Date of Filing: 04/11/2022
Date of Judgement: 20/06/2024
Sri Manish Deb, Hon’ble Member
The case of the complainant in brief is that being attracted by advertisement published in well circulated daily newspapers, the complainant made enquiry through the contract numbers of OPs and in response to the said call one representative of the company namely Dharitri Infraventure Pvt. Ltd. visited the complainant herein named and successfully convinced the complainant about the project by providing him a brochure.
In response to the invitation forwarded by the representative of the company, the complainant herein named as also his wife visited the office of the company at the above mentioned address, the complainant with his wife ultimately with a desire to book a 2 BHK flat measuring about 600 sq.ft at Royal Enclave Project submitted a format application form as provided by the company and as per the provision deposited an application fee of Rs.200 and bank charges of Rs.300/- in cash at the office of the company as per their instruction and along with the same as required by the company deposited an amount of Rs.25,000/- by cheque on 10.08.2015 at the office of the company and also had to sign & fill up some papers and forms as per their instruction of the company/OPs.
It is to be mentioned here that on subsequent visit of the company/OPs by the complainant. OPs handed over the copy of the bank challans, photocopy of application form, along with photo copy of MOU and original money receipt issued by M/s. Dharitri Infraventure Pvt. Ltd., to the complainant from the copy of the bank challans it has been discovered that a cash amount of application fee of Rs.200/- and bank charges of Rs.300/- had been deposited at the United Bank of India under A/c No.0865050010122 of Dharitri Infraventure Pvt Ltd and the cheque amount of Rs.25000/- had been deposited at the UBI under A/c. No.0865050010113 if Dharitri Infraventure Pvt. Ltd.
Subsequently with the desire to book another 1BHK flat measuring about 350 sqft at the Royal Enclave project in the name of Smt Mithu Dey (being wife of the complainant herein named), a format application form was submitted as provided by the company and as per the provision deposited an application fee of Rs.200/- and bank charges of Rs.300/- in cash at the office of the company as per instruction of OPs and deposited an amount of Rs.25000/- by cheque on 18.08.2015 at the office of the company/OPs.
Subsequently on 15.10.2018 through a letter, the complainant was informed by the authorized signatory of the OP No.1 herein that the name of the complainant has been selected as an allottee through the process of lucky draw held at Swabhumi, Kolkata on 02.10.2015 and the complainant was directed to deposit some money and some documents to avail the allotment.
Getting the letter, the complainant went to the office of the OPs made enquiry about the whereabouts in respect of the booking made by his wife Mithu Dey and there he was intimated that her name has not been selected in the lucky draw and he was forwarded with an offer that the amount as deposited in the name of Mithu Dey can be taken back or can be adjusted with the payment of allotment of complainant himself.
Considering the situation, the complainant has agreed to adjust the amount with his payable amounts in respect of his allotted flat and asked the concerned authority to provide settlement receipt for the same. In reply, the concerned authority explained that the payment of the amount will be adjusted through the receipt of his document to be executed for complainant’s allotment and no separate receipt is required to be issued for the same.
Subsequently, the complainant paid a further amount of Rs.25000/- by cheque on 14.12.2015 and it was fixed that on 16.12.2015, a Memorandum of Understanding will be executed subject to payment of the MOU and Notary fees of Rs.800/- and deposit of some other required documents on 16.12.2015.
Thereafter on 16.12.2015, the complainant went to the office of the OP No.1 at 194 Canal Street, Kolkata 700048 and paid the amount of Rs.800/- as also deposited his documents as asked for and thereafter a typed document with the heading MOU was produced before him for availing his signature and as per the direction of the concerned office staff, the complainant put his signature in the MOU wherein he found that the booking amount of Rs.25,000/- which was paid by his wife Smt Mithu Dey towards booking of a separate 1BHK flat had been added to complainant’s payment of Rs.50,000/- in respect of the 2BHK flat and thereby showing the total payment of Rs.75,000/- as the payment for the 2BHK flat as booked by the complainant thereafter on detail checking of the document, the complainant observed several mistakes in the MOU and notified those to the concerned official of OPs. On availing of signature of the complainant, the concerned office staff of OP No.1herein informed the complainant that the document (i.e. MOU) will subsequently be handed over to him after rectifying the mistakes and completing the process of signature on behalf of the company.
Thereafter on 14.01.2016, the complainant was handed over with a letter dated 14.01.2016, from the sales coordinator of the OPs, intimating the complainant that a 350 sq.ft. flat has been booked and allotted in his name in the Royal Enclave Project at Hatisala and also requested complainant to make payment of further amount and along with the said letter he was also handed over with the above mentioned MOU having the notarization on 21.12.2015. After going through the MOU, the complainant observed that various anomalies mistakes are there in the document and the MOU itself was technically an incomplete one, which at that point of time the complainant brought into the knowledge of the concerned office staff of OPs who after making consultation with some higher authorities of the company, OPs made the complainant understood that everything arrangement will be rectified at the time of execution of the final agreement for sale and further asked him to deposit the required amount, so that the agreement for sale can be prepared and executed at an earliest possible time.
As per complainant, booking was made for purchase of a 2BHK flat measuring about 600 sq.ft. which reflects in the deposit challan as also in the money receipt dated 10.08.2015 of OPs, but in the letter dated 14.01.2016, the confirmation of allotment was mentioned in respect of 350 sq.ft. in the intimation letter for flat allocation, there was no whisper about the size of the flat, in the MOU at Page 5 of the schedule portion, the detail of the flat was written as a 1BHK flat having a super built up area of 1019 sq.ft. more or less, the complainant deposited a further amount of Rs.75,000/- by cheque.
Afterwards the complainant got an intimation over telephone that the company had postponed the above mentioned project ‘Royal Enclave’ and the complainant has been offered to have re-allotment of a 1BHK flat at another project of the company, namely Dharitri Universia and for the same he was asked to visit the new office of the company aqt DN-51, Merlin Infinite, 6th floor, Suite No.606, Sector–V, Salt Lake City, Police Station, New Town, Kolkata-700091, District North 24 Parganas for discussion, clarification and settlement.
The complainant had to accept of re-allotment of Flat in a separate project which to be launched by the OPs and was asked the complainant to deposit an amount of Rs.7,500/- as early as possible in the account of the A/c of the OPs as legal charge for preparation of document for the purpose of booking of the said flat and accordingly on 27.02.2017, the complainant deposited an amount of Rs.7,500/- in cash at the office of the OPs at Salt Lake City.
Ultimately on 19.05.2017, when the complainant reached to the present office address of Dharitri Infraventure Pvt Ltd./OPs on the basis of a telephonic intimation, the complainant was again provided with OPs’ typed copy of MOU to put his signature therein as per the direction of the office staff, wherein the complainant has observed that the area of flat has reduced to 300 sq.ft. and on the other hand the consideration amount has been enhanced and with a peculiar cancelation clause. On enquiry made by the complainant, the official of the company made complainant understand that due to a better and valuable project, the area of flat has been reduced and the consideration amount has been increased. Depending upon the situation as explained above and finding no other alternative, at that point of time, the complainant signed on the MOU dated 19.05.2017 and on the execution of MOU payment of Rs.1,57,500/- was adjusted as the advance payment towards the settled consideration amount and again complainant was not provided with the document, rather he was told that the MOU will be handed over to him after making the same notarized.
Subsequently the complainant got the document (MOU) with the notarization dated 25.05.2017, but he found no change and/or correction in the Document as he had pointed out at the time of putting his signature in the execution page like (i) the area as mentioned therein has not been described properly, whether it is the carpet area or built-up area or super built-up area , (ii) there is no schedule of payment process; (iii) there is no schedule of construction process; (iv) there is no memo/detail of the payment; (v) the term of cancellation is an unjustified and irrational one; (vi) in the MOU, there is no whisper about the transposition from one project to another project; (vii) there is no specific time limit for execution or agreement for sale and (viii) there is no proper representation of the Directors as named in the Document (i.e.in the MOU).
Payments till date, Rs.1,65,350/- has been paid by the complainant for the said flat.
Be it further mentioned here that the complainant had to visit the project site and also identified the site and at the local various persons of the locality also identified the project site and then complainant got the information about the status of the project, the complainant witnessed that nothing has been initiated towards the materialization of the project by the company i.e. OPs .
The complainant on 16.12.2019, personally sent a letter of enquiry asking for clarification of the disputes as mentioned above, which were served individually upon all the opposite parties, but OPs unfortunately OPs made no reply which clearly established that a fraud and unfair trade practice on the part of the OPs took place, as also deficiency in services are there on the part of the OPs.
Getting no communication and/or response from the company, the complainant again visited the project site on March, 2020, with the intention to look whether any development has been made by the OPs, but again unfortunately witnessed that there is nothing progressed at the site of the project to be considered as any positive movement of the project.
Thereafter the complainant through his Ld Advocate immediately sent letter dated 29.06.2020, through Speed Post to M/s Dharitri Infraventure Pvt Ltd./OPs, as also to Sri Suman Jana and Smt. Dipanwita Samanta at their respective known addresses, asking them to ‘show cause’ in writing and to clarify the situation of the project within 30 days from the date of receipt of the notice dated 29.06.2020.
The Opposite Parties neglected to showing any cause in any way whatsoever to the Ld. Advocate of complainant towards the status of the Project and in the meantime as per the MOU dated 19.05.2017, the company was supposed to make delivery of the flat within 42 months from the date of execution of the said MOU. Therefore the date of delivery was within 18.11.2020, which has already been passed.
The complainant could not be able to get any knowledge of subsequent development of the project site and thus on 23.08.2022 the ultimate notice has been sent, through his Ld. Advocate to OPs but the notice sent to M/s. Dharitri Infraventure Pvt Ltd./OPs at its Canal Street address has been returned.
As usual neither the opposite parties i.e. the company itself nor its Directors cared to reply to the letter of the complainant and complainant observed that no development towards the construction has been made and the Project is lying at the same condition as before.
The complainant, thus finding no other alternative has filed the instant complaint case before this Hon’ble Commission to have relief and justice against the OPs as also its Directors.
The service of notices are satisfactory towards OPs, the Commission has been pleased to proceed with the matter as exparte and in this context, non-appearance and non-contesting attitude of the OPs considered to be adverse inference against them.
OBSERVATIONS
Our observation is that it has been averred in the complaint petition, the Opposite Parties has launched a project under Name & Style “ROYAL ENCLAVE” and by the exaggerated advertisement and the assurances given by the representative of the opposite party builders that the project would be a model project with modern facilities and the physical possession of the units would be handed over to the allottee within stipulated period as mentioned in MOU. The complainant booked a flat by advancing of Rs.25,000/- for residential purpose, cheque dated 10/08/2015. And the MOU was signed by the complainant
It was also alleged that one separate booking of flat in said project was in the name of Complainant’s wife and for the said flat also the OPs has taken booking money but declined to allot any unit in her name. it is also contended that booking money of wife of complainant adjusted with the advance money or consideration money of the flat of the complainant.
It was alleged that the terms and conditions of said was unfair and one sided.
Furthermore it is alleged that despite repeated request, the opposite party /builder failed to provide possession after completion of the project at ROYAL ENCLAVE, as the project has been postponed and the complainant reallocated a one BHK flat at another project of the Opposite Parties /M/s. DHARITRI INFRAVENTURE PVT LTD’ situated at Mouza- Bhagabanpore, J.L. No.10,P.S. : Kashipur, Khatian No.572, Dag No.2498 & 2497 , Flat measuring 300 sq.ft. on the 5th floor, Block-7.
The complainant finding no other alternative chose to book the ne allotment at high rice with a measured flat instead of the measurement of the flat initially booked, but complainant had to sign a new MOU with opposite parties. As the complainant alleged that it is a fact that the opposite parties are wise very much reluctant to comply with terms and conditions of the signed MOU i.e. agreement and commitment.
The primary work on the project site on the date on complaint, seems to be not started, primary construction works for a project was also not done.
Considering the such unethical activities on the part of OPs, the complainant treated it as a deficiency in service and unfair trade practice on the part of the opposite party/developer, thus the complainant has filed the present complaint seeking completion of the project and declining of the possession of the flat.
Opposite parties have not contested the present case and has raised no objection in respect of the complainant inspite of their scope to file written version.
The complainant has duly filed his evidence by way of Affidavit-in-Chief and written version with written argument.
We have perused the material available on record and heard the counsel for the complainant.
CONCLUSION
The complaint petition is filed within two years from the date on which the cause of action has arisen.
The commission has territorial jurisdiction to decide the present complaint as the complainant has been residing at Badamtola More, P.S. Bansdroni, Kolkata – 96, District- South 24 Parganas.
The complainant is a ‘Consumer’ as defined under the Consumer protection Act, 2019.
The opposite parties are deficient in providing its services to the complainant in providing its services to the complainant as the opposite party has given false assurance to the complainant with respect to time for delivering of possession of the flat in question.
Hence it is
ORDERED
Keeping in view the facts of the present case and the extensive law as discussed above, we direct the opposite parties to complete the project immediately and deliver the possession of one flat being No. F measuring 300 sq.ft. on 5th floor of Block-7 of Dharitri Universia Housing Complex at Mouza – Bhagbanpur, R.S. Dag No.2498 & 2499 appertaining to the R.S. Khatian No.573, J L No.10 P.S. Kashipur under the ambit of Bhaganpur Gram Panchayet as stated in the schedule of complaint petition alternatively Opposite Parties are directed to return the amount paid by the complainant i.e. Rs. 1,65,350/- with interest @9% p.a. from the date of agreement within 60 days from the date of this order.
And opposite parties are also directed to pay Rs.50,000/- cost for mental agony and harassment to the complainant and pay Rs.10,000/- as litigation cost to the complainant within 60 days from the date of this order.
The complaint case being No.CC 622 of 2022 stands disposed of in terms of aforesaid judgement.
Directed and corrected by me
Member
