Judgment : Dt.7.9.2017
Shri S. K. Verma, President.
This is a complaint made by one Smt. Bahani Mandal, wife of Sri Sanjib Mondal, aged about 46 years, at present residing at Flat No.1A, ‘Nivedita Apartment’, 440/1, Motijheel Avenue, Dum Dum, P.S.-Dum Dum, Kolkaga-700 074 and Sri Sanjib Mondal, son of Sri Saroj Mondal, aged about 47 years, residing at Flat No.1A, ‘Nivedita Apartment’, 440/1, Motijheel Avenue, Dum Dum, P.S.-Dum Dum, Kolkaga-700 074, against M/s Prayas Community Living Centre, Tollygunge an association of persons registered to West Bengal Societies Act XXVI of 1961,having its registered office at 1st floor, 45/34, Moor Avenue, P.S.-Regent Park, Kolkata-700 040 praying for a direction upon the O.P. to refund the amount of Rs.9,00,000/- to the Complainant which was collected illegally and a urther direction to the OP to pay Rs.400/- per day being the cost of compensation for unlawful delay till recovery of the said sum and also for a direction to pay Rs.50,000/- for mental torture and litigation cost.
Facts in brief are that Complainant Nos.1 & 2 are the wife and husband, having only daughter, named Rupsa Mondal, aged about 20 years who is autistic and mentally disabled from her birth and for her both the Complainants were too much worried for her future life. OP claims themselves as an association of parents of children with multiple disabilities and is engaged by providing different services to the disabled persons and to provide shelter together with care. The Complainant further stated that the OP initiated a project under the name and style ‘Swapnaneer’ at Langalberia Gram panhcayet, P.S.-Sonarpur, which was under construction and assured that Swapnaneer would be completed by May/June, 2013. Further, OP stated that Swapnaneer is being constructed for services to the disabled persons. Both the Complainants got encouraged and convinced by the claims of OP and paid Rs.9,00,000/- in different installments towards the cost of dwelling unit. Complainant filed a proposal form on 21.4.2012 under certain terms and conditions . Complainant paid Rs.9,00,000/- by several cheques in different installments as advance against the cost of membership fee, cost of residing facilities in a 380 sq.ft. flat for certain years together with cost of amenities or services to be rendered by the OP. Complainant has furnished the details of their payment and the receipts thereof. A copy of the receipts are filed. Further, Complainants have stated that in the money receipts amount has been shown as donation. Complainant also paid Rs.21,725/- as demanded by the OP. Complainants, during the course of time, became the member of the Governing Body as approached by the OP. OP was reluctant to execute any written agreement. Complainants have further stated that despite receiving Rs.9,00,000/- the OP did not execute any agreement. After being dissatisfied and annoyed, Complainant on 9.11.2015 expressed their desire to withdraw their membership and issued a notice to the OP to that effect. Despite receiving the notice OP did not refund the money. So, Complainant filed this case.
OP filed written version and denied the allegations of the complaint. He has stated that this is not a consumer dispute and the OP is a registered society under the West Bengal Societies Registration Act, 1961. The sole object of this Society is to form an association of parents with autism, cerebral palsy, mental retardation and associated multiple disabilities for providing permanent shelter to such persons. For achieving such goals OP has undertaken this fashion and for that purpose they were constructing the shelter.
Complainants for children paid the money but ultimately did not find the attitude of the OP congenial. It is the contention of the OP that out of Rs.9,00,000/- they have invested a part of the money and constructed the shelter. So, OP has prayed for dismissal of this case.
Decision with reasons
Complainant files affidavit-in-chief wherein they have reiterated the facts mentioned in the complaint petition. Against affidavit-in-chief OP filed questionnaire wherein they have filed certain questionnaire to Complainant No.1. Complainant has replied to the questionnaire and stated that OP violated the terms and conditions of the agreement. Similarly, OPs filed affidavit-in-chief wherein OP has reiterated the facts mentioned in the written v ersion and put certain questions to which Complainant has replied.
Main point for determination is whether Complainant is entitled to the reliefs which they have prayed in the complaint petition.
On perusal of the prayer portion of the complaint, it appears that Complainant has prayed for a direction upon OP to refund Rs.9,00,000/- for services for her daughter. This fact has been admitted by the OP. Further it is also mentioned that Complainant paid Rs.21,725/- which includes cost of maintenance, electric charges, cost of food for staff and cost of food for resident members. OP has stated that Complainant No.2 became a member of the Governing Body and in that party Complainant protested continuously for different months in the account of the OP’s organization.
Further, OP has stated that a draft copy of agreement was given for execution to the petitioner on 9.11.2015. Complainant informed that he will withdraw his membership. Further, OP by filing affidavit-in-chief has stated that he has invested the money received from the Complainant and so this complaint is not with law. Ld. Advocate for OP submitted during argument that since the amount has been invested in constructing the rooms, the question of refunding the amount does not arise.
Considering the respective submissions, documents and the evidence on record, it is clear that OP received Rs.9,00,000/- and the contention that he has invested cannot be acceptable, because if the parents do not get satisfied by the act and conduct of the OP they are at liberty to withdraw from it for the interest and welfare of the disabled child and in such a situation, Complainant will have to refund the money.
Complainant has also prayed for compensation of Rs.50,000/- and Rs.400/- per day as the cost of compensation. In our view such compensation cannot be allowed because receipts reveal that it was given as donation and the object of the OP prima facie appears to be charitable.
Hence,
ordered
CC/45/2016 and the same is allowed on contest. OP is directed to pay Rs.9,00,000/- within three months of this order, in default, the amount shall carry interest of 10% p.a. from the date of this order till realization.
