DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 227/2015
Date of Filing: Date of Admission Date of Disposal:
08/4/2015 24/4/2015 18/09/2015
Complainant = Vs. = O.Ps.
Sri Skumar Sarkar 1) M/s Sankit Construction
Residing at Flat No-E-3/4, Real Estate Developer
Karunamayee, Salt Lake Regd. Office, 13/8D, Ariff Road,
P.S. Bidhannagar Ultadanga, P.S. Ultadanga
Kolkata-700091. Kolkata-700067
2) Sri Pradip Mondal, Owner
& Promoter of Plot R.A. 178
Dhapa Resettlement Area
Shantinagar, Sector-4
Salt Lake City, PS Bidhannagar(S)
Kolkata-700105.
J U D G E M E N T
As stated in the complaint, the complainant is a Senior Citizen and lodged it himself without the help of any Advocate. It is stated that the complainant paid Rs 100000/- to the Developer/Promoter for purchase of a flat, being under construction in the plot namely R.A. 178, Dhapa Resettlement Area, Shantinagar, Sector-4, Salt Lake City, Kolkata-700105.
The complainant stated that he subsequently found that neither the water supply connection nor the underground sewerage network with the Salt Lake City grid was provided to the complex nor is there any scheme in the project.
Written and Typed By Me Contd. …. 2/-
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It is stated by the complainant that the owner of the plot had not got permission from the U.D. Department (Govt. of West Bengal) for raising G+4 storied Building nor was the development agreement between the Promoter/Developer and the Owner of the plot registered in the office of the Registrar of Assurances, Govt. of West Bengal.
According to the complainant these are serious deficits (deficiencies). Accordingly, the complainant stated to have deferred his decision and requested for refund of his money. For this, he stated to have talked to the Developer on 28/10/2014, 30/10/2014, 01/11/2014, 29/11/2014, 07/12/2014, 21/12/2014, 08/01/2015 and 27/01/2015. On O.P.’s no response, the complainant took the help of a person (one Dilip Mitra) known to both of the complainant and the O.P.-2 and with his intervention, the O.P. assured the complainant to refund the money within January but he did not refund till the date of lodging and last argument of the case, which is leading to his loss of principal as well as interest.
The complainant sent the O.P. request to refund and warned, on failure, he would lodge complaint at the appropriate court and claim the principal with interest, compensation for harassment and mental agony of the Sr. Citizen Technocrat, amounting to Rs 1.75 lakh including cost of litigation and transport etc. On O.P.’s non-response, the complainant sent him letter through regd. Post on 02/02/2015 and sent reminder on 05/3/2015 but O.P.-1 & 2 failed.
The complainant added the he was in need of the money for treatment of his ailing wife.
Written Version By the OPs
The OPs did not turn up and contested the case by way of submitting WV although they received summons and they were given ample chances.
Written and Typed By Me Contd. …. 3/-
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Affidavit-In-Chief By the Complainant
In a petition dated 31/8/2015, the Advocate of the complainant prayed for treating the complaint as Affidavit-In-Chief.
CRITICAL ANALYSIS AND DECISION WITH REASONS
1) The O.P.-2 did not take part in the proceedings and failed to ventilate his views on the points raised by the complainant in spite of the fact that summons were delivered to OP-1 on 20/5/15 and to OP-2 on 21/5/15 as per Track report submitted by the complainant.
2) That the complainant paid Rs 100000/- to OPs is clear not only from the complainant’s submission in the complaint but also from the Money Receipt no. Nil Date 20/10/2014 of SANKIT CONSTRUCTION (OP-1), Contractor & Developer of Real Estate, issued by Prasanta Kundu (OP-1), for SANKIT CONSTRUCTION (with breakup of Rs 55000/- as cash and Rs 45000/- by cheque).
3) It appears from the said Money Receipt, that the complainant was allotted Flat “B” on the 1st Floor of the proposed building.
4) It may be mentioned that the OPs entered into a Joint Adventure Agreement for developing the building on the leased plot of land owned by Sri Pradip Mondal after clearance from the Urban Development Department, at R.A. 178, Dhapa Resettlement Area, Shantinagar, Sector-4, Salt Lake City, Kolkata-700105, North 24 Parganas, against Rs 5 lakh and 50% of the proposed building at different floors stated in the agreement, to be offered by the OPs to the owner Sri Pradip Mondal.
Written and Typed By Me Contd. …. 4/-
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5) It appears from clause 2, chapter 2 and page 6 of the said agreement that the remaining 50% of the building would be sold out to intending purchasers by the OPs. Incidentally, the complainant was such a purchaser who advanced Rs 100000/- for a flat.
6) The agreement between the owner and the developer was signed by the owner on 21/3/2014, which was also mentioned at the end of the agreement at page 14 before the schedules but the developer signed the agreement after one month, i.e. on 21/4/2014. The agreement was not at all registered but signed on a stamp paper of Rs 10/-. This was one of the apprehensions of the complainant.
7) As per clause 1(‘ga’), chapter 4, page 8 of the agreement, drainage system and other facilities are to be arranged at own cost of each respective parties including intending purchasers but the underground sewerage network where the domestic drainage system would be connected, has not been mentioned in the agreement and this was one of the apprehensions of the complainant.
8) At Schedule ‘Kha’, page 16 of the agreement under Water Arrangement, it has been stipulated that water would be supplied to the roof-tank of each flat subject to the permission/approval of the corporation. As the complainant found no such system of water connection network, he was apprehensive of the fact that the corporation did not accord permission at least till that period, for any reason whatsoever.
9) Thinking all these loopholes on the part of the OPs and apprehending that he would have to face much difficulty in the flat at this stage of Sr. Citizen, the complainant requested the OP-2 a no. of times and through a mediator, known to both of them, to refund his advanced
Written and Typed By Me Contd. ….5/-
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Money, which the OP-2 agreed to but did not comply with as mentioned by the complainant. The OP-2 did not even respond to requests of the Sr. Citizen sent through Speed Post on 02/02/2015 and lastly on 05/3/2015 warning the OP to lodge complaint against the OPs at the appropriate court for refund of his money but all in vain.
9) It is much surprising that in spite of getting notice/summons, the OPs did not take part in the proceedings and to controvert the allegations leveled against them by the complainant from which it may be inferred that the OPs did not want to face the situation and the points raised by the complainant seem to be true. THE MATTER, THEREFORE, IS TO BE DEALT WITH UNDER SEC 13(2)(b)(2) OF THE CONSUMER PROTECTION ACT,1986 AMENDED SO FAR.
10) We may, therefore, presume that the OPs are deficient and negligent who denied facing the truth in spite of getting ample opportunities.
11) There might not be any question regarding the jurisdiction—pecuniary or territorial and regarding Limitation, as these criteria satisfy the questions though raised by none.
12) The complainant is a consumer under the OPs in terms of sec 2(1)(d)(ii) of the Consumer Protection Act, 1986, as he paid money for some services or duties to have been done or some promises to have been kept by the OPs but such duties/promises were not done/kept and so, OPs are negligent/deficient and the complainant-consumer is entitled to relief.
CONCLUSION:
In the circumstances of what have been critically discussed above, we are constrained to arrive at the decision that the OPs are deficient and
Written and Typed By Me Contd. ….6/-
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negligent, rendering the Sr. Citizen complainant into troubles and therefore, we have no other alternative but to pass
ORDER
- That the complaint is allowed in part against the OPs exparte in terms of section 13(2)(b)(2) of the Consumer Protection Act, 1986 as amended so far.
- That the OPs are jointly and severally directed to refund Rs 100000/-(One Lakh) to the Complainant within Thirty days from the date of this order with 9% interest to be calculated from 20/10/2014, the date of deposit of the money.
- That the OPs are jointly and severally directed to pay to the complainant Rs 5000/(Five Thousand) as compensation for physical harassment and mental agony of the age-old complainant and Rs 2000/-(Two Thousand) for cost of litigation within Thirty days from the date of this order.
- On failure of the OPs to carry out above executable orders within the stipulated time, OPs shall have to pay a sum of Rs 100/- per day after the lapse of the stipulated time, to be deposited with the State Consumer Welfare Fund.
Let copies of this order be supplied free of cost to the parties when applied for.
Member President
Written and Typed By Me
