FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainant has filed this case U/s 12 (1) (a) of CP Act, 1986 submitting, inter alia that he is a rightful and lawful owner of a Premises No. 4/3A, Orient Road (assessee No. 110643200119), under PS-Beniapukur, KMC, Ward No. 64, Borough No. VIII, District-South 24 Pgs, Kolkata-700017 which is fourth storied building comprised with more or less 6671 sq. ft. super built up area in total erected upon a land measuring about 3 cottahs, 18 chattaks more or less.
It is further stated by the complainant that the OPs are carrying their business within the local limits of Bhawanipore PS i.e. within territorial jurisdiction of this forum and the OPs Mr. Sushil Kr. Jajodia and Mrs. Anita Jajodia i.e. the OP No. (b) and (c) are the directors and are working for gain with the OP Co. and its office mentioned in the cause title of the petition of complaint. The OP No. (a) i.e. Mr. Vimal alias Bimal Singh Baid is also one of the directors of M/s Anu Enclave Pvt. Ltd. The OP (a) is residing within the local limits of Narkeldanga P.S. So, the complainant seek necessary permission U/s 11 (2) (b) of CP Act, 1986 from this forum to file the case against the OPs.
It is further stated by the complainant that sometimes in the year, 2015 the OP (a) Vimal alias Bimal Singh Baid and other two directors i.e. OP (b) and (c) of M/s Anu Enclave Pvt. Ltd. having its ROC No. 056827 and Pan No. AACCA5385K informed the petitioner/complainant that the OP Co. deals with Real Estate activities including the development of any property and arranged the selling of the same. Accordingly, the OP (a) approached the complainant on behalf of the OP Co. that their Co. will arrange valid sanction from KMC as well as they make necessary arrangement for the sanctioning of a valid floor plan which will help the complainant to construct another floor over the existing structure of the aforesaid premises being No. 4/3A, Orient Road, Kolkata-7000017 and to conduct entire process. They claimed a sum of Rs. 8,50,000/- from the complainant.
They verbally assured the complainant that on payment of said money as mentioned above, the aforesaid work would be done entirely by them within 3 months from the date of payment. In case of failure, they will refund the entire amount to the complainant as early as possible. Being satisfied with the assurance of the OPs and on good faith, the complainant paid the entire amount of Rs. 8,50,000/- to the OPs out of which a sum of Rs. 3,00,000/- was paid by the complainant through an A/c payee cheque drawn on UBI Bank, Park Circus Branch, being cheque No. 412573 dated 04.04.2015 which had been debited from the saving account of the complainant being No. 0066010202576 dated 06.04.2015. He also paid Rs. 1,50,000/- only by another A/c payee cheque drawn on UBI Bank, Park Circus Branch, being cheque No. 412574 dated 16.04.2015 which was debited from the same savings account of the complainant on 20.04.2015 and rest amount of Rs. 4,00,000/- was paid by the complainant to the OP in cash. The OPs issued the money receipt of Rs. 7,50,000/- only out of which one money receipt of Rs. 3,00,000/- issued by them on 04.04.2015 on the letter head of M/s Anu Enclave Pvt. Ltd. duly signed by the OP (a) Mr. Vimal Singh Baid bearing the stamp and seal of the Co. and another money receipt of Rs. 4,50,000/- was issued on 30.04.2015 on their letter head but it is alleged by the complainant that no money receipt was issued by the OP members in respect of rest amount of Rs. 1,00,000/-which was paid by the complainant to the OP Co.
It is further stated by the complainant that in spite of making of full payment of the money, the OPs did not take any single steps to execute the work, though they were bound by time schedule, the complainant made a series of written as well as verbal communications with the OP and ultimately, served the legal notice on 03.04.2017 and 12.05.2017 claiming the refund of money paid by him which was duly served by the OP but till date they did not take any proper steps to execute the work or to refund the money. The complainant further stated that he also informed the matter to local PS.
It is stated by the complainant that being a consumer without having any other alternative, he has filed this petition of complaint before this forum with a prayer to give direction to the OPs to refund entire consideration money of Rs. 8,50,000/- to the complainant along with interest as per present bank rate.
The complainant further prayed for compensation of a sum of Rs 1,00,000/- from the OP for harassment, mental pain and agony along with litigation cost of Rs. 5,000/- but in vain.
The OPs have contested the claim application by filing a WV denying all the material allegations leveled against them.
It is the case of the OPs that this forum has got no jurisdiction to entertain and adjudicate the instant case and the dispute raised by the complainant cannot be entertained within the ambit of CP Act, 1986.
It is further alleged by the OP that the complainant is not a consumer and the petition of complaint is false, frivolous and baseless which is also bad for non-joinder of necessary parties. The OPs further stated that the transaction in question as entertained by the parties of this case is commercial one and complainant cannot claimed the refund of said consideration amount from the OPs. The complainant himself misbehaved the OP and did not co-operate them to execute the work, though the OPs putting their level best and arranged Govt. registered L.B.S to execute the tough work. The OPs asked the complainant to produce the pervious building sanctioned plan, copy of permission from Fire Department, “No Tax Due Certificate” from KMC, Mutation Certificate, Updated Tax Certificate and other necessary documents but the complainant did not co-operate and not produce all the above stated documents to execute the full work. Such act has been suppressed by the complainant before this forum. So, the petition of complaint has been filed by the complainant is liable to be dismissed.
It is stated by the OPs that they denied the claim of complainant and the complainant is not entitled to any cost, interest, penalty from the OPs. Thus, the petition of complaint is liable to be dismissed with cost.
In view of the fact and circumstances, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
On a close scrutiny of the materials on record and also considering the fact and circumstances of this case as well as position of law, it is held by this commission/forum that it has ample jurisdiction both territorial and pecuniary to adjudicate this case. It is also revealed from the fact and circumstance of this case that it has been filed within the period of limitation and the complainant has/had sufficient cause of action to file this case. So, the case is maintainable within the ambit of law.
It is the case of the complainant that he entered into an oral agreement with the OPs for development of the subject property as mentioned in the schedule in the petition of complaint and as per agreement, the complainant paid a sum of Rs 8,50,000/- in total to the OPs. But from evidence as well as material on record, it appears that the OPs issued money receipt to the complainant only of Rs. 7,50,000/- but no money receipt in respect of Rs. 1,00,000/- has been issued by the OPs.
It is alleged by the complainant that in spite of laps of statutory period i.e. within 03 months from the date of entire payment of Rs. 8,50,000/- lastly on 30.04.2015. So, from the date of payment of entire payment till filing of this case, the OPs failed to comply their duties and responsibilities in respect of completion of the development work of subject premises which they also admitted in their WV and BNA.
In their BNA, the OPs admitted that they received the money from the complainant against money receipt issued by them but they stated that they received Rs. 7,50,000/- instead of Rs. 8,50,000/- and the commission opined that if a person paid Rs. 7,50,000/- to the OPs, he can paid Rs. 8,50,000/- also but the OPs cunning did not issue any money receipt to that effect.
The OPs also challenged that the complainant is not a consumer because he wanted to develop the subject property for commercial purpose but it is the basic case of the complainant that he entered into an oral agreement with the OPs/ developer and constructer for development of the subject property for his residential purpose without making any allegation for allegation sake to that effect the OPs failed to prove their plea by adducing supporting evidence. So, the commission/forum is not in a position to accept the plea of the OPs in this respect rather the commission is of view that the complainant entered into oral agreement with the OPs for development and construction of his subject land against a sum of Rs. 8,50,000/-. Admittedly, the OPs received that amount but deliberately they failed to comply the terms and conditions of oral agreement and did not do the development work. Neither they perform development work nor refund the money to the complainant paid by him even on repeated request.
It is also proved from the evidence on record that the OPs did not pay any heed to the repeated request of the complainant for completion of development and construction work of the subject property which caused harassment, mental pain and agony to the complainant and which compelled the complainant to serve a legal/demand notice dated 03.04.2017 and 12.04.2017 upon the OPs which was duly received by them but the OPs till filing of this case did not comply the terms and conditions of the oral agreement, or did not take fruitful step to that effect.
Though no written agreement was executed by and between the parties but the money receipt issued by the OPs and also from the admission of the OPs that they received the money from the complainant for the development work of the subject property. It is proved that the OPs have violated their promise and assurance which proved their deficiency in service on their part for which they are liable to give compensation to the complainant and also refund the amount of Rs. 8,50,000/- to the complainant which received from him (complainant) for development work of the subject property.
In view of discussion made above, it is the view of this
Forum that the complainant is a consumer and he had sufficient cause to file this case against the OPs. The OPs are the service provider to the complainant. It is also proved beyond any doubts that they received a sum of Rs 8,50,000/- from the complainant for development of the subject property mentioned in the petition of complaint and they failed to perform their responsibilities duties and obligation to complete the development work even on lapse of years together i.e. till filing of this case. So, the conduct of the OPs proved that there was deficiency in service and obligation on the part of the OPs for which they are liable to give compensation to the complainant and also liable for refund of the amount of Rs. 8,50,000/- which they received from the complainant for development work of the subject property as mentioned in the petition of complaint.
Hence, being a consumer the complainant could be able to prove his case against the service providers/OPs beyond all reasonable doubt and is entitled to get the reliefs as prayed for.
All the points of consideration are considered and decided in favour of the complainant.
The case is properly stamped.
Hence,
Order
that the case be and the same is decreed on contest against the OPs with cost of Rs. 5,000/-.
The OPs are directed to refund the amount of Rs. 8,50,000/- to the complainant along with interest @ 6 % p.a. of the aforesaid amount either jointly or severally from the date of filing of this case till realization within 45 days from this date of order.
The OPs are further directed to pay compensation to the tune of Rs. 30,000/- either jointly or severally within 45 days from the date of this order along with litigation cost of Rs. 10,000/-.
Copy of the judgment be uploaded forthwith on the website of the commission for perusal.
