Dr. Subir Kumar Chaudhuri ,Member

                        Smt. Sharmi Basu ,Member

Order No.   24    Dated  20-02-2013.

            The case of the complainant in short is that  complainants intended to purchase a flat at a top floor, back portion, south western side at 64B, Kakolia Road, Kolkata-29, P.S. Gariahat. O.ps. claimed to have legally and lawfully promoted and developed the said flat under the name and style M/s Satyam Construction and as such, with the intension of purchasing the said flat, complainants paid a sum of Rs.10,08,000/- and out of which Rs.9,78,000/- was paid by cheque no.480142 dt.30.3.07 and Rs.30,000/- by cash on 25.3.07.  O.p. no.1 even a receipt against the said payment. The original copy of the receipt is in the custody of Gariahat P.S. and they have provided the seizure list to the complainants.

            Complainants state that after about 4 months, complainants came to know that the fourth floor / top floor that was allotted to them of the proposed flat has been constructed illegally by o.ps. The plan of the building as well as the construction of the fourth floor was made illegally without the plan being sanctioned by the Kolkata Municipal Corporation. They further came to know that the KMC has already initiated a proceeding against the o.p. no.1 being the promoter / developer and has directed the o.ps. particularly o.p. no.1 preferred an appeal. But the said appeal is still pending. As such the direction of the KMC is still holding good.

            Complainants state that on 31.8.07 they made representation before the o.ps. requesting them to refund the earnest money on the ground that the top floor of the said flat has been constructed illegally according to KMC, but o.ps. turned a deaf ear to their repeated request.

            Complainants state that on 18.11.08 that is after about one full year, o.p. no.2 being the proprietor of o.p. no.1 sent a letter to the complainants along with a cheque of only Rs.1 lakh and stated that in terms of the development of further discussions the next  payment will be made. As such complainants refused to accept the said cheque on the ground that after an year of the notice, they do not wish to receive a meager of Rs.1 lakh and wanted to receive the whole earnest money as asked by them in the legal notice.

            Complainants state that complainants lodged a complaint before the Gariahat P.S. and on the basis of the complaint one criminal case was started which is pending against o.p. no.1 regarding offences u/s 120B, 406, 420 of the Indian Penal Code before the Ld. Additional Chief Judicial Magistrate at Alipore being Gariahat P.S. Case No.306 dt.24.10.07. In pursuant to the said case the police seized the original money receipt and provided the seizure list.

            Complainants state that during the pendency of the said criminal case, o.ps. tried to save their skin by depositing Rs.2 lakhs on 12.1.09 at his account number 230 to the account of the complainants without any information to the complainants. It is pertinent to mention here that the entire deposition was made without any consent or without any approval of the complainants. O.ps. plainly submitted the said amount to save themselves from the criminal charges of the police authorities. As such, complainants immediately contacted the bank officials and made a representation to the Punjab and Sindh Bank, Salt Lake City Branch asking to refund the said amount to its owner and not to credit any amount in their favour from Sachin Mitra, Himadri Chakrabarty and Sri Kumar Chatterjee. The said amount is now in the suspense account.

            Complainants state that they wrote a letter dt.21.11.08 to o.p. no.2 being the proprietor of o.p. no.1 seeking the refund of their earnest money but o.ps. turned a deaf ear to their demand of justice and to their rightful claim. Hence the case was filed by complainant with the prayer contained in the petition of complaint.

            Both O.p. had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and prayed for dismissal of the case. Ld. lawyer of o.ps. in the course of argument submitted that the case has got no merit and the same is liable to be dismissed.

Decision with reasons:

            We have gone through the pleadings of the parties, evidence and documents in particular and we find that complainants to purchase a flat on the top floor, back portion, south western saide of 64B, Kakolia Road, Kolkata-29, P.S. Gariahat and o.ps. being promoter / developer were carrying on business in the name and style M/s Satyam Construction and complainants paid a sum of Rs.10,08,000/- and out of which Rs.9,78,000/- was paid by cheque no.480142 dt.30.3.07 and Rs.30,000/- by cash on 25.3.07.

            We further find that the construction of the said flat was illegal without any sanction of KMC and KMC initiated a proceeding against o.p. no.1 and directed o.p. no.1 to demolish the proposed flat and o.p. no.1 preferred an appeal and the said appeal is still pending and as such, the direction of KMC is still holding good and thereafter complainants on 31.8.07 requested o.ps. to refund the earnest money paid by them on the ground that the top floor of the said flat was constructing illegally according to KMC and the o.ps. did not pay heed to their request.

            In view of the findings above and on perusal of the entire materials on record we find that o.ps. had sufficient deficiency to obtain earnest money from complainants as against the illegal construction being service provider to their consumers / complainants and complainants are entitled to relief.

            Hence, ordered,

            That the case is allowed on contest with cost against the o.ps. O.ps. are jointly and/or severally directed to refund the entire sum of Rs.10,08,000/- (Rupees ten lakhs eight thousand) only to the complainants and are further directed to pay compensation Rs.30,000/- (Rupees thirty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization.

            Complainant is at liberty to file execution case before this Forum in case of non execution of the aforesaid order in its entirety within the stipulated period under the provision of the COPRA, 1986.

            Supply certified copy of this order to the parties free of cost.