13....22.09.2021....
Today is fixed for delivery of judgment/final order.
Final order is ready . It is sealed, signed and delivered in open Forum/Commission.
It is ordered that,
ORDERED
That the complaint case be and the same is hereby allowed ex parte against the O.P. with cost of Rs. 2,000/-
The O.P. is directed to refund the rest advance amount of Rs. 4,46,883/- along with interest @ 7% p.a w.e.f. 29.10.2016 till full realization within 60 days from the date of this order.
The O.P. is also directed to pay compensation of Rs. 5,000/- for mental trauma and harassment to the complainants by 60 days from the date of this order.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAS
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C.NO._43_ OF 2020
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
13.03.2020 24.03.2020 22.09.2021
Present : President : Asish Kumar Senapati
Member : Jagdish Chandra Barman
COMPLAINANT : 1. Sri Amit Sengupta, S/o – B.K. Sengupta
2. Smt. Mousumi Kar , W/o - Sri Amit Sengupta, Residing at Siddha Town, Flat No. – NI-107, Berabari, Rajarhat, Shikhar Bagan, P.O. – Gopalpur, P.S. – Airport, Pin code – 700136, North 24 Parganas.
Versus
O.P/O.Ps : 1. M/S. Usashi Realstates Pvt. Ltd. (A Development Concern) having it’s registered office at 594/1, Dakshindari Road, “Bima Abasan” Flat No. – E2/1, First floor, P.O. – Sreebhumi, P.S. – Lake Town, Kolkata – 700048, and also at 81, Golaghata, VIP Road, Flat No. 1B, Radhakunja Apartment, Near Bika Banquet, Kolkata – 700048, West Bengal, and having it’s Marketing Office at 86, Golaghata, VIP Road, Ganga Apartment, 2nd Floor, above Shree Venkatesh Banquet, Kolkata- 700048, West Bengal.
Represented by it’s Authorized Signatory Mr. Supriya Patra, S/o- Asis Kumar Patra, of Village – Radhapur, P.O. – Madhabpur, P.S. – Bhupatinagar, Pin Code – 721626, District – Purba Medinipur.
Sri Asish Kumar Senapati, President
One Sri Amit Sengupta and another (hereinafter referred to as the complainants) filed the case against M/S. USASHI REALSTATES Pvt. Ltd. represented by its Authorised Signatory Mr. Supriya Patra (hereinafter referred to as the O.P) praying for refund of earnest or advanced amount of Rs. 4,46,883/- with interest @ 7% p.a. till realization of the entire amount, compensation and litigation cost against the O.P. alleging deficiency in service.
The sum and substance of the complaint is as follows:
The complainants being husband and wife booked a flat at a consideration of Rs . 17,92,554/- on 28.10.2016 and entered into an agreement with the O.P. on 23.04.2018 . The complainants paid Rs. 4,71,883/- out of total consideration money of Rs. 17,92,554/- on the date of booking and the O.P. agreed to deliver the flat within 40 months from the date of execution of the agreement for sale. The O.P. did not fulfill its promise and the complainants requested the O.P. for refund of the advanced amount and thereafter the O.P. refunded only Rs. 25,000/- out of Rs. 4,71,883/- and the O.P. did not refund the balance amount of Rs. 4,46,883/- in spite of repeated requests. The complainants suffered mental trauma for which they claimed Rs. 12,00,000/- as compensation and Rs. 50,000/- as cost of litigation against the O.P.
The case was filed on 13.03.2020 and admitted on 02.09.2020. The O.P. appeared on 11.11.2020 and filed W.V. stating that the case is not maintainable as there is an Arbitration clause in the agreement. The O.P. denied the allegations made out in the complaint stating that the O.P. had already refunded Rs. 25,000/- to the complainant through NEFT dated 29.07.2019. The O.P. prays for dismissal of the complaint.
The O.P. did not file evidence in spite of repeated orders. The complainants filed evidence on affidavit on 21.12.2020 and the Ld. Advocate for the complainants also filed brief notes of argument on 27.04.2021.
On the basis of the above versions, the following points are framed for proper adjudication of the case :-
- Are the complainants consumers under the provisions of C.P Act?
- Is the case maintainable?
- Is there any deficiency in service on the part of the O.P.?
- Are the complainants entitled to get any relief against the O.P., as prayed for?
DECISION WITH REASONS
Point no. 1 :-
The Ld. Advocate for the complainants submits that the complainants booked a flat on 28.10.2016 by making payment of Rs. 4,71,883/- and entered into an agreement with the O.P. on 23.04.2018. It is urged that complainants are consumers under the O.P.
None appears on behalf of the O.P. at the time of the hearing of argument. On a careful consideration over the materials on record, we find that the complainants paid Rs. 4,71,883/- in favour of the O.P. on 28.10.2016. It is the version of the complainants the O.P. did not refund the total advance amount in spite of repeated reminders. On perusal of a series of correspondence between the parties, we find that the complainants paid Rs. 4,71,883/- and the O.P. had not even refunded the entire advance amount in spite of repeated reminders. Hence, we hold that the complainants are consumers.
Point no. 2 :-
The Ld. Advocate for the complainants submits that the complaint is maintainable as the complainants are the consumers.
The O.P. raised the point in its W.V. in Para-4 that the complaint is not maintainable as there is an Arbitration clause in the agreement.
We have considered the materials on record and the contention of the O.P. as raised in Para-4 of the W.V. On a careful consideration, we think that the Arbitration clause cannot be a bar to file the complaint case. Therefore, we hold that the complaint case is maintainable.
Point no. 3 & 4 :-
The Ld. Advocate for the complainants submits that the complainants paid Rs. 4,71,883/- as advance out of total consideration amount of Rs. 17,92,554/-. It is urged that the O.P. refunded only Rs. 25,000/- and the rest amount of Rs. 4,46,883/- is still unpaid in spite of repeated requests. It is argued that the complainants are entitled to get the advance amount back along with interest, compensation of Rs. 12,00,000/- for mental trauma and harassment and litigation cost of Rs. 60,000/- against the O.P. None appears on behalf of the O.P. at the time of hearing of argument. It is the case of the complainants that the O.P. refunded of Rs. 25,000/- only out of Rs. 4,71,883/-. Therefore, it is clear that the O.P. had not refunded the advance amount of Rs. 4,46,883/- in spite of repeated reminders. The O.P. vide its letter dated 24.05.2019 addressed to the complainant No. 1 agreed to pay Rs. 4,35,524/- by September, 2019 but the O.P. had not even kept its words by making payment in the line of the letter dated 24.05.2019. The complainants and the O.P. have stated about an agreement for sale dated 23.04.2018 but no agreement for sale has been filed by either of the parties. A photocopy of unsigned agreement for sale is filed by the Complainants but the same is not tenable in the eye of law. Considering the facts and circumstances, we find that the complainants booked a flat and paid Rs. 4,71,883/- on 28.10.2016 and subsequently requested the O.P. for cancellation of their booking and requested the OP to refund the amount of advance. It is the case of the complainants that the O.P. refunded the amount of Rs. 25,000/- to the complainants out of Rs. 4,71,883/-. Therefore, the O.P. is duty bound to refund the rest advanced amount of Rs. 4,46,883/- along with interest @7% p.a. w.e.f. 29.10.2016 (day after making payment of advance amount by the complainants). In our considered opinion , the OP has deficiency in service due to non refund of advance amount. We also think that the complainants are entitled to get Rs. 5,000/- as compensation and Rs. 5,000/- as litigation cost against the O.P.
Both points are thus disposed of.
In the result, the complaint case succeeds.
Fees paid are corrected.
Hence,
ORDERED
That the complaint case be and the same is hereby allowed ex parte against the O.P. with cost of Rs. 2,000/-
The O.P. is directed to refund the rest advance amount of Rs. 4,46,883/- along with interest @ 7% p.a w.e.f. 29.10.2016 till full realization within 60 days from the date of this order.
The O.P. is also directed to pay compensation of Rs. 5,000/- for mental trauma and harassment to the complainants by 60 days from the date of this order.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
