FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainant has filed this case u/s 35 of CP Act, 2019.
The fact of the case in a nutshell is that the complainant intends to purchase a flat from the OPs measuring about 427 sq. ft. consisting of one bed room in his ‘My Town’ housing complex situated at Baruipur and she entered into an agreement for sale with the OP on 04.04.2017 and paid a sum of Rs. 1,56,000/- as advance payment towards the consideration money of the subject flat. The complainant paid Rs 1,50,000/- to the OP in 3 cheques being No. 311162 dated 19.08.2016, 311164 dated 05.11.2016 and 311168 dated 03.04.2017. The OP received that amount against two money receipt which are marked as annexure A and annexure A-1. The OP also issued the allotment letter dated 19.08.2017 in favour of the complainant .The allotment letter has marked as A-2.
The agreement for sale has been brought into evidence as annexure A-3. It is further stated that it was agreed that the possession of the subject flat would be handed over to the complainant within 36 month from the date of agreement but within one year of signing the agreement, the complainant was asked that the project “My Town” would not be materialized then she opted for refund of advance amount of Rs 1,53,000/-. The OP agreed to refund the amount of Rs. 1,53,000/-. Ultimately, on 15.02.2018 the complainant filled the refund form which is marked as annexure A-4 and after long persuasion, complainant got refund of Rs. 56,000/- only in two installments on 01.09.2018 and 04.01.2019.
The complaint further stated that long after promised period of 06 years however, the OPs did not refund rest amount of Rs. 97,000/- to the complainant. Hence, having no other alternative, the complainant served a legal notice upon the OPs on 08.10.2020 that was duly received by the OP which is marked as A-5.
Hence, this case has been filed by the complainant with a prayer to give direction upon the OPs to refund the rest amount of Rs 97,000/- of advance money paid by the complainant out of Rs. 1,53,000/- along with interest @ 18 % till date and also give direction to the OP to pay compensation of Rs. 25,000/- to the complainant for harassment, mental pain and agony.
The OP has contested the petition of complaint by filing a WV denying all the materials allegation leveled against it. It is stated by the contesting OP that the petition of complaint is barred by limitation. It is further stated that admittedly the complainant entered into an agreement with the OP for purchasing a flat in the project “My Town” situated at Uttarbhar, can transfer to New Royal Enclave project and get the property delivered.
It is further stated that the complainant after getting replacement the proposal of form the OP company rejected all the proposals and filed this complaint before this commission.
It is denied by the OP that it has no intention to refund the complainant’s money rather they have already refund an amount of Rs. 55,000/- to the complainant vide cheque No. 824777 and 003002 and the OP is willing to assure the refund amount of Rs. 98,000/- in 09 installment @ of Rs. 10,888/- installment.
It is alleged by the OP that the complainant has no cause of action to file the case. Thus, the case 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 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 careful perusal of the material and evidence on record, and also considering the fact and circumstances of this case and the position of law it is found that this commission has got the territorial as well as pecuniary jurisdiction to try this case. It is also found that though admittedly the OP received the earnest money from the complainant amounting to Rs. 1,53,000/- only towards the valuation of the subject flat but even after cancellation of the booking and agreement for sale by the complainant . The OP agreed to refund the entire amount as per request of the complainant but they only refund a sum of Rs. 56,000/- to the complainant out of Rs 1,53,000/- by 2 installments on 01.09.2018 and 04.01.2019 and even on repeated request the OPs did not refund the rest amount of earnest money of Rs. 97,000/-.
Hence, having no other alternative the complainant has filed the case before the commission on 10.11.2020 from which it is crystal clear that there was sufficient cause of action on the part of the complainant to file the case and she filed this case within the period of limitation from which it is held by this commission that there was/is sufficient cause of action to file the case by the complainant and this case is well maintainable in eye of law.
Admittedly, an agreement for sale dated 04.04.2017 (annexureA-3) was executed by and between the parties for purchasing the subject flat in the housing complex namely ‘My Town’. Agreement for sale dated 04.04.2017 on payment of Rs. 1,53,000/- by the complainant as advance money towards the consideration of the flat in question.
It is also admitted fact that the OP received the amount of Rs. 1,53,000/- against money receipt as it is annexed in this case as annexure A-1 collectively. It is also admitted fact that the OP M/s Dharitri Infraventure Pvt. Ltd has issued the allotment letter dated 29.08.2016 (Annexure A-2) in favour of the complainant.
From the evidence on record as adduced by the parties to this case it is evident that subsequently the project of the subject that was not executed and under such circumstances the complainant cancelled the agreement for sale and demanded refund of the earnest money of Rs. 1,53,000/- from the OPs. On several request the OP refund an amount of Rs. 56,000/- only to the complainant as per refund form dated 15.02.2018 but till the date of filing of this case they did not refund the rest amount of earnest money of Rs 97,000/- to the complainant.
The OP in its WV and written argument stated that they are ready to refund the rest amount of Rs. 97,000/- to the complainant but the complainant did not wait for the same and file this case against the OP with malafide intention but for the sake of argument if we hold that the OP is agreed to refund the rest amount of earnest money why they failed to execute the same since 04.01.2019 till the filing of the case dated 10.01.2020 ? Being aggrieved by and dissatisfied with the conduct of the OP and also being harassed by the OP, the complainant rightly filed this case against the complainant being a consumer has rightly filed this case against the OP for getting relief.
However, in view of the discussion made above, it is held by this commission that as and when the complainant entered into an agreement for sale (A-3) on part payment of the earnest amount of Rs. 1,53,000/- since then she is the undoubtedly consumer within the ambit of CP Act, 2019 and the OPs are the service provider. It is also proved by the complainant through her evidence and documents that on several occasion she requested the OP to refund the rest amount of earnest money of Rs. 97,000/- to her but the OP did not pay any heed to her request and harassed her which caused mental pain and agony to the complainant on the basis of such evidence it can safely be held by this commission that the conduct of the OP should be considered as deficiency in service on its part which caused mental pain and agony to the complainant and the OP is liable to give compensation to the complainant for such negligence and harassment.
Under such circumstance and in view of above made discussion, it is opined by the this commission that the complainant being a consumer could be able to prove her case beyond all reasonable doubts and is entitled to get the relief as prayed for.
The case is properly stamped.
All the points of consideration are considered and decided in favour of the complainant.
Hence,
Ordered
That the case be and same is decreed on contest against the OP M/s Dharitri Infraventure Pvt. Ltd. with cost of Rs. 2000/-.
The complainant do get the decree as prayed for.
The OP is directed to refund the amount of Rs. 97,000/- to the complainant along with interest @ 6 % on the amount from the date of filing of the case till realization within 45 days from the date of this order.
The OP is further directed to pay Rs. 10,000/- as compensation to the complainant for harassment, mental pain and agony along with litigation cost of Rs. 5,000/- within 45 days from this date of order.
If the OP will fail to comply the decree within stipulated period as mentioned above the complainant will be at liberty to execute the same as per law.
