This case has arisen out of application U/s 35 of the Consumer Protection Act, 2019.
The case of the complainant is that for intending to purchase a flat on the scheduled land vide J.L.No:113 Mouza: Baruipur, P.S:Baruipur, R.S:3630, R.S Plot No:3634, R.S Khatian No:115, District:South 24 Parganas under Ramnagar Gram Panchayet in the year 2016 in the month of September the complainant executed a contract with the O.Ps who is a private company & partnership firm dealing with various abasan and flat sale, on 25th September, 2016 with paid advance money of Rs.3,20,000/- only, accordingly, the O.P concerned issued money receipt on same day in favour of the complainant.
After that the O.P concern assured to the complainant to hand over the flat after completion of the flat immediately & executed the sale deed. After lapsing long period the complainant always contacted to the O.P’s concern & requested to solve the mater as early as possible but in the year of 2019 in the month of April the complainant came to know that the developer/O.P concern did not start the flat upon the scheduled land.
The complainant contacted with the O.Ps to solve this matter but no action has been taken from the ends of the O.Ps. With no other alternatives the complainant sat on DHARNA in the month of March, 2022 in front of the office of the O.P concern to refund the said amount and then O.Ps concern was bound to issue the said amount with 06 nos of cheque of Punjab National Bank, Kolkata in favour of the complainant as refund the advance money. After receiving the said cheques the complainant deposited to the bank on 24.03.2022 but the cheques returned due to insufficient fund in the said account.
Lastly with no other alternatives the complainant was bound to file complaint before the AD, CA & FBP at Raiganj but no action has been taken by the O.P concern.
In the circumstances, the complainant prays to pass an order to refund the deposited amount of Rs.3,20,000/- with interest @10% per annum from the date of deposit till payment from the O.Ps & Rs.2,00,000/- for compensation due to physical, mental pain and professional loss & also Rs.50,000/- for litigation cost from the O.P.
The O.Ps concern remain absent after receiving the notice. The Advocate of the complainant submits postal track consignment report which shows (item delivery confirmed), the case was run ex-parte against the O.Ps.
Points for Consideration
- Whether there was any latches or deficiency of service & unfair trade practice on the part of O.P?
- Whether the petitioner is entitled to get relief(s) as prayed for?
D e c i s i o n W i t h R e a s o n s
The complainant Swapna Paul as P.W.1 deposed that there was a contract between O.P concern and herself for purchasing a flat & she paid advance money of Rs.3,20,000/- only, accordingly the O.Ps concern issued a money receipt on 25.09.2016 in favour of the complainant. The complainant filed the xerox copy of said agreement but there was no specific description of flat to be sold, only “Added Areas”, “Appurtenances”, “Association”, “Building premises”, & “Common areas and Installations” are defined in Section:1 but Part:I or Part:II or any schedule is/are not added. Swapna Paul signed as purchaser and authorized signatory of the vender signed with seal of the O.P concern. Ajit Kumar Paul was signed as witness to the agreement & money receipt, which bears signature of the vender by authorized signatory with seal of O.P concern. On the same day separate money receipt No:411 of Rs.2,00,000/- was issued by O.P concern in favour of Swapna Paul (Complainant) on A/c of booking 1k Row house in Mytown, application no:106, by Cheque No:648570 on S.B.I on 26.09.2016.
Money Receipt No:328, dated 02.06.2016 of Rs.15,000/- paid in cash by Ajit Kumar Paul issued in his favour on A/c of booking of flat 315 sq. ft, with condition that if you book within 02 month by 20% then will give Rs.50,000/- discount in amenities charge. Money Receipt No:221 of Rs.60,000/- dated 30.08.2016 was issued by O.P to Ajit Kumar Paul paid by cheque No:648567/S.B.I Bank. On which account it was issued that has not been mentioned. However, we have no concern with Money Receipt No:328 & 221 issued to Ajit Kumar Paul as he is not complainant of the case.
Xerox copy of application for refund of money was received by O.P concern on 26.08.2019 depicting applicant’s name Swapna Paul, W/o: Ajit Kumar Paul, Ground of Claim: Project not yet started, amount of refund applied: Rs.3,20,000/-. In declaration name of Swapna Paul/Ajit Kumar Paul were entered bearing signature of Ajit Kumar Paul as applicant for Swapna Paul.
The complainant Swapna Paul also filed the application dated 26.08.2019 to the O.P concern praying for refund of earnest/advance money of Rs.3,20,000/-.
In perusing the documents filed by the complainant the xerox copy of cheques bearing No:725366, 725367, 725363, 725364, 725365, 725368 issued by the O.P concern, it shows that the cheques were in the name of Ajit Kumar Paul, who is not the complainant, are irrelevant in the present case. He may take legal recourse if desires.
Xerox copy of document filed by the complainant shows Ref No: this office complaint No:78/Real Estate/2022, dated 10.05.2022 and this office Memo No:271/CA/UDJ dated 19.05.2022 & subject: Reminder letter in respect of the complaint of Sri Ajit Kumar Pail against your organization (O.P) in the matter of alleged deficiency in service and unfair trade practice, vide Memo No:365/CA/UDJ dated 30.06.2022, followed by subject: Complaint of Ajit Kumar Paul to O.P signed by AD, CA & FBP UDJ vide Memo No:271/CA/UDJ, dated 19.05.2022, which was ended fruitless.
We find last communication i.e filled in printed application for refund of money of the complainant as well as hand written application for refund of earnest/advance money both dated 26.08.2019 with the O.P concern & within statutory period of 02 years the as the complainant did not file consumer complaint, the present complaint is barred by law of limitation. Complaint of Ajit Kumar Paul to AD, CA & FBP UDJ cannot overcome the same.
In the result the case fails.
Hence, it is
O R D E R E D
that the C.C-05/2023 be and the same is dismissed ex-parte against the O.P but without cost.
Let a copy of this order be given to the complainant free of cost.
