In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/185/2023.
Date of filing: 29/09/2023. Date of Final Order: 03/07/2024.
Smt. Jamuna Chatterjee,
W/o. Ranjan Chatterjee,
resident of 31/A, Sadgopepara Lane,
P.O. Mahesh, P.S. Serampore,
District-Hooghly, PIN-712202, West Bengal,
and also residing at 618/C, G. T. Road,
Serampore, Tirupati Apartment,
Flat No. 302, P.O. & P.S. - Serampore,
PIN-712201, West Bengal. ......Complainant
vs
- M/s. Dharitri Infra Venture Pvt. Ltd.
represented by its Direectors,
having its registered office at
Premises No. 194, Cannel Street,
"Pratiksha Building Fourth Floor,
P.S.-Lake Town, District- North 24 Parganas,
P.O.-Shreebhumi, Kolkata- 700048, West Bengal,
and also at DN-51, Merlin Infinite,
Suit No. 606, Sector- V, Salt Lake City, Kolkata-700091.
- Sri Suman Jana,
son of Sri Tapan Kumar Jana, One of the Director
of M/s. Dharitri Infra Venture Pvt. Ltd. Resident of
Rupnarayan pally, Village-Barbarisha, P.O. & P.S.- Kolaghat,
District- East Midnapur, West Bengal, PIN-721134.
- Smt. Dipanwita Samanta,
wife of Suman Jana,
One of the Director of M/s. Dharitri Infra Venture Pvt. Ltd. resident of Village - Kouchandi,
P.O.- Amalhanda, P.S.- Kolaghat,
District- East Midnapur, PIN-721134, West Bengal.
…..opposite parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Babita Chaudhuri, Member.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that The complainant being allured with the proposal of the O.P. No. 2 and 3 for selling of flats in the multi-storeyed building developed on the schedule mentioned property and with a view to purchasing one residential flat being No. J, measuring about 500 Sq. Ft. more or less situated in the 4th floor, Block 14, namely 'ROYAL ENCLAVE' of 2 BHK facility along with Common passage, Lobby etc. which is lying and situated at Mouza- Hatishala, J. L. No. 9, comprised on R. S. Dag No. 1288 appertaining to R. S. Khatian No. 652 under P.S. Kolkata Leather Complex, District- South 24 Parganas, the complainant entered into an agreement with the Opposite Parties on 27th October, 2015.
That in accordance with the terms and conditions stipulated in the said agreement dated 27th October, 2015 the total consideration value of the said flat being No. J was fixed at Rs. 10,80,000/- (Rupees Ten Lac Eighty Thousand) only and the complainant paid a sum of Rs. 3,93,000/- (Rupees Three Lac Ninety Three Thousand) only in several instalments on different dates towards consideration price of the said flat as well as cost of some extra works and the O.P. No. 1 company issued different money receipts on such payments during the period of August, 2015 to June, 2018. According to the agreement ops were bound to deliver its possession within the period of 42 (Forty Two) months from the date of execution of the said Agreement for Sale by and between the O.P. Company and the Complainant. It is pertinent to mention here that 42 months elapsed on 26/03/2019.
That the O.P. Company vide letter dated 23/11/2017 and 02/06/2018 have confirmed regarding the allotment of flat. In the meantime by a letter dated 23/01/2018 The O.P. No. 1 Company have also confirmed that the project in question has been taken up for construction in full force.
Be it mentioned here that primarily the Complainant along with her son namely Rajib Chatterjee (as co-applicant) jointly booked the above referred flat. Due to delay from the end of the O.P. No. 1 Company, he lost interest on the said flat and subsequently withdrew his name by showing personal reason and requested the O.P. No. 1 company to adjust the amount of Rs. 25,000/- as he paid on 07/08/2015 with the application in the name of his mother i.e. Jamuna Chatterjee (Complainant) and on 20/04/2021, the same letter was duly served and received by the office of the O.P. No. 1 company.
Thereafter the Complainant and her husband on numerous occasions contacted with the O.P. No. 1 Company through the O.P. 2 & 3 regarding the progress of the above referred flat but on each and every occasion the O.P. No. 2 & 3 assured that it will be delivered soon and the O.P. No. 2 & 3 orally advised the complainant to arrange the rest fund for further payments. But during May, 2022 the complainant along with her husband went to the spot for inspecting the project progress and unfortunately they felt heart broken when they were shown the vacant land and was informed by the officials of the O.P. No. 1 Company that the project is yet to start and the Complainant shall have to wait until it's being completed within few years. Soon thereafter the complainant decided that she shall not wait further for a uncertain period for her flat and subsequently the complainant requested the O.P. No. 1 Company trough the O.P. No. 2 & 3 for return of advance amount as paid by her and her son amounting to Rs. 3,93,000/-. Accordingly the O.P. No. 2 & 3 advised the complainant to fill up the form for refund of the advance amount on 01/06/2022 and the same was received by the office of the O.P. No. 1 Company on the same day. But unfortunately the advance money has not yet been returned to the complainant till date, although there was a clause on the Refund form that the OP will pay the refund amount in consecutive instalments after completion of stipulated period time of 6 (Six) months i.e. on/after 01/12/2022 and whenever the complainant or her husband asked the O.P. No. 2 & 3 for their money, the O.P. No. 2 &3 and their official misbehaved with the complainant and her husband. Thereafter another 13 months elapsed on false oral assurance from the O.P. No. 2 & 3.
That this deficiency of service on the part of the Opposite parties are completely illegal as they have not only violated all the terms, conditions and assurance but also deprived the complainant from enjoying her lawful rights such as non delivery of Possession of the aforementioned flat and/or Non refund of amount received by the Opposite Parties from the complainant issuing receipts and such conduct of the Opposite Parties constitutes gross deficiency in service as well as unfair trade practice, which is also created mental agony, anxiety and harassment to the complainant
That finding no other alternative the Complainant through her Ld. Advocate Sri Nilanjan Hazra sent a notice dated 02.08.2023 to the opposite Parties either to deliver the possession and registration of her above referred flat or refund the advance amount Rs. 3,93,000/- the said notice was duly served upon the opposite parties.
That even after receiving the same on 04/08/2023, the O.P. No. 1 did not turn up.
Complainant filed the complaint petition praying direction upon the opposite parties to executer and register the sale deed for the property mentioned in the schedule below (on accepting the balance consideration money, if any from the complainant) within a given date and in the alternative to refund the entire consideration money of Rs. 3,93,000/- only paid so far by the complainant towards purchase of the schedule property, along with interest @ 18% p.a. till full payment thereof and to pay a sum of Rs. 75,000/- as compensation for unnecessary and willful delay in executing the sale deed by the ops causing thereby unnecessary harassment, mental agony and anxiety of the complainant and to pay a sum of Rs. 30,000/- as litigation cost and any other relief/ reliefs as ld. Forum deem fit and proper.
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:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- 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 ld. Advocate 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 Serampore, 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. 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.
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 points 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 complainant 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 no 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. 185 of 2023 be and the same is allowed on ex parte with cost.
Opposite parties are directed to refund the total advance amount of Rs. 3,93,000/- only along with interest @ 9% p.a. from the date of this order till realization of full amount in favour of the complainant within 45 days from the date of this order.
Opposite parties are also directed to pay compensation of Rs. 30,000/- for harassment in favour of the complainant within 45 days from the date of this order.
In the event of nonpayment/ non compliance of the above noted direction the opposite parties 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.
Complainant is at liberty to put the final order into execution after expiry of the appeal period.
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.
Dictated and corrected by me.
