DATE OF DISPOSAL: 27.06.2023
PER: SRI SATISH KUMAR PANIGRAHI, PRESIDENT:
The fact of the case in brief is that the complainant has filed this Consumer complaint under section 35 of the Consumer Protection Act, 2019 alleging deficiency in service and unfair trade practice by the Opposite Parties (in short O.Ps.) and for redressal of his grievance before this Commission.
2. The complainant is a senior citizen and by motivation of Opposite Parties the complainant showed his willingness for purchasing of the flat No. J at 1st floor under Project Bhagabati Mansion situated at (1) Plot No. 761, Khata No. 551/10, Area: ACO.220dc, and (2) Plot No. 760, Khata No. 511/1651, Area ACo.260dec. situated in Mouza: Raghunathpur Jali, Ps: New Capital No. 15, Tahasil: Bhubaneswar, Dist: Khurda for Rs.31,50,000/-. And for sale and construction of said flat, the complainant has executed an agreement on 22.02.32013 with O.P.No.1 and O.P.No.2 & 3 both are witness in said agreement. The O.P.No. 1 & 2 are having relation of father and son and doing business of real estate and construction of building by registering a company under the Companies Act, 1956 in the name & style of M/s UMS Developers Pvt. Ltd. Berhampur. The complainant has deposited the entire amount to the O.P. by way of bank deposits and by cash in different dates and to that effect the O.P.No.1 issued the Money Receipt to the complainant. But the O.Ps have cunningly handed over the flat No.1 of 2nd floor to the complainant for the same price at aforesaid project by issuing of letter dated 15.03.2015 in favour of one Smt. Draupadi Subudhi wife of B.Rajendra Subudhi instead of at 1st floor, which speaks volumes against the O.P.No.1 and it tantamount to unfair trade practice. The said flat was not given in registration as per statutory law of the land by the O.P.No.1 to the complainant intentionally and deliberately avoided when demanded by the complainant. After taken over of the possession of said flat, the complainant has installed and affixed the fan, light and related furniture and fixtures in the said flat and thereafter, the complainant has given the said flat on rent to one Praveen Gaurav, S/O Yadunandan Prasad of Jharkhand state. As the matter stood thus, the O.P.No.1 and 2 have disposed of the said flat No.J at 2nd floor for Rs.38,00,000/-without implicit consent of the complainant to a stranger and refunded amounting of Rs.12,00,000/- only to the complainant out of said Rs.38,00,000/-. In constraint the complainant has handed over the possession of the said flat to the O.P.No.1. Meanwhile the complainant has approached several times to refund the rest amount or hand over the said flat and accordingly, the O.P.No.1 & 2 have issued 4 numbers of cheques for Rs.8,00,000/-. Out of said 4 numbers of cheques, O.P.No.2 issued a cheque No.007280 for Rs.50,000/- dated 25.12.2018 and one Smt. Doki Sujata for 3 numbers of cheque for total amount of Rs.7,50,000/- dated 22.04.2018/No.00025, 10.06.2018/No: 000029 and 07.02.2018/No.000020 who is stranger to the complainant and while submitting said cheques, the same became dishonored due to not having sufficient fund in the bank account. Now both of the O.Ps are having total outstanding to refund to the complainant is sum of Rs.26,00,000/- along with interest @18% per annum from the date of sold of flat No. J of second floor. The complainant has approached the O.P. several times at their office and residence at Berhampur but both of the O.Ps are avoided to meet in every point of time. Due to non-payment of the said outstanding, the complainant could not able to conduct proper treatment of his wife and now she is suffering from multiple disorder in her body in this old age. The complainant issued advocate notice to the O.Ps on 15.10.2019. The O.P.no.1 & 2 not claimed the said notices after intimation served by the postal Department but the O.P.No.3 duly acknowledged the said notice on 04.12.2019 and chooses to reply through his advocate to the complainant on 06.12.2019 which was received on 20.12.2019. The O.P.No.3 admitted in his reply dated 06.12.2019 that ‘the entire transaction has been executed and handled by the O.P.No.1’. By these act of the O.Ps the complainant is suffering irreparably and facing untoward agonies mentally, financially and physically by visiting pillar to post of all of the offices of the O.Ps, which speaks volumes against O.Ps and their company and also tantamount to deficiency in services and unfair trade practices. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.P.No.1 & 2 to pay the outstanding amount of Rs.26,00,000/- with 24% interest pa, compensation of Rs.5,00,000/- and litigation cost of Rs.3,15,040/- in the best interest of justice.
3. Notice was issued to the O.Ps. Duly acknowledged the notices of the Commission but they did not appear nor filed any written version.
4. On the date of hearing of the consumer complaint, the authorized representative for complainant is present. We heard argument from him for the complainant at length and perused the complaint petition, written argument and materials placed on the case record. It reveals that the complainant had deposited Rs.38,00,000/- on different dates for purchasing of the flat No.J at 1st floor, and the O.P. refunded amounting of Rs.12,00,000/- only to the complainant out of Rs.38,00,000/-. The complainant is entitled to received Rs.26,00,000/- from the O.Ps. Though notice was sent by this Ld. District CDR Commission, Ganjam Berhampur for appearance and filing written version by the O.Ps but the O.Ps did not avail the said opportunity. Hence, taking the materials on the case record as well as the sole testimony of the complainant into consideration, we hold that the O.Ps are negligent in rendering proper service to the complainant as such we hold that there is deficiency in service on the part of the O.Ps. The Law is well settled in case of Emmar MGF Land Ltd. & Ors. vs. Amit Puri – [II (2015) CPJ 568 (NC)], the national Commission has held that it is the discretion of the complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation and it is well within his right to seek for refund of the principal amount with interest and compensation. Hence in view of the principle laid down in the above case, the Commission allowed the case of the Complainant and the Opposite Party is directed to repay the amount of Rs.26,00,000/- (Twenty Six Lakhs) with simple interest along with reasonable compensation and litigation cost. Though it is an extra-ordinary case, the complaint being senior citizen waiting for last four years to get back the above deposited amount, hence he may be awarded the interest at higher side. The Hon’ble National Commission has held in Omesh Khanna & Anr. v. M/s Shipra Estate Ltd. & Jai Krishan Estate Developers Pvt. Ltd. and Anr. reported in 2021 (4) CPR 157 (NC) that, while in most cases compensation awarded is calculated with 9% interest, in case of extra-ordinary, the Commission may award 18%.
5. On foregoing discussion and in view of the clear position of law mentioned supra, the complainant’s case is an extra-ordinary case allowed against the O.Ps. The Opposite Parties No.1 & 2 are jointly and severally liable as such they are directed to refund balance amount of Rs. 26,00,000/- only along with 12% interest per annum from the date of filing of this case i.e. 26.03.2021 to the complainant within 45 days from receipt of this order. Further the O.P. is also directed to pay Rs.50,000/- as cost of litigation to the complainant within the above stipulated period failing which all the dues shall carry 16% interest per annum till its actual date of realization and the complainant is at liberty to take appropriate steps in accordance to the Consumer Protection Act, 2019 for realisation of all dues.
This case is disposed of accordingly.
The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.
A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019 or they may download same from the www.confonet.nic.in to treat the same as if copy of the order received from this Commission.
The file is to be consigned to the record room along with a copy of this Judgment.
Pronounced on 27.06.2023
