DIST. CONSUMER DISPUTES REDRESAL COMMISSION
NORTH 24 Pgs., BARASAT.
C.C. No. 107/2021
Date of Filing Date of Admission Date of Disposal
12.04.2021 03.01.2022 24.04.2024
Complainant/s:- | - Dr. Bhaskar Mukhopadhyay, son of Sri Pulak Mukherjee, residing at K-203, Fortune City, 155, Old Jessore Road, Madhyamgram, P.O. & P.S. Madhyamgram, Kolkata – 700132.
- Smt. Sweta Mukhopadhyay, wife of Dr. Bhaskar Mukhopadhyay, residing at K-203, Fortune City, 155, Old Jessore Road, Madhyamgram, P.O. & P.S. Madhyamgram, Kolkata – 700132.
=Vs= |
Opposite Party/s:- | - M/S Evanie Infrastructure Pvt. Ltd., a Company incorporated under the Companies Act, 1956, having registered office at 86, Golaghata, 1st Floor, Jamuna Apartment, VIP Road, behind Venkatesh Banquet, Kolkata – 700048 and also having its office at 594/1, Dakshindari Road, “Bima Abasan”, Flat No. E2/1, 1st Floor, P.O. Sreebhumi, P.S. Lake Town, Kolkata – 700048.
- Sri Supriyo Kumar Patra, son of Sri Asis Kumar Patra, Director, M/S Evanie Infrastructure Pvt. Ltd., a Company incorporated under the Companies Act, 1956, having registered office at 86, Golaghata, 1st Floor, Jamuna Apartment, VIP Road, behind Venkatesh Banquet, Kolkata – 700048 and also having its office at 594/1, Dakshindari Road, “Bima Abasan”, Flat No. E2/1, 1st Floor, P.O. Sreebhumi, P.S. Lake Town, Kolkata – 700048.
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P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT/FINAL ORDER
Complainant above named filed this complaint U/s 35 of the Consumer Protection Act, 2019 against the aforesaid Opposite Parties praying for refund of sum of Rs. 5,00,000/- alternatively to hand over the possession of the schedule property and make registration of the same, payment of Rs. 1,70,000/- being the interest @ 24% p.a. on the advance for booking of the flat to be calculated since 11/09/2019, compensation amounting to Rs. 1,00,000/-, litigation cost amounting to Rs. 50,000/- and other reliefs.
They alleged that O.P No. 1 is a Developer company and O.P No. 2 is Director of the said company. Complainants booked one flat and paid Rs. 5,00,000/- as advance.
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C.C. No. 107/2021
One agreement for sale dated 30/01/2018 was prepared. Complainants made several requests in connection with obtaining the mandatory registration under West Bengal Housing Industrial Regulation Act, 2017 and sanction of building plan but false assurance was given to the Complainants. Thereafter Complainants took attempt to meet with the O.P No. 2 with regard to completion of said construction and registration as well as possession of the said flat but he did not get any fruitful result. Hence, the Complainants filed this case praying for aforesaid relief.
O.P No. 1 and 2 appeared in this record and filed W/V and denied the entire allegations made in the petition of complaint contending inter-alia that the case is not maintainable. The Complainant has no cause of action, allegations are totally false. O.P No. 2 is no way connected with the O.P No. 1 / Company. It is the fact that Complainant and O.Ps entered into an agreement for sale of a flat in the concerned project and he was agreed to deliver the flat within 40 months from the date of agreement for sale but before completion of aforesaid period Complainants filed this case which is against the law. They prayed for dismissal of the case.
TRIAL
During Trial Complainant filed affidavit-in-chief.
DOCUMENTS
At the time of filing this complaint, Complainant filed the following documents:-
Copy of money receipt dated 01/02/2017 for the amount of Rs. 3,30,000/- and money receipt dated 18/01/2017 in respect of Rs. 1,50,000/-…..1 sheet Xerox.
- Copy of agreement for sale dated 13/08/2018 (which contains memo of consideration for the amount of Rs. 4,59,330/-)…..1 set Xerox.
- Copy of money receipt dated 04/09/2017 for the amount of Rs. 8,00,000/-…..1 sheet Xerox.
- Copy of money receipt dated 02/09/2017 for the amount of Rs. 2,00,000/-…..1 sheet Xerox.
- Copy of money receipt dated 28/05/2018 for the amount of Rs. 3,00,000/-…..1 sheet Xerox.
- Copy of money receipt dated 19/06/2018 for the amount of Rs. 2,00,000/-…..1 sheet Xerox.
- Copy of money receipt dated 20/07/2018 for the amount of Rs. 2,00,000/-…..1 sheet Xerox.
- Copy of money receipt dated 24/07/2018 for the amount of Rs. 3,00,000/-…..1 sheet Xerox.
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C.C. No. 107/2021
- Copy of money receipt dated 15/08/2018 for the amount of Rs. 4,00,000/-…..1 sheet Xerox.
- Copy of Postal Receipt……..1 sheet Xerox.
- Copy of Advocate’s letter dated 03/12/2019 addressed to Secy. W. B. HIRA.
- Information supplied by W.B. HIRA dated 10/12/2019.
- Copy of envelope……1 sheet Xerox.
- Copy of postal receipt…….1 sheet Xerox.
- Copy of postal receipt……..1 sheet Xerox.
- Advocate’s letter dated 03/12/2019 addressed to the Pradhan, Chandpur Gram Panchayat, Rajarhat.
- Information supplied by Chandpur Gram Panchayat dated 06/01/2020……9 sheets.
- Copy of envelope……..1 sheet.
- Letter issued to Evani Infrastructure Pvt. Ltd. by the Complainant No. 2 dated 11/09/2019.
- Letter issued by Complainant No. 1 and 2 addressed to the Director M/S Evani Infrastructure Pvt. Ltd.
- Postal Receipt……1 sheet Xerox.
- Postal Track report……..1 sheet Xerox.
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Complainant filed BNA.
Decisions with Reasons:-
We have carefully gone through the aforesaid documents. We have heard Ld. Advocate for the Complainant at length.
Previously Nilima Mukherjee and Sweta Mukhopadhyay filed this case against the Opposite Parties on 05/04/2021. Thereafter Complainant Nilima Mukherjee died on 31/10/2021 leaving behind her only son Dr. Bhaskar Mukhopadhyay as her only legal heirs. Thereafter, Dr. Bhaskar Mukhopadhyay was substituted in place of Nilima Mukherjee and Dr. Bhaskar Mukhopadhyay and Sweta Mukhopadhyay submitted amended form of petition of complaint.
On perusal of record we find that O.P No. 1 and 2 filed W/V. Complainant filed affidavit-in-chief on 14/06/2022. O.P not yet filed any affidavit-in-chief. Complainant filed BNA.
On 10/08/2023 was fixed for argument. On that date O.Ps prayed adjournment and that was allowed with cost of Rs. 500/-. Thereafter, O.P No. 1 and 2 not yet turned up in this record nor paid the aforesaid cost. Argument was heard from the side of the Complainant.
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C.C. No. 107/2021
Complainant stated in the petition of complaint that they paid Rs. 5,00,000/- as booking amount i.e. on 08/11/2017 Rs. 2,00,000/- by cheque no. 473864 and on 08/11/2017 cash of Rs. 3,00,000/-. Complainant stated in paragraph no. 10 of the complaint that O.Ps are bound to refund the entire amount of Rs. 5,00,000/- in their favour but they did not refund the same in favour of the Complainant.
On perusal of reply submitted by W.B. HIRA dated 10/12/2019 we find that aforesaid project namely Evani Econest has not been registered before W.B.HIRA. They further stated that vide NPR No. 00787 dated 23/05/2019 (Project namely Evani Econest Ph-1) the application has been returned to the applicant on 21/08/2019 for rectification.
On perusal of agreement dated 13/08/2018 we find that O.P No. 1 and 2 executed the sum in favour of Complainant No. 1 and 2.
Complainant stated in the petition of complaint that they paid Rs. 5,00,000/-. On perusal of receipt dated 01/02/2017 and 18/01/2017 we find that Complainant paid Rs. 4,80,000/-. Complainant produced some other money receipt but failed to prove connection of those money receipt relating to the aforesaid project.
In view of aforesaid discussion it is clear before us that Complainants paid Rs. 4,80,000/- in favour of the O.P No. 1 and 2 i.e. Rs. 3,30,000/- on 01/02/2017 and Rs. 1,50,000/- on 18/01/2017. We have stated earlier that aforesaid project not yet been registered before W.B. HIRA.
It is the allegation of the Complainant that they prayed for refund of aforesaid advance but O.P No. 1 and 2 not yet paid the same in their favour.
Aforesaid act of the O.P No. 1 and 2 are nothing but deficiency in service.
On perusal of record we find that Complainant is a consumer and O.Ps are the service provider.
Having regard to the aforesaid discussion it is clear before us that Complainants have able to established their grievance by sufficient evidence beyond reasonable doubt and they are entitled to relief as per his prayer.
In the result, present case succeeds.
Hence ,
It is
Ordered,
That the present case be and the same vide no. C.C./107/2021 is allowed on contest against the O.P No. 1 and 2 with cost of Rs. 5,000/- to be paid by O.P No. 1 and 2 in favour of the Complainants.
O.P No. 1 and 2 jointly and severally are directed to refund Rs. 4,80,000/- (four lakhs eighty thousand) along with interest @ 12% p.a. from the date of receipt of the said amount to till the date of refund preferably within 45 days from this day failing which Complainant shall have liberty to put this order into execution.
O.P No. 1 and 2 are further directed to pay compensation amounting to Rs. 1,00,000/- (one lakh) in favour of the Complainant preferably within 45 days from this date failing which Complainant shall have liberty to put this order into execution.
Let a plain copy of this order be given to the parties free of cost as per CPR, 2005.
Dictated and Corrected by me
President
Member President
