OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI

C.C.37/12

Present:-

                                    1)Md.Sahadat Hussain, A.J.S.  -         President

                                    2)Smti Archana Deka Lahkar   -          Member

Sri Hemanta Kumar Sarma                                          -Complainant

S/O Late (Dr) Upendra Nath Sarma                                

Residence of Chitraban Path, Bye Lane No.1

R.G.Baruah Rd.P.O.& P.S.Chandmari.

Guwahati-3,Dist.-Kamrup,Assam.

                           -vs-

1)      M/S Quantum Enterprises,                                   - Opp.parties

Represented by its Proprietor-

Sri Nilotpaul Choudhury,

S/O Sri Sunanda Kumar Choudhury.

18/6 Hill side road, North Sarania

Gandhi Basti,Guwahati-3,District-Kamrup(Assam)

2)        The Managing Director,

Quantum Developers (A division of Quantum Enterprises)

 Abhay Arcade,2^nd floor, MRD Road,

 Chandmari, Guwahati-3

 Dist:-Kamrup, Assam.

Appearance-           

Learned advocates  for the complainant-    Mr.Rajib Hazarika.

None appears  for the opposite parties.  

Date of argument-             21.06 .2017

Date of judgment-             06.07.2017

 JUDGMENT

This is a complaint u/s 12 of the Consumer Protection Act, 1986.

1)        The complaint filed by Sri Hemanta Kumar Sarma was admitted on 21.6.12 and notices were issued to the opp.parties, which were also served; and opp.parties also filed written statement . Thereafter, the complainant filed his evidence on affidavit, and thenafter the complainant was cross-examined by the opp.party side and opp.party side filed affidavit of Mr.Nilutpal Choudhury as their evidence , but after taking several adjournments the opp.party side failed to produce their witness Mr.Nilutpal Choudhury for cross examination; and finally this forum, vide order dtd.24.3.17, issued order in expunging the affidavit of the witness of the opp.party, Mr.Nilutpal Choudhury having the opp.party failed to produce him for cross examination even after taking several adjournments and by that order this forum also fixed the day of 6.5.17 for filing written argument by the parties, but on 6.5.2017 , it is found that opp.parties are absent without step. However , the opp.parties were allowed a chance for filing written argument on 30.5.2017 and on that day also they failed to file written argument ; and on 21.6.17, the day of oral argument, also the opp.party side was found absent without step, and therefore, on that day, we heard the oral argument of Ld advocate Mr.Rajib Hazarika for the complainant ;and today we deliver the judgment which is as below.

2)        The gist of the complainant is that the complainant booked a flat measuring a super build up area of 920 sq.feet on the forth floor of South-West side of the residential flat to be constructed by Opp.Party No.1, M/S Quantum Enterprises , North Sarania , Guwahati for a total consideration of Rs.24,70,000 and he also paid Rs.3,00,00/- as advance to Opp.Party No.1 on 28.7.2010 . The name of the project of the Opp.Party No.1, is “SASADHAR  ALAKA  ENCLAVE”  and agreement was also executed between them on 24.8.2010, and on that day he deposited Rs.3,17,500/- to Opp.Party No.1 and he paid Rs.9,37,500/- to the opp.parties in total . The younger daughter of the complainant has been suffering orthopedical disease, for which operation in All India Institute of Medical Science (AIIMS), Delhi , has been required, and for that operation, about 8-10 lacs rupees was required, but the complainant , being a retired Govt.Employee having no other source of income, requested Opp.Party No.1 for cancellation of his booking and to return the deposited amount vide his letter dtd. 18.5.2011 so as to use the said money in the operation of his said daughter, and  Opp.Party No.1 , vide his letter No.QREF 18/15 dtd. 15.5.2011 informed him that they accepted the proposal for cancellation of his flat, and asked him to wait sometime as they are looking for fresh allotees and told him that when the said flats get re-allotted to a fresh purchaser they will return the deposited amount  to him on installment basis, but Opp.Party No.1 did not return his money in spite of his request on several occasions. Later on,  he has come to know that Guwahati Metropolitan Development Authority has already demolished the 4^th floor of the building of “SASADHAR  ALAKA  ENCLAVE”  being it was illegally constructed  without having permission from the GMDA. The complainant approached Opp.Party No.1 in the first week of July,2011 and requested him to refund atleast Rs.50% of the advance he paid to meet the cost of the treatment of his daughter; and then Opp.Party No.1 sent a letter to him vide Ref No.Q.Refund dtd.28.7.2011 admitting suspension of the construction of 4^th floor of their project having a case filed by the owner of the land has been pending in the Hon’ble Gauhati High Court, and they also informed him that it is beyond their capacity to refund the amount as requested by him, and also asked him to wait till disposal of the case filed in the Hon’ble Gauhati High Court. The complainant served a legal notice to Opp.Party No.1 on 29.11.11 upon Opp.Party No.1 requesting them to refund the amount of Rs.9,37,500/- within a period of 15 days, but Opp.Party No.1 has not refunded the said amount although they received the said notice . The complainant has got his daughter operated at  All India Institute of Medical Science (AIIMS), Delhi, incurring total expenditure of seven lakhs. The opp.parties adopted unfair trade practice by mentioning falsely in the deed of agreement that they had complied with all statutory formalities in relation to the agreement such as GMDA PERMISSION, being No.GMDA /BP/ 319/ 050 22 009/31 dtd.18.3.2010, but in fact no such permission has been obtained from GMDA, which is admitted by the Opp.Party No.1 in letter dtd. 28.7.2011 and for that reason, GMDA has demolished the 4^th floor of the project. In Clause 28 of the agreement, the condition for refund for advance amount in the case of cancellation booking is quoted., but opp.parties have not complied with that clause . Such act of non-refunding the advance paid by the complainant is an act of unfair trade practice on the part of the opp.parties and therefore the complainant prays for directing the opp.parties to refund the advance money of Rs.9,37,500/- with interest @ 18%  and to pay him Rs.25,000/- as compensation for deficiency in service towards him and also to pay Rs.5,000/- as compensation for putting him in mental agony and causing harassment to him, along with Rs.5,000/- as cost of the proceeding.

3)        The gist of the pleading of the opp.parties is that the complaint is not maintainable in law as well as in facts. The complaint is not maintainable  for not making the land owner of the project, party in this proceeding. There is no cause of action for filing the complaint . The statement of the complainant in para 7 of the complaint are correct. They received request of cancellation of booking from the complainant and the cancellation of any allotment is carried forward as per the procedure laid down in Clause No.28 of the agreement between the complainant and them. The statements made in para No.10 of the complaint are true facts. They could not make any refund to the complainant as they had been looking for fresh allottee of the said flat. Guwahati Metropolitan Development Authority  had assured the land owner to give the permission  for G+4, which has been suspended for entire city presently and once the said suspension would be lifted they would regularize the G+4 N.O.C. They shall initiate refund of the already paid by the complainant after said flat is booked by a third party. They, after receiving the notice of Guwahati Metropolitan Development Authority,  removed the wooden shattering of the 4^th floor fitted for slap casting . They started construction of 4^th floor under bonafide belief that the required N.O.C. would be issued soon as all formalities were duly complied with by the land owner for necessary building permission. They received the legal notice issued by the Ld.counsel of the complainant. As a writ petition before the Hon’ble Gauhati High Court is pending; they are not in a position to make refund of the advance paid by the complainant as per his request and therefore, they cannot be said to have adopted unfair trade practice and have been deficiency of service towards the complainant.

4)        We have perused the complaint as well as the written statement filed by Opp.Party No.1 & 2 (M/S Quantum Enterprise and its Managing Director). It transpires to us that it is both sides admitted fact that Opp.Party No.1, M/S Quantum Enterprises is proprietorial firm of Sri Nilotpal Choudhury S/O Sri Sunanda Kr.Choudhury, resident of 18/6, Hill Side Road, New SArania Guwahati-3 District- Kamrup(M) and under that banner, Sri Nilotpal Choudhury has been doing business of builder and Real Estate developer, and he also took a project of constructing flats at Chandmari, Guwahati by taking a plot of land, meaning 2 kathas 5 lechas, out of which 1 kathas 5 lechas (3.37 Are) owned by Smti Nilima Baruah covered by Dag No. 120 (old)/37(New) Patta No. 57(old)/1040(New) and 1 katha (2.86 Are) owned by Smti Nilima Baruah covered by Dag No.12(old)/44(New) patta No. 57(old)/245 (New) of village Japorigog,Beltola Mouza, Guwahati and started constructed naming the flat Sasadhar Alaka Enclave and the complainant Sri Hemanta Kr.Sarma entered into an agreement with Opp.Party No.2, builder to purchase a super built up area of 928 sq feet on the western side of the fourth floor (South West side) of the said project bearing No.411 , Type –B for a total consideration of Rs.24,70,000/- and he paid Rs.3,00,000/-to Opp.Party No.2 as advance on the day of agreement i.e. on 28.7.2-10 and again paid Rs.3,17,500/- on 24.8.2010 and Rs.3,20,000/- on 25.9.2010 in total Rs.9,37,500/-.

5)      It is also found from evidence that Opp.Party No.1 constructed upto three storeys and fixed wooden shattering for casting of 4^th floor hoping to got permission from GMDA to construct 4^th floor also but Opp.Party No.1 temporarily removed the wooden shattering of 4^th floor slab casting because legal dispute between the land owners and GMDA is under sub-judice before the Hon’ble High Court. It is also found that till date the opp. parties has  not got permission to construct 4^th floor .

            Thus, it established that the complainant entered into an agreement with opp.Party No.1 for purchasing an apartment of 928 sq feet super-build area in the fourth floor of Sasadhar Alaka Enclave, Chandmari constructed by Opp.Party No.1 at a consideration of Rs.24,70,000/- and he paid Rs.9,37,500/- to Opp.Party NO.1 as advance upto 25.9.2010 , but 4^th floor was not constructed by Opp.Party No.1 for want of permission from GMDA although Opp.Party NO.1 hoped for getting due permission from GMDA and they even demolished the shattering of casting of slab of 4^th floor. Thus, it is crystal clear that there is no possibility of construction  of 4^th floor in the said project.

6)        After perusing of the evidence of Complainant’s Witness No.1, it appears to us that the complainant approached Opp.Party No.2 and requested them to refund atleast 50% of the advance deposited by him as a good sum was required for operation of his daughter at AIIMS as she developed serious orthopedic disease; but they, vide their letter dtd. 28.7.11, informed him that it is beyond their capacity to refund his money, and then he sent legal notice to Opp.Party No.1 vide of his notice dtd. 25.11.11 (Ex.9) requesting them to refund the entire advance amount i.e. Rs.9,37,500/- , but no any communication from them has reached him. From the evidence of the complainant, it is also found that, the complainant had incurred expenditure of Rs.7,00,000/- for doing operation of his daughter for suffering from  orthopedic disease. From the written statement of the opp.parties , it also transpires to us that the opp.party side admits that they received the request of cancellation of the booking from the complainant and they refused to refund the advance amount as they have been looking for fresh allottee of the flat in question. Thus, it is established that the opp.party side was aware that  the complainant was in need of rupees 7/8 lacs for operation of his daughter for orthopedic disease in AIIMS, New Delhi and this justifies his request for refund of the advance amount paid by him  but knowing that fact the opp.party side has not refunded the advance amount to the complainant, although there is a clause vide Clause 28 in the agreement of sale. Thus, it is found that the opp.party side willfully refused to refund the advance amount to the complainant , although the complainant is entitled to get back the amount  under Clause 28 of the agreement. Secondly, it is admitted fact that the opp.party side did not get the permission from GMDA to construct 4^th floor of their project and they entered into an agreement with the complainant falsely stating that they have due permission from GMDA to construct 4^th floor also under the permission given by the GMDA vide permission No. GMDA /BP/319/05022009/31 dtd. 18.3.10. It is found that the opp.party side admits that they did not   have permission of GMDA to construct 4^th floor of their project, but they entered into an agreement with the complainant  in the hope of taking permission sooner. Thus, it is crystal clear that the opp.party side induced the complainant to enter into an agreement with them to purchase an apartment in the 4^th floor of their project by falsely stating that they have permission to construct 4^th floor of their project vide  GMDA vide permission No.  GMDA / BP/ 319/ 05022009/ 31 dtd. 18.3.10. Thus, it is a clear case of unfair trade practice. Therefore, opp.parties are liable to refund the advance paid by the complainant with interest @ 12% per annum from the date of agreement (24^th August,2010).

            Moreover, the complainant has justified ground to approach the opp.parties to refund the advance amount which is that the complainant was in need of 7/8 lakhs rupees of operation of his daughter for suffering from orthopedic disease as per provision of Clause 28 of the agreement. It is found that knowing that fact also the opp.party side refused to refund the advance amount. So, on that ground also, the complainant is entitled to get back the advance amount from the opp.parties .

7)      So ,in view of above discussion , we hold that   by refusing to refund the advance amount to the complainant by the opp.parties , although he has legitimate grounds to get back the advance paid by him, the opp.parties committed deficiency of service towards the complainant and on that count the opp.parties are liable also to pay proper compensation to the complainant for causing harassment to him by refusing to refund the advance amount.

             It is also found that after complying the clauses of the agreement which the complainant entered with the opp.parties , he failed to get back his advance amount from the op.parties and then being compelled he has to file this complaint against the opp.parties and incurred certain cost in that pursuit. So, the complainant is entitled to certain amount as cost of the proceeding. We are of opinion that the opp.parties  are liable to pay Rs.10,000/- as compensation for causing harassment to the complainant and Rs.10,000/- as a cost of the proceeding.

8)        Because of what has been discussed as above, we hold that the complaint has merit . Accordingly the complaint is allowed on contest against both the opp.parties with a direction to the opp.parties to refund the advance amount which is Rs.9,37,500/- paid by the complainant to them with interest @ 12% per annum from the date of his demand for refund i.e.18.5.11 and also to pay him Rs. 10,000/- as compensation for causing harassment to the complainant and Rs.10,000/- as a cost of the proceeding, to which, both the opp.parties are jointly and severally liable . They are directed to make payment within 45 days, in default, other two amounts shall also carry interest in the same rate.

Given under our hand and seal of the District Forum, on this the   6^th  day July  of , 2017.

  (Mrs. A. D. Lahkar)                                                      (Md.S.Hussain)

    Member                                                                          President