos. 2 to 6 represented the O.P.no.1 and entered into an agreement with the complainants to sale a flat measuring about 904 sqft. With built up area and that flat is known as Flat no F 4/4 situated on the fourth floor of Block A along with lift facility and common space of 135.6 sq ft. on 04.02.2011 by virtue of said agreement the O.Ps. intended to sale the said flat in favour of the complainants at a consideration of Rs. 9 (nine) lacs. By virtue of the said agreement for sale dated 4.2.11 the complainants paid an earnest money of Rs. 60,000.00 by anAccount Payee cheque dated 4.2.11 and another sum of Rs. 40,000.00were paid by the complainants in favour of the O.Ps. by an Account Payee Cheque dated 12.02.11. Thus  on 22.04.11 the O.Ps. took Rs. 1,00,000.00 by A/C Payee Cheque. Thus O.Ps. took total  advance of Rs. 3,00,000.00 from the complainants But  the O.Ps. neither completed the work nor took any resort to complete the construction of said flat inspite of repeated requests of complainants and did not put the collapsible gate in front of the said flat etc. etc. And thus the said flat isnot in a positionfor human habitation. Moreover, the O.Psneither gave any notice of completion of the work of the said flat and nor demanded any balance consideration money of the said flat to complete the saidmatter and thus the very conduct of the O.Ps.  clearly indicate the deficiency in service on the part of the O.Ps. Hence this case.

The O.P. no.s 2 to 6 as partners and representatives of O.P. No.1  contested this case by filing a written version and denied all material allegations of the complainants as alleged against the O.Ps.  It is specifically  contended , interalia, in the written version to the effect that during continuation of the work of the flat in question some disputes were cropped ;up between the O.Ps. and O.P. nos. 3, 4 & 5 due to fulfillment of activities for which the several cases have been pending. Inspite of pending of those cases the present oPs. Performed their duties sincerely andmost of the flats of the  said premises were delivered to the several purchasers. As the complainants are very much reluctant to pay the balance consideration money the said transaction was not completed due to fault of the complaikants and as such there is no cause of action to lodge this complainant which is liable to be dismissed with cost. Moreover, it is further specific  case of the O.Ps. to the effect that according to ArbitrationCl;ause  as found in the Deed of Ageement for sale the present dispute should be referred toArbitrator  as per provision of ArbitrationandConciliation Act. In the circumstances, the O.Ps. have prayed for dismissal of the case with cost.

Under the above averments both parties went on hearing with the following points:

1        Are the complainants entitled to get any relief as sought for ?

       2.   To what other relief or reliefs are the complainants entitled to ?

DECISION WITH REASONS

Point No.s 1 and 2 :  

Both the points are taken up together for consideration for the sake of convenience as they are interlinked and inter related.

Admittedly, the agreement for sale was executed by the O.Ps.  after having the earnest money from the complainants. It isalso admitted that according to the said agreement for sale the sale procedure and transaction have not been completed as yet.

The moot question is whether inspite of having earnest money from the complainants the O.Ps. are reluctant to execute the sale deedto transfer the flat in question in favour of the complainant after having the balance consideration money from the complainant. It reveals in documentary evidence that the earnest money of Rs. 3,00,000.00 have been received by the O.Ps. from the complainant. The O.Ps. could not adduce any satisfactory evidence to the effect that the complainants are reluctant topurchase theflat and/or the complainants are not in a position to pay of the balance consideration money etc. etc.

In course of hearing argument the learned representative of the O.Ps. has argued that as there was an Arbitration Clause in the sale agreement the complainants are not entitled to get relief as sought for in this Forum and as such the matter in dispute should be referred to the Arbitrator for proper arbitration and conciliation and consideration. But as per guidance as revealed in 1999(1 CPJ) page 67(N.C.),2006(2 CPJ) page 259and 2004 (4CPJ) page 51  we are inclined to opine that mere Arbitration Clause as found in the agreement should not be in anyway barrier to the aggrieved party(like this complainants) from sicking relief under C.P. Act which is a special piece of  legislation to protect the interest of consumer.This being the position we are inclined to hold that as the complainants are very much annoyed on the conduct of the O.Ps., they should not be debarred from getting reliefs from this forum.

Considering the circumstances we are inclined to hold that the complainants haveadduced sufficient materials by which they are entitled to get reliefs as sought for.

In the result, the case succeeds.

Hence, it is

O r d e r e d

That the C.C. No. 52/2012  under section 12 of the C.P Act, 1986 filed bythe complainant Swapan Chakraborty and Smt. Indrani Chakraborty  be and the same is decreed on contest against the O.Ps. with cost of Rs. 5,000.00to be paid by the O.Ps. in favour of the complainants.

The O.Ps. are hereby directed to return the said earnest money of Rs. 3,00,000.00 along with interest @ 10% p.a. from the date of receipt of the same till payment of the said amount in favour of complainants.

The O.Ps. are further directed to pay  a sum of Rs. 20,000.00 as compensation to the complainants for their mental agony and physical sufferings.

The O.Ps. are further directed to deposit a sum of Rs. 5,000.00 in favour of State Consumer Welfare Fund within one month from this date.

The O.Ps. are further directed to liquidate the entire decretal  amount within one month from this date failing which the complainants will be at liberty to recover the said decretal amount along with interest @ 10% p.a. to be calculated from the date of payment of the earnest money till recovery  of the entire decretal  dues by filing a separate proceeding against the O.Ps. according  to law.

In view of our above findings and order the O.Ps. are here by directed to restrain themselves from disposing of the flat in question till the fulfillment of the abovementioned order.