F I N A L O R D E R
Complainant is present through the Ld. Advocate.
The O.P. is absent on calls.
The case is taken-up for further hearing and order.
Heard argument from the side of the complainant in full.
On 23.04.2018, the complainant, Smt. Nilima Halder has filed an application u/S. 12 of the C. P. Act, 1986 against the Opposite Parties.
The case of the complainant, in brief, is that the complainant along with her husband was in search of good accommodation preferably a 3 B.H.K. flat in the prime location of Durgapur Town and her husband came to learn that the O.P. was going to promote and build some residential flat projects in and around Benachity, which is one of the prominent place of Durgapur town. The petitioner and her husband on enquiry contacted the O.P. who disclosed themselves as reputed building, developer and promoter and they talked about their upcoming projects at Benachity having come to know about the interest of the complainant and her husband. During such stock , the O.P. showed various photographs and documents regarding the construction and building of the said upcoming project at Benachity and persuaded the petitioner and her husband to book a flat immediately as they claimed that many people have already booked and the flats were being booked vary fast within a short period. Relying upon such word of the O.P the petitioner and her husband shown interest and they wanted to purchase a 3 BHK flat in the said project. Accordingly the petitioner was asked to book such flat immediately and the price of such flat was fixed at Rs.4000/- per square feet for a complete flat. The petitioner and her husband then booked a flat in the 3rd floor of the said project admeasuring 1048 sq.ft. And they were asked to pay a sum of Rs.6,00,000/- towards confirmed booking. The petitioner was told further that such flat could be delivered to her by June, 2018 and they had to pay the balance amount as per direction and instruction of the O.P. The petitioner and her husband were asked to fill up an application form (A photocopy of which is marked as Annexure A) the petitioner and her husband, accordingly jointly made such application, filled up the same and paid a sum of Rs.6,00,000/- towards booking and part consideration money of such flat out of which Rs.1,00,000/- was paid by cash whereas the rest Rs.5,00,000/- amount were paid by cheque bearing No.444288 dated 04.10.2016 drawn on Syndicate Bank, Durgapur Branch. An acknowledgement of such booking and part payment of the consideration money was made by the director of the O.P. in the said application form and a separate money receipt acknowledging the payment of Rs.6,00,000/- was also made /granted in favour of the petitioner and her husband by money receipt No.401 dated 03.10.2016. It is most unfortunate that no booklet disclosing the standard of the fittings and structures was appended with the said form but only general terms and conditions (G.T.C.) was appended but that too without any signature of the promoter /builder i.e., the O.P. Moreover, the O.P. also got the application form signed from the petitioner and her husband where no serial number of the said form did appear and all these conjointly proves the unfair trade practice of the O.P. The petitioner and her husband being men of ordinary prudence strongly relied upon the O.P., who assured about the delivery of flat and that too well within the time.
The complainant further stated that the husband of the petitioner suffered an untimely death in the month of December, 2016 which all of a sudden put the petitioner in utter distress with severe financial stringency. The petitioner having no other option immediately reported the matter orally and requested to cancel the booking of the said flat as it was no more possible for her to purchase the said flat and earnestly requested them to refund the said amount of Rs.6, 00,000/- immediately as within three months of the booking, she cancelled the same and the situation did not permit her to purchase the said flat. The petitioner was assured that since it was an early cancellation and since there was not even start of the foundation work of the said project, the entire amount of Rs.6,00,000./- she paid would be refunded and the O.P. requested her to bear some time to enable them to process such refund. Thereafter times in number the petitioner requested the O.P. to pay back the said amount of Rs.6,00,000/- she paid to them and in every occasion the O.P. assured the petitioner for making refund of the said amount. In such process, more than a year is passed but the O.P. did not pay the said amount rather they started killing time on one plea or other. Ultimately the petitioner understood the oblique motive of the O.P. and having realized that the O.P. is simply killing time without making any refund of the said amount, the petitioner served a letter dated 10.02.2017 and requested them once again to make refund of the said money in spite of service of such letter dated 10.02.2017 the O.P., in particular, the director of the O.P. namely Dibyendu Roy, called the petitioner over phone and assured her that they would make payment of the said amount very shortly and sought for 7 days’ time. Unfortunately even after the expiry of about a month, the O.P. did not bother to comply with the request of the petitioner thereby making refund of the said amount which constrained the petitioner to cause a legal notice upon the O.P. through Ld. Advocate Shri Shovan Kumar vide his Notice dated 19.03.2018 sent through registered post. Such notice was served upon the O.P. on 26.03.2018 whereby the O.P. was asked to make refund of the entire amount within 7 days from the date of the receipt of the said notice. Unfortunately the O.P. even after the service of the said notice did not comply with the request made therein and till date did not pay a farthing. In this context the O.P. did not even start the foundation work of the said project till this day, which patently proves their unfair trade practice and severe deficiency in service. The petitioner therefore prays for refund of Rs.6,00.000/- so paid towards booking as well as part consideration money of the 3 BHK flat vide receipt dated 03.10.2016 along with the interest @ 15% per annum since January, 2017 till payment of the entire money along with a sum of Rs.2,00,000/- towards mental pain, agony, & sufferings and also Rs.50,000/- for litigation cost.
The O.P. begs to submit on his written version that the case is not at all maintainable before the Ld. Consumer Forum because the complainant has not disclosed through rather proper facts regarding the alleged money transaction of the parties. In fact the husband of the complainant was one of the investors of M/S. Skyline Builders and Developers. The husband of the complainant i.e, Dhiraj Kr. Halder visited the spot of a proposed flat on 04.10.2016 and enquired about the fund and other status of the O.P. and after accomplishing of enquiry he was well award that the flats will be ready within 5 years. Mr. Dhiraj Kumar Halder was truly informed the price of the 3BHK flat Rs.50,00,000/-(Fifty Lakhs) only . Dhiraj Kumar Halder boldly intimated rather proposed that if ten lakhs will be deducted he is ready for paying Forty Lakhs by instalments as one of the investor and as soon as the flat will be ready for sale. He will sell the same at the price of fifty lakhs. As p[er his promise Dhiraj Kumar Halder he paid the alleged rupees six lakhs on 04.10.2016. In fact the relation between complainant and O.P. is not consumer at all.
O.P. further stated that as per the strong promise of Dhiraj Kumar Halder he even did not perform his work and he did not pay the second instalment as investors and even he did not meet for second time after 04.10.2016. After observing the negligence of the Dhiraj Kumar Halder, the O.P. after a prolonged search came to know that the husband of the complainant expired at this junction the O.P. further begs to state that the complainant although demanded the deposition money of her husband. The O.P. politely rather with folded hands requested her to wait for reasonable time and the O.P. assured that after observing the rules, norms and law he will of course return the deposited money. But it is curious enough without waiting for a mutual settlement; the complainant has instituted the cased in a wrong forum. The O.P further begs to stated that he has no ill desire to deprive or deceive any person. At present the O.P. has no sufficient fund to return back the deposited amount but he assures that he will return the deposited money by handing over the flats to the purported purchasers. The O.P. in the present objection all other allegations of the complainant are dimed to have denied by the O.P. and dismissed the complaint case with exemplary cost in favour of this O.P.
Decision with Reasons
In order to prove the case, the complainant has filed evidence-on-affidavit and the O.P. has filed questionnaire. Complainant filed reply (16.01.2019) against the said questionnaire. O.P. filed evidence on affidavit (25.02.2019). Complainant filed questionnaire (10.04.2019) and O.P. filed reply (14.01.2020). Complainant filed W.N.A. (01.08.2022) along with some documents under firisti but the O.P. neither filed WNA nor did he take part on the argument since 01.08.2022.
Perused the complaint, written version, evidence-on-affidavit of both sides and the W.N.A. of the complainant. We also perused the Xerox copy of documents submitted by the complainant. No documentary evidence has been filed by the O.Ps. The complainant corroborated the facts of the case depicted in the complaint by evidence-on-affidavit that complainant booked such flat and the price of such completed flat was fixed at Rs.4000/- per square feet in the third floor measuring at 1048 sq.ft. and she paid a sum of Rs.6,00,000/- (part consideration money out of which Rs. 5,00,000/- was paid by cheque bearing No. 444288 dated 04.10.2016 drawn on Syndicate Bank, Durgapur Branch, and Rs.1,00,000/- by cash towards confirmed booking). Complainant was assured by the O.P. that such flat would be delivered to her by June, 2018 and they had to pay the balance amount as per direction and instruction of the O.P.
On the contrary, O.P. admitted that in the acknowledgement of such booking or that part payment of the consideration money was made by the director of the O.P. in the said application form of Rs.6,00,000/- was also made in favour of the complainant by money receipt No.401 dated 03.10.2016 . But the OP, in spite of his pleas that the husband of the complainant was one of the investors of M/S. Skyline Builders and Developers, could not file any document to show that the husband of the complainant was a Investor and he invested money in the said business for his commercial gain. It is the OP who has the bounden duty to prove his case but the OP could not prove the fact by producing cogent documents but the complainant has proved by showing money receipt bearing the signature of the OP that she paid the said money as consideration value for purchasing the flat in question. The OP misrepresents the Ld. Commission that the husband of the complainant was an Investor.
Having considered the above facts and circumstances of the case and evidence-on record, it can be said that the O.P. have committed deficiency in service and negligent in this case. Therefore, the OP is bound to refund the said amount as the complainant deposited to the OP for purchasing the said flat.
As a result the case succeeds.
Therefore the complainant is entitled to get compensation and litigation cost in this case.
Hence, it is
Ordered
that this Consumer Complaint case being No. 65/2018 be and the same is hereby allowed on contest against the O.P. but without any cost.
The OP is directed to refund Rs. 6, 00,000/-(Rupees Six Lakh) along with interest @ 8% p.a from 01.01.2017 till the date of payment to the complainant.
The OP is also directed to pay a compensation of Rs. 20,000/- (Rupees Twenty Thousand) to the complainant.
The OP is further directed to pay a litigation cost of Rs.5,000/-(Five Thousand) only to the complainant .
The OP is directed to comply the above orders within 45 days from the date of the receipt of this order.
The case is thus disposed of .
Let a copy of this order be supplied to the parties on free of cost.
Member President-in-Charge
D.C.D.R.C., Purba Bardhaman D.C.D.R.C., Purba Bardhaman
