In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/63/2021.

Date of filing: 31/03/2021.                     Date of Final Order: 29/09/2023.

1. Amulya Chandra Das,

          s/o Late Dulal Chandra Das,

2. Amit Kumar Das,

s/o Amulya Chandra Das,

both residing at Shibtala, Suksanatantala,

Chandannagar, P.O. Chandannagar,

P.S. Chandannagar, Dist. Hooghly,

PIN. 712136, West Bengal.….complainants

1. M/S/ Dharitri Infraventure Pvt. Ltd.

Having its registered office at Premises no. 194,

Cannel Street, “Pratiksha building” 4^th floor,

P.O. Shreebhumi, P.S. Lake Town,

Dist. North 24 Parganas, Kolkata 700048,

Being represented by its directors namely:

1. Sri Suman Jana,

s/o Sri Tapan Kumar Jana,

residing at Rup Narayan Pally,

village Barbarisha, P.O. & P.S. Kolaghat,

Dist. East Medinapur, PIN. 721134.

2. Smt. Dipanwita Samanta,

w/o Sri Suman Jana,

r/o Village- Kouchandi, P.O. Amalhanda,

P.S. Kolaghat, Dist. East Medinapur, PIN. 721134.

…..….opposite parties

Before:            President, Shri Debasish Bandyopadhyay.

                           Member,  Debasis Bhattacharya.

                          Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 1986/2002 by the complainant stating that the OP made a public offer all about inviting application for booking 1 BHK, 2 BHK and 3 BHK flats at Royal Enclave, Rajarhat, at a price range starts from Rs.7.50 lacs which was published in Ananda Bazar Patrika, Friday, 24^th 2015,Page no.13.  The OP claimed in this publication that proper application Forms will be available from United Bank of India at their 26 named Branches including Uttarpara Branch, Hooghly.  It is also published by the OP for Housing loan Mr. Karan Sood:Karans@unitedbank.co.in.    The Op having adopted camouflage published a rosy wrongful information in the said Ananda Bazar Patrika for bringing maximum  number of common person in their net and more particularly to lure gullible persons to invest their hard earned money in the published civil residential flat at Royal Enclave  which will be allotted through lucky drawings of lottery and the last date of issuing and accepting application forms with fees was restricted to 20 August-2015.  The complainant submits that he paid the sum of Rs.500/- in cash to theOP towards application form for booking one BHK flat at Royal Enclave on 01.08.2015 and the OP haying accepted cash of Rs.500/- from the complainant issued a printed money receipt no.004799 dated.01.08.2015 of Royal infra Developer, 549/1, Dakhindari Road, Kolkata-700048 in his name.

The complainant having seen and honestly relied upon the said publicly advertised printed offer for inviting applications for booking 1BHK, 1BHK and 3 BHK flats provided with amenities like swimming pool, baby ool gymnasium meditation & Yoga area Jogging track Basket ball court Ten court School Market complex cricket pitch Indoor Games Club house Amphi Theatre, Community Hall Barabeque Area Garden and more, had applied for one 1 BHK flats measuring at about 350 sq. ft. including all common service areas, amenities and facilities thereto of the said building of the housing complex known as “Royal Enclave” as more specifically stated in the schedule page no.5 of memorandum of Understanding dated 17.10.2015 for the total consideration of Rs.750000/- as per clause no. 2 of the said MOU—age no.4.

The complainant submits that accordingly he paid the sum of Rs.1.00 lakh to Royal Infra Developer vide account payee cheque no.704937 drawn on State Bank Of India Chandannagar Branch, in favour of Royal Infra Developer dated 01.08.2015 against printed Money receipt no.004799 dated.01.08.2015.  Evidently a public sector united bank of India has been involved in selling flat booking application forms against collection of public money on behalf of the OP just to mislead common people’s trust to invest money in the project.  In the process the OP not only has collected huge amount of public money but has misappropriated public money.  The OP equally published camouflage information in Ananda Bazar Patrika dated 24.7.2015 just to attract more applicants and to deceive the complainant in particular and others in general.

The complainant submits that he deposited Rs.500/- comprising ofRs.200/- being application fee Application Formno.4799 and Rs.300/- being bank charges to United Bank of India in favour of Dhritri Infraventure Pvt Ltd Account no.0865050010113, Receipt no.004799 dated 01.8.2015 for one 1BHK flat 350 sq ft flat and further he deposited Rs.500/- comprising of Rs.200/- being application fee and Rs.300/- being bank charges, transaction ID SG231784 dated.31.7.2015 United Bank of India in favour of Dharitri Infraventure Pvt Ltd Account No.0865050010113, Receipt no.002619 dated.31.07.2015 for another one 1 BHK flat 350 sq ft area.

The complainant submits that he made following payment to Dharitri Infraventure Pvt. Ltd, Account no.0865050010113, against proper printed duly stamped and signed money receipts issued by Dharitri Infraventure Pvt. Ltd, CIN-U45400WB2014PTC201136 and or Royal Infra Developer which is explicitly stated in the complaint petition.

The complainant submits that Dharitri Infraventure Pvt. Ltd, 194 Canel street, 4^th floor, Kolkata-700048 informed the complainant confirming his booking of 350 sq. flat at Royal Enclave vide letter dated 14.01.2016 and the op issued a letter dt. 26.4.2017  to the complainant confirming that construction work is in progress and United bank is ready to process for bank loan on this project with a request to visit their office along with few cited documents for processing loan but op did communicate most unfortunately all about that the construction is in progress and the op did not even start any civil work at about the flat at Royal Enclave even after lapse of 49 months and hence  Clause no. 3 of MOU has been grossly violated by the owner/ developer.

Complainants filed the complaint petition praying direction upon the opposite parties to refund a sum of Rs. 3,25,000/- along with 15% interest on and from date of each payment received by the ops and to pay a sum of Rs. 17,00,000/- as compensation for mental, physical and financial sufferings/ agony/ harassment etc and to pay a sum of Rs. 30,000/- toward legal and incidental costs.

Op side appeared but has not filed any W/V inspite of getting statutory time limit. So, this case is heard ex parte against op.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

Argument highlighted by the ld. Lawyers of the parties

Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.

            Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties inspite of receiving notice have not filed any W/V and also have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chandannagore, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. It has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus on close examination of the pleadings of the complainant it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. As per observation of the Hon’ble  Apex Court adopted in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor which is reported in AIR2022SC1824 this case is maintainable.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the complainant and there is also necessity making scrutiny of the documents filed by the petitioner of this case.

            For the purpose of arriving at just and proper decision in respect of points of consideration nos. 4 and 5 this District Commission finds that there is necessity of making scrutiny of the evidence given by the complainant. In this regard it is important to note that the ops have neither filed any W/V nor filed any evidence on affidavit to disprove the case of the complainant. On close examination of the evidence given by the complainant side it is revealed that the complainant has categorically described his case in the evidence and the evidence given by the complainant is also supported by documents. It is also revealed that the evidence (oral and documentary) which is given by the complainant side remains unchallenged and/ or uncontroverted as no cross examination has been highlighted in this case by the ops. After going through the materials of this case record this District Commission finds that there is reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side. It is also transpires that the complainant has proved his case by way of adducing evidence in connection with the points of consideration nos. 4 and 5 which have been adopted in this case.

All the above noted factors are clearly reflecting that the complainant is entitled to get relief in this case which has been prayed by this District Commission.

In the result it is accordingly

ordered

that the complaint case being no. 63 of 2021 be and the same is allowed on contest but in part.

Opposite party nos. 1 and b are directed to pay amount of Rs. 3,25,000/- along with interest @ 9% per annum within 60 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.