This is a complaint made by one Smt. Sucharita Dutta wife of Mr. Nirmal Dutta, residing at Flat No.3C, 3rd. Floor, 7A, Adi Ganga Road, P.S. Bansdroni, Kolkata- 700070 against M/s. Desire Agro Resorts Development Pvt. Ltd., P-525, Hemanta Mukherjee Sarani, P.S. Tollygunge, Kolkata-700029 and Mr. Asoke Bose, Managing Director praying for refund of application money and registration money in respect of plot/flat and also booking money for shop totaling Rs.1,43,004/- + Rs.2,42,000/- and damages to the tune of Rs.8,00,000/- and Rs.20,000/- litigation cost.
Facts in brief are that OP No.1 is a registered company and engaged in land development activity. OP No.2 is Managing Director to OP No.1. Complainant being attracted by the offer of OPs deposited a sum of Rs.1,43,004/- commencing from 31/7/2004 in installment for booking a plot at Middle Town and the said plot was marked as B-145. But Complainant did not receive any response despite repeated reminders. Suddenly OPs wrote a letter to the Complainant offering a flat measuring about 650 Sq. ft. sometimes in the year 2012. Complainant visited the OP’s office and recorded her consent as per the terms after the plot of 325 Sq. ft. per Katha conversion formula. OPs remained silent for more than a year and half. They once again wrote a letter to the Complainant that they are going to enter into development agreement with a well known developer, Heritage Group in a joint venture.
Complainant during these periods of two and half years made several telephonic calls but did not receive any response. Complainant was denied the flat instead of plot and also was deprived of getting possession of a shop measuring about 500 Sq. Ft. on the ground floor was at Sun City, Pailan inspite of receiving Rs.2,42,500/- through installment. All the payments was duly acknowledged by the OPs. Complainant made several representations for getting the flat and the shop room but of no use. So Complainant filed this case.
OPs filed written version and denied all the material allegations of the complaint. OPs have stated that the case is barred by the Provisions of Limitations Act. Statements made in paragraph 10 to 13 are also denied. Complainant has also paid Rs.2,42,500/- and Rs.4,7,500/- is still due. OPs prayed for dismissal of this case.
On the basis of above facts the complaint was admitted and notices were issued to which OPs made appearance.
Decision with reasons
Complainant filed affidavit-in-chief wherein she has reiterated the facts mentioned in the complaint petition. OPs filed questionnaire against affidavit-in-chief against which OP filed evidence-in-chief to which Complainant filed questionnaire and OPs have replied.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the complaint it appears that Complainant has prayed for refund of Rs.3,85,004/- with 15% interest p.a. In this regard on perusal of the written version it appears that Complainant has paid only Rs.2,42,500/-. There is no admission whatsoever about acceptance of Rs.1,43,004/- .
On behalf of the Complainant some Xerox copy of the receipts have been filed which appear that in installment Complainant has paid some amount to Middle Town. No original receipt has been filed. These Xerox copies do not make it clear as to how much Complainant paid. Since OP has admitted that the receipt Rs.2,42,004, Complainant shall only be entitled for this money.
Ld. Advocate for OP raised three objections to the admission of this complaint and also the reliefs sought by the Complainant.
At the first place Ld. Advocate submitted that this Forum does not have jurisdiction to adjudicate this complaint and this complaint can be adjudicated before C.D.R.F. Unit 1. However, on perusal of the cause title of the complaint it is clear that address furnished of the OPs fall under Tollygunge P.S. and so the submission of Ld. Advocate for OP cannot be accepted.
Ld. Advocate further submitted that complaint reveals that shop room was booked which is only use for commercial purpose. This submission of Ld. Advocate does not appear to be justified. In view of the facts that there are plea who earned their livelihood by running a shop. There is no evidence to establish that the shop room sought for was for the purpose of commercial use.
Ld. Advocate for OP made such submission and so it is his duty to prove this fact which he did not do. So this submission also cannot be considered.
Finally, Ld. Advocate for OP submitted that the agreement mentioned as the cause of action for filing this complaint would have arisen after 78 months of the agreement. Duly agreement was entered on 12/7/2011 and if 78 months is calculated it comes to December, 2016 but here the complaint has been filed in February, 2016.
In paragraph 6 of the Xerox copy of the agreement it is clear that the construction of the building duly started after a period of 48 months from the date of payment of booking amount and will be completed within 30 months from the date of commencement of construction. This mean that this 78 months have to be counted from the 1st payment of booking money which Complainant paid in the year 2004. As such this submission also does not have any leg to stand.
In view of the above discussion it is clear that OPs are bound to refund Rs.2,42,500/- to the Complainant.
The prayer for compensation and litigation cost is not allowed in view of the fact that Complainant has not made out a case of compensation and also litigation cost which reveals from the allegations mentioned in the complaint.
hence,
O R D E R E D
CC/92/2016 and the same is allowed in part on contest. OPs are directed to refund Rs.2,42,500/- to the Complainant within 2 months of this order, in default, the amount shall carry interest of 10% p.a.
