Date of Filing : 03/11/2020

Date of Judgement : 28/12/2023

Sri Sudip Niyogi, Hon’ble President

                                                              Brief Facts

The petitioners, who are the spouses of each other having two sons, autistic differentially able/mentally disabled since their birth were much worried for the future of their sons, agreed to get one dwelling unit and the services of the respondent at a project under the name of “Swapnaneer” which was to be constructed by the OP at Langalberia Gram Panchayat wthin P.S. Sonarpur, South 24 Pgs at a price of Rs.16,12,474/-.  The said flat was to be completed and handed over within May, 2016.  The complainant agreed to get the said flat and also hired the services of the OP as they felt encouraged and convinced by the claims of the OP that they are associated with the parents of children with multiple disabilities and is engaged by providing different services to the disable persons and their parents and to provide shelter together with care, against requisite fees and cost, and the said OP has as a project office under the name and style of Prayas Community Living Centre at Sonarpur.  On 16/1/2014 petitioners filled in the proposal form containing certain terms and conditions, the copy of which, was not supplied to them.  They also paid the entire amount of Rs.16,12,274/- by way of installments against the cost of membership fees etc.  But they alleged that the OP issued money receipts showing donations in order to restrict the petitioners from getting refund in case of any dispute in future.  Despite receiving the huge sum from them, OP did not execute any deed of conveyance or any written agreement and also did not handover the dwelling unit.  They were also allegedly making several demands for their appointment as legal guardian of the petitioners’ sons etc.  Finally, on being dissatisfied with their terms, they informed the OP on 30/11/2019 to withdraw their membership from the OP’s association and asked for refund of the amount paid by them.  They also issued notice through their Advocate, but the OP refused to pay back the money and finally this complaint was filed by the petitioners praying for several relief(s), including refund of the money, compensation and cost of litigation.

OP filed one written version denying the allegations of the petitioners and also claiming that the amount paid by the petitioners were voluntary contributions towards achieving the objective of creating the community living centre.  So, they prayed for dismissal of the instant complaint. 

Evidence, by way of affidavit, was filed on behalf of the petitioners.  They also produced the original documents, including the money receipts and copies thereof.  OP subsequently did not file any evidence or documents.

Now, the point for consideration is whether the petitioners are entitled to any relief(s) in this case?

FINDINGS

We have gone through the materials on record, including the documents produced on behalf of the petitioners.  The documents, particularly money receipts, revealed that the petitioners paid Rs.16,12,474/- by making payments on different dates to OP.  However, it is found that these receipts described the payment as donations.  In this connection, on behalf of the petitioners, one copy of the order of the Hon’ble NCDRC passed in Revision Petition No. 3272 of 2016 against the order dt. 22/8/2016 in Appeal No. 89/2016 of the State Commission, West Bengal between Prayas Community Living Centre, Tollygunge-vs-Bahani Mondal and Others wherein Hon’ble NCDRC, by an order dt. 21/2/2017 under similar facts and circumstances, observed that the respondents/complainants are the consumers and denial of service to the complainants tantamounts to deficiency and the Hon’ble Commission did not find any jurisdictional error or any material irregularity in the order of the State Commission and therefore the Revision Petition was dismissed.  Hon’ble NCDRC also cited the judgement in Revision Petition No. 2407 of 2015 of the National Commission, which was also relied upon by the State Commission.

We think, for better understanding, the relevant portion of the said judgement may be re-produced here in this case. 

Having perused the outline of the project “Swapnaneer” available on record, we are of the view that the revision petition is without any substance.  It is evident from the salient features of the project, particularly, the three components viz. living components, service components and social components, that the payment in question of which refund had been sought by the complainants, was towards the living components, viz. shelter in the form of a 350 sq. feet furnished accommodation for a consideration of Rs.8,00,000/- notwithstanding that fact that allotment has to be on a long term lease-hold basis initially for a period of 17 years, extendable as per the requirement of the alllottee.  In our opinion, the character of the payment would not change by terming “the cost of the dwelling unit towards the construction of the living components including all expenses for allied infrastructure” as donations” in terms of Clause-38 of the outline of the project.  In our view, the use of word “donations” is a misnomer or a camouflage to facilitate the Members to claim benefit of Section 80 G of the Income Tax, 1961, and ingenious device.  There is no Clause in the entire scheme/agreement, providing forfeiture of the amounts deposited in the event of Member withdrawing from the Scheme.  In the absence of any such condition and above all, having initially agreed to refund the said amount, no fault can be found with the impugned direction to refund of the aforesaid amounts to the complainants.  Consequently, the Revision Petition fails and dismissed accordingly.”

In view of the aforesaid observation of the Hon’ble NCDRC and on going through the materials on record with regard to the present case, we find, the petitioners are entitled to get back the money paid to the OP alongwith interest.  This apart, the petitioners are also entitled to cost of litigation.

Accordingly, it is

                                           ORDERED

The instant complaint is allowed on contest against the OP. 

OP is directed to refund to the petitioners the amount of Rs. 16,12,474/- with interest @9% per annum from the date of 6/2/2020, when they requested for refund of the amount through their Advocate till payment in full.

OP is also directed to pay Rs.6,000/- towards cost of litigation to the petitioners.

OP is directed to comply with this order within 45 days from the date of this order, failing which, the complainant shall be at liberty to proceed in accordance with law.

Dictated and corrected by me

PRESIDENT