26.....27.04.2021.....
Today is fixed for delivery of judgment/final order.
Final order containing 4 pages is ready . It is sealed, signed and delivered in open Forum/Commission.
It is ordered that,
ORDERED
That the complaint case be and same is hereby allowed on contest against the O.P. with a cost of Rs. 10,000/-. The O.P. is directed to refund the advance amount of Rs. 1,40,016/- along with interest @ 6% p.a. with effect from 11.09.2018 till full realization. The O.P. is also directed to pay compensation of Rs. 50,000/- to the complainant for deficiency in service and mental pain and agony. The O.P. is directed to comply the order 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. 23 OF 2019
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
07.02.2019 19.02.2019 27.04.2021
Present : President : Asish Kumar Senapati
Member : Jagdish Chandra Barman
Member : Sangita Pal
COMPLAINANT : Sri Ratan Kumar Chakraborty, S/O – Late Santimoy Chakraborty, of P-38, Kanungo Park, Garia, Kolkata – 700088.
Versus
O.P/O.Ps : M/s. BROADWAY REALTORS PRIVATE LIMITED, a Company incorporated under the Companies Act and having it’s registered office at P593, Purna Das Road, P.S. – Lake, Kolkata-700 029.
Sri Asish Kumar Senapati, President
This is a consumer complaint under section 12 of the C.P. Act, 1986.
This is a complaint filed by one Ratan kumar Chakraborty (hereinafter referred to as the complainant) against M/s. Broadway Realtors Pvt. Ltd. (hereinafter referred as O.P.) praying for a direction either to execute and register the deed of conveyance in favour of the complainant in respect of plot No. AI/08 measuring 2 kathas in “Ujjaini Project” or to refund advance amount of Rs. 1,40,000/- with interest @ 18% p.a. w.e.f. 08.06.2008 till payment, compensation of Rs. 50,000/- and litigation cost of Rs. 20,000/- alleging deficiency in service. It is the specific case of the complainant that she entered into an agreement with the O.P. on 18.06.2004 in respect of plot No. AI/08 measuring 2 Kathas in “Ujjaini Project” at a consideration of Rs. 1,40,000/-. The complainant paid the said amount of Rs. 1,40,000/-but the O.P. did not handover the plot in question after development. The complainant requested the O.P. to refund Rs. 1,40,000/- as per agreement. but of no result. The complainant sent written notice on 11.06.2018 praying for refund of Rs. 1,40,000/- as per agreement but of no result. Hence, the case has been filed praying for reliefs against the O.P.
The O.P. appeared after receiving notice and contested the case by filing W.V. on 07.06.2019. It is the case of the O.P. that the complaint case is not maintainable. It is the specific case of the O.P. that the O.P. could not execute the work of development due to political problem and ultimately the O.P. conveyed the problems faced by the O.P. and proposed to refund the money but due to financial crisis the O.P. could not refund the money. The case is not maintainable as there is an arbitration clause in Para-19 of the agreement but the complainant has not referred the dispute to the arbitrator. The O.P. prays for dismissal of the case with cost.
On the basis of the above versions, the following points are framed for proper adjudication of the case :-
- Is the complainant a consumer?
- Has this Commission jurisdiction to entertain the complaint?
- Has the O.P. any deficiency in service?
- Is the complainant entitled to get any order as prayed for?
DECISION WITH REASONS
Point Nos. 1 and 2 :
The Ld. Advocate for the complainant submits that the complainant is a consumer as he entered into an agreement with O.P. on 18.06.2004 and paid consideration amount of Rs. 1,40,000/- as per agreement. The Ld. Advocate for the O.P. has not taken part in hearing of argument. It has been stated in W.V. that the complaint is not maintainable as the dispute between the parties has not been referred to the arbitrator as per clause 9 of the agreement.
Perused the materials on record and we have considered the submission of the Ld. Advocate for the complainant. On a careful consideration over the agreement for sale dated 18.06.2004 and the payment details supplied by the complainant, we find that the complainant paid Rs. 1,40,016/- and the last payment was made on 10.09.2008. The O.P. has not handed over the plot in question in terms of the agreement for sale dated 18.06.2004. Hence , we hold that the complainant is a consumer.
On going through the materials on record, we find that the cause of action arose within territorial jurisdiction of this Commission and the claimed amount is also within pecuniary jurisdiction of this Commission. Hence, we hold that the Commission has both pecuniary and territorial jurisdiction to entertain the complaint.
Point Nos. 3 and 4 :
The Ld. Advocate for the complainant submits that the complainant paid Rs. 1,40,000/- as per agreement dated 18.06.2004 but the O.P did not hand over the possession and did not execute and register the plot No. AI/08 of “Ujjaini Project” in terms of the agreement for sale after development. The Ld. Advocate for the O.P. has not taken into part in hearing of argument. The O.P. has asserted in Para-18 of its evidence on affidavit that the consumer complaint is not maintainable as there is an arbitration clause in the agreement for sale.
We have gone through the W.V. evidence adduced by both sides and documents filed by the complainant. There is no dispute that the complainant entered into an agreement with the O.P. on 18.06.2004 for purchase of 2 Kathas of developed land in plot No. AI/08 in “Ujjaini Project” measuring about 2 Kathas at a consideration of Rs. 1,40,000/- on certain terms and condition as per payment schedule issued by the O.P. from the customer ledger from 01.01.2003 to 31.11.2015,the complainant paid Rs. 1,40,016/- up to 10.09.18. The O.P. has stated in its W.V. and evidence on affidavit that the O.P. could not complete the work of development due to political problems. It is clear that O.P. has not taken any step to refund the advance amount received in spite of repeated requests made by the complainant. In our considered opinion the O.P. has deficiency in service as it could not perform its obligation as per agreement dated 18.06.2004. Therefore, we hold that the complainant is entitled to get back the amount of Rs. 1,40,016/- along with simple interest @ 6% p.a. with effect from 11.09.2008 till realisation. We also think that the complainant is entitled to get compensation of Rs. 50,000/- for mental pain and agony and deficiency in service.
In the result, the case succeeds.
Fees paid are corrected.
Hence, it is ordered,
Hence,
ORDERED
That the complaint case be and same is hereby allowed on contest against the O.P. with a cost of Rs. 10,000/-. The O.P. is directed to refund the advance amount of Rs. 1,40,016/- along with interest @ 6% p.a. with effect from 11.09.2018 till full realization. The O.P. is also directed to pay compensation of Rs. 50,000/- to the complainant for deficiency in service and mental pain and agony. The O.P. is directed to comply the order 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 .
Dictated and corrected by me
President
