Date of Filing: 05.03.2019 Date of Disposal: 17.05.2023
Complainant : Miss Chinu Jasmine, D/O Sk Mohammad Isha, resident of 154/1, Khagragoria, G.T. Road (N), behind Rudra-Hero Honda Show Room, P.O. Rajbati, Town & P.S. Burdwan, Dist. Purba Bardhaman, Pin-713104.
-VERSUS -
Opposite Party : 1. M/S Mahima Vanija Private Ltd., Represented by its Director, having its office at Chotonilpur Madhyapara, P.O. Sripally, Town & P.S. Burdwan, Dist. Purba Bardhaman, Pin – 713103.
: 2. The Director, M/S Mahima Vanijya Private Limitd, having its Registered office at 23 A, Netaji Subhas Road, 1st Floor, Kolkata-700001.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
: Mr. Atanu Kr. Dutta. - Hon’ble Member.
Appeared for the Complainant : Suvro Chakraborty, Ld. Advocate
Appeared for the Opposite Party : Srimanta Chandra, Ld. Advocate
F I N A L O R D E R
On 05.032019 the complainant Miss Chinu Jasmine has filed an application u/S 12 of the Consumer Protection Act, 1986 against the OPs.
The case of the complainant, in brief, is that on 08.03.2018 one agreement was executed in between the complainant and OPs for purchasing a flat at Rs. 20,00,000/- measuring about 750 sq ft and the OPs agreed to complete and deliver the said flat within 18 months from the date of such agreement. As per agreement the complainant paid Rs. 2,00,000/- to the OPs on 07.03.2018 and on 20.03.2018 vide cheque No. 860663, 860662 and 884819. In respect of that payment the OP No.1 issued money receipt in favour of the complainant.
After making payment on 20.03.2018 the complainant started to face with some personal problem as well as financial stringencies. As such by getting no other alternative, set up her mind to cancel the booking of flat as she agreed to purchase. Therefore the complainant over telephone intimated the matter to the OPs and the OPs asked her for sending the request of cancelation in writing. Complainant sent the letter dt. 30.03.2018 requesting the OP No.1 to cancel the booking of flat, as mentioned in the schedule below and also requested to refund the paid amount of Rs. 2,00,000/- in her favour. The complainant sent that letter through Registered Post. It is further stated that she is entitled to get return of the paid amount as she cancelled the booking and complied all the formalities as per direction of the OPs, in spite of that the OPs kept themselves mum regarding settlement of the dispute. Moreover in spite of receiving the intimation for cancellation of booking and refund of money, the OPs did not take any step in that regard. It is pertinent to note that within one month the complainant cancelled the booking but the OPs, instead of refunding the paid amount, are enjoying the money of the complainant. Being a consumer, the complainant never did any act detrimental to the interest of the OPs. But the OPs only for harassing her did not take any step. This conducts of the OPs are deficiency in service and unfair trade practice.
The cause of action arose on and from 30.03.2018 and continue.
Upon this back ground, the complainant prayed for passing an order directing the OPs to refund the paid booking amount of Rs. 2,00,000/- along with interest @ 18% p.a. from 30.03.2018 till the date of realization along with a direction to pay sum of Rs. 2,00,000/- as compensation for mental pain , agony and harassment suffered by her and litigation cost of Rs. 50,000/- .
The OP Nos.1 & 2 have contested the case by filing Written Version denying all the material allegations, contending inter alia that the complainant has no cause of action to the case and that the complaint is defective one and it is not maintainable in its present form and prayer and that the complaint is bad for non-joinder of necessary parties.
The specific case of the OP Nos.1 & 2 is that one Rekha Davi Surekha is the owner and possessor of the piece and parcel of the land, be the same a little more or less.
It is stated further that land owner of the property as well as the OPs herein are already agreed with the developer herein by way of deed of development agreement for developing the aforesaid premises by constructing a multistoried building containing several self-contained flats or apartments, and open car parking spaces.
The development agreement that it shall be the responsibilities of the developer herein to complete the development and construction within the prescribed time of possession of the property and on the completion of the said building as per plan sanctioned by the Burdwan Municipality and after completion of the said building shall execute necessary conveyances in favour of the intending purchasers assigns or assignees etc. through constituted attorney.
The OPs and the land owner on 08.03.2018, an agreement was executed in between the complainant and them and to purchase a flat of 750 sq. ft amounting to Rs. 20,00,000/- and the complainant visited the flat to purchase and agreed to purchase the same and the complainant paid Rs. 2,00,000/- to the OPs on 07.03.2018 and 20.03.2018 by the cheques mentioned in the complaint.
Those allegations are baseless. The OPs also pointed out the Clause No.8 of the agreement for sale in his written version in Para 15. He also pointed out the Clause No.11 of the agreement dt. 20.03.2018 in respect of arbitration Clause. Upon this background OP Nos.1 & 2 claim to dismiss of the case.
Findings with Reasons
Complainant filed evidence-on-affidavit and the OPs filed questionnaires. The complainant also filed reply to the said questionnaires. The W/V filed by the OP Nos. 1 & 2 has been treated as evidence-on-affidavit. Thereafter the case was fixed for hearing of arguments. The complainant has filed W.N.A. The OPs also filed W.N.A.
Perused the complaint, evidence-on-affidavit, W/V, Xerox copies of documents and W.N.A.
It is the case of the complainant that he made an agreement on 08.03.2018 with the OPs to purchase a flat measuring about 750 sq.ft. and paid advance money of Rs. 2,00,000/- by three cheques on 07.03.2018 and 20.03.2018. The Xerox copies of agreement disclosed that on 08.03.2018 an agreement was made in between the parties for purchasing a flat measuring about 750 sq.ft. valued at Rs. 20,00,000/- and the Xerox copies of money receipt issued by Mahima Vanijya Private Ltd. i.e. OP No.1 issued money receipt dt. 07.03.2018 and 20.03.2018 in three cheques amounting to Rs. 2,00,000/-.
Thereafter the denial of this fact by the OPs in his W/V which has been treated as evidence-on-affidavit cannot be believable at all.
It is also the case of the complainant that with some personal problem faced by the complainant as well as financial stringencies by getting no other alternative set up her mind to cancel the booking of flat and firstly she intimated the said matter to the OPs over phone and as per instruction of the OPs, the complainant vide her letter dt. 30.03.2018 sent through Registered Post requested the OP No.1 to cancel the booking of flat and also requested to refund the paid amount for her favour but the OP did not pay any heed to the request of the complainant. As such, the complainant finding no other alternative, but to lodge this against the OPs.
It is also crystal clear that the OPs received the letter dt. 30.03.2018 sent by the complainant through Registered Post but the OPs gave statement in the W/V that they did not receive the said letter. From the copy of the letter dt. 30.03.2018, it is clear that the complainant requested the OP for cancellation of the booking of the flat in question and refunding of advance money and also Xerox copy of the Postal Stamp it is found that the said request letter has been received by the OPs. But in spite of receiving the said letter they tried to make false statement that they did not receive the request letter for cancellation of booking flat and refunding the earnest money i.e. advance money of Rs. 2,00,000/-.
The complainant thereafter also cancelled the booking of the flat and it was made within the month after the execution of the agreement in between the parties on 08.03.2018. This story of the complainant cannot be thrown away at all though the OPs deny the same in their W/V as well as evidence. The documents were filed by the complainant in respect of the payment of Rs. 2,00,000/- and cancellation of booking and refunding of money as spoken the truth.
In support of the claim of the complainant, Ld. Advocate for the complainant cited a decision reported in 2022(1) CPR 92 (NC) [CC/277/2019 decided on 08.12.2021] wherein the Hon’ble National Commission pleased to hold OP builder is liable for their deficiency in service and unfair trade practice as they have not refunded the paid amount in spite of receiving request of cancellation from the end of the flat purchaser and they are liable to refund the paid amount along with interest and compensation.
The OP in their written version as well as evidence pointed out that there is an arbitration clause in the agreement and without availing the arbitration clause the complainant has no right to file the case before the Consumer Commission. In this regard the Ld. Advocate for the complainant wants to rely upon a Judgment so passed by the Hon’ble National Commission in M/S Magma Leasing Limited vs Shri Bharat Singh case, [RP/109/2007, decided on 13.08.2012] by covering several judgments of Hon’ble Supreme Court of India where the Hon’ble Commission pleased to held that mere presence of Arbitration Clause in the agreement cannot bar before Consumer Forum and accordingly the complainant is entitled to get refund of Rs. 2,00,000/- (Rupees Two lakh only) along with at least 10% interest upon the said amount from 30.03.2018 till realization. Therefore it can be said that mere presence of Arbitration Clause in the agreement cannot bar before Consumer Forum.
In the present case, the OPs gave instruction to file written request for cancellation of booking of flat and refunding of the amount though the complainant informed the matter verbally over telephone. The OPs in their Written Notes of Argument pointed out several decisions which have been reported in 2009 (3) CPR (NC) 309, reported in 2014 (40) CPR (NC) 60 and in decision reported in 2016 (4) CPR (71) and stated that in every Judgments it was very clearly mentioned that after deduction of the expenses by the developer and as per the Agreement for sale for the purpose of flat which was cancelled by the complainant, have returned back the amount taken as advance for the flat as per terms and conditions laid down in the Agreement for sale. But Ld. Advocate for the OPs did not file those decisions of the Hon’ble NCDRC and State Commission. Furthermore from the inception of the agreement dt. 08.03.2018, the complainant on 20.03.2018 informed the matter over telephone to the OPs for cancellation of the booking and as per their instruction on 30.03.2018 he sent a letter for cancellation and request for refunding the advance money of Rs. 2,00,000/-. The OPs could not establish within this period from 08.03.2018 to 20.03.2018 or 30.03.2018 what has been expended by the OPs for the said flat.
Therefore this case is totally different and the determination of the expenses by the developer of Agreement for sale could not be granted.
Having considered the materials on record and discussion made above we are of opinion that the OP Nos. 1 & 2 committed deficiency in service and unfair trade practice and they are also liable to make compensation to the complainant suffered for mental pain and agony and harassment.
As a result the case succeeds.
Hence, it is
ORDERD
That this case be and the same is allowed on contest against the OP Nos. 1 & 2 but without any cost. The OP Nos. 1 & 2 are jointly and severally liable in this case.
The OP Nos. 1 & 2 are directed to refund the paid booking amount of Rs. 2,00,000/- (Rupees Two Lakh only) to the complainant along with interest @ 10% p.a. from 30.03.2018 to till date of realization jointly and severally within 45 days from the date of receipt of the order. They are also directed to pay compensation of Rs. 30,000/- (Rupees Thirty thousand only) for mental pain, agony and harassment suffered by the complainant and litigation cost of Rs. 10,000/- (Rupees Ten thousand only). They are also directed to pay those by A/C Payee Cheque to the complainant within 45 days of the receipt of the order failing which those amount shall carry further interest @ 10% p.a. till realization.
Let a copy of this order be given to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C, Purba Bardhaman. D.C.D.R.C , Purba Bardhaman.
