HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. The instant complaint is under section 18 read with section 12 of the Consumer Protection Act, 1986 (in short 'the Act ') is at the instance of the complainant Mr. Pradip Kr. Abhani against the opposite party, M/s. Green Tech IT City ( Pvt. Ltd.) on the allegation of deficiency of services on the part of the opposite party in a consumer dispute of housing construction. 

2. The facts of the complaint case in short is that the complainant booked a residential flat along with a car parking space for his own use and occupation being residential Unit No. (03- C4) on fourth floor, in Block No. 3 in Smart Home Residency - I , in an under construction residential project of the opposite party at Green Tech City, mouza Bajetaraf , P. S. Rajarhat , North 24 Parganas, Kolkata- 700 035. At the time of booking of the said flat the complainant paid a sum of Rs.1,00,000/-  to the opposite party against a total consideration of Rs.26,70,000/- ( Rs. 24,70,000/- for flat and Rs.2,00,000/- for car parking space) plus service tax. 

3. The opposite party duly acknowledged the said payment of the complainant and confirmed the booking of the particular residential unit in favour of the complainant by their confirmation letter dated 05.06.2013. 

4. Further case of the complainant is that the opposite party sent an agreement for sale dated 05.07.2013 to the complainant with a request to sign and keep the same as final sale agreement. On going through the said agreement for sale the complainant found that in the said agreement in page No. 2, clause A, the opposite party has claimed itself as owner/ developer and that it was absolutely seized, possessed of and also was entitled to diverse the piece and parcel of  the land at mouza Bajetaraf, P.S. Rajarhat and devised a scheme to develop a township project under the name Green Tech City. In clause No. 'F' of the said agreement it was further mentioned that at or before entering into this agreement the purchaser has satisfied himself about the title of the owner/ developer and/ or owner's / developer's right to develop the project.  

5. Further case of the complainant is that in spite of verbal request to send copy of the necessary papers the opposite party failed and neglected to send such papers/ documents to enable the complainant to satisfy himself to that effect. The complainant also sent a letter dated 10.10.2013 to the opposite party and asked the opposite party to supply several documents. Despite the service of the same the opposite party did not care and respond to that letter.  Thereafter, the complainant sent another letter dated 19.12.2013 asking for some clarification.  Thereafter, in response to the opposite party's demand letter for payment of part consideration the complainant sent another letter dated 30.06.2016 referring of his earlier letters.  

6. Further case of the complainant is that on 12.07.2016 the opposite party sent an email assuring to resolve the issues of the complainant and asked for scanned copies of those letters.  The complainant requested the opposite party to clarify the basic points by his letter dated 18.07.2016, 11.08.2016 and 30.11.2016.

7. Further case of the complainant is that the opposite party thus has committed grave deficiency of service and serious unfair trade practice.  

8. Further case of the complainant is that the complainant paid a total sum of Rs.08,25,751/- and the opposite party duly issued five money receipts.  

9. Further case of the complainant is that the complainant remained in total darkness about the ownership and title of the opposite party and their development rights and sanctioned the building plan and the legality of the construction carried out by them.  

10. Further case of the complainant is that the opposite party informed the complainant that they would likely be in a position to hand over possession of the complainant's flat by the end of 2nd quarter of 2017, by their letter dated 29.12.2016 and after a few months by another letter dated 09.08.2017 the opposite party demanded a further sum of Rs.16,43,334/- from the complainant as per their own payment schedule.  

11. Further case of the complainant is that the complainant again sent reminders dated 09.06.2017 and 25.08.2017. Thereafter, the complainant got a notice dated 08.06.2018 from the opposite party wherein the opposite party has demanded an arbitrary amount of Rs.21,78,231/-. The notice dated 08.06.2018 is totally uncalled for and bad in law.  

12. Further case of the complainant is that the opposite party has admitted their guilt of deficiency of services and grave unfair trade practice for which the complainant has filed this complaint with the prayer for following reliefs :- 

“i) To satisfy the complainant in respect of the ownership and title of the opposite party / Company and their development rights and the Sanctioned Building Plan and the legality of the construction carried out by them and to handover khas peaceful possession of completed scheduled flat with car parking space and complete registration upon payment by the complainant of balance consideration money of Rs. 18,69,000/-  with service tax as applicable.

Alternatively, to refund Rs.825,751/- with 18% interest p.a. from the date of payment till the date of refund to the complainant.

ii) An order to the opposite party to pay compensation of Rs.5,00,000/- (Rupees Five Lakh only) for mental harassment and agony,

iii) An order to the opposite party to pay litigation cost of Rs.50,000/- (Rupees Fifty Thousand only).

iv) To pass such other order or orders as Your Lordships may deem fit and proper.”

13. Notice was duly served upon the opposite party and the opposite party entered appearance in this case and was contesting the case by filing written version denying the allegation as made in the petition of complaint.  The specific case of the opposite party is that the complainant has not signed the agreement for sale dated 05.07.2013 in absence of such non execution by the complainant, the allotment letter will prevail.  The allotment letter discloses about the manner of payment of consideration amount by the complainant.  The complainant has failed to make the payment as per the terms and conditions of the allotment letter.  Since the complainant has failed to make payment as per the terms of the allotment letter the allotment automatically stands cancelled as per the terms of the allotment.  Therefore, there cannot arise any question of hand over of khas peaceful possession of complete schedule flat with car parking space and to complete registration upon payment by the complainant of balance consideration money of Rs.18,69,000/-. 

14. Further case of the opposite party is that the opposite party was in breach of contract for which remedy lies before the Learned Civil Court.  

15. Further case of the opposite party is that the complainants are fully aware of the existence of the arbitration clause and Mr. A.K. Chowdhury, Advocate is the named sole arbitrator in the agreement.  So, the complaint case is not maintainable and is liable to be dismissed.  

16. Upon the pleadings of the parties the only point requires for determination is whether the complainant is entitled to the relief as prayed for.

Decisions with reasons :-

17. To prove the complaint case the complainant has filed evidence on affidavit in support of his case.  The opposite party filed questionnaires and complainant replied to the questionnaires filed by the opposite party.  On perusal of the petition of complaint and the evidence on record it transpires to us that the complainant booked a residential flat along with car parking space for his own use and occupation being residential Unit No. (O-3 C 4) on fourth floor in Block No. 3 in Smart Home Residency-I in an under construction residential project of the opposite party. The complainant paid a sum of Rs.1,00,000/- to the opposite party against a total consideration price of Rs.26,70,000/- (24,70,000/-  for flat -  Rs.2,00,000/- for car parking space) plus service tax. The opposite party duly acknowledged the said payments of the complainant and confirmed the booking of the particular residential unit in favour of the complainant by their confirmation letter dated 05.06.2013. It also appears to us that the opposite party sent an agreement for sale dated 05.07.2013 to the complainant with a request to sign and keep the same as final sale of agreement.  The complainant did not sign in the said agreement for sale and the complainants sent letters dated 10.10.2013, 19.12.2013 asking the opposite party to produce several documents but the opposite party failed and neglected to produce the said documents to the complainants.  It is also proved that in response to the opposite party's demand letter for payment of a part consideration the complainant again sent a letter dated 30.06.2016 ( Annexure 'E', page 35 of the complaint ). It is also proved that on 12.07.2016 the opposite party sent an email assuring to resolve the issues of the complainants and asked for scanned copies of those letters ( Annexure 'F' , page 38 of the complaint). Annexure 'G' , page 39 of the petition of complaint proves that the complainant immediately sent all the scanned copies of those letters through his email dated 05.07.2016. Annexure 'H', Annexure 'I'  and Annexure 'J' , pages 40, 43 and 45 respectively of the petition of complaint also prove that again and again the complainant requested the opposite party Company to clarify the said basic points by his letter dated 18.07.2016, 11.08.2016 and 30.11.2016. 

18. From the above discussion, it is clearly proved that the opposite party has committed grave deficiency of service and serious unfair trade practice and have caused enormous mental pain and agony to the complainant besides huge monetary loss. Annexure 'K' (pages 49 to 53) of the petition of complaint proves that the complainant paid a total sum of Rs.08,25,751/- and the opposite party duly issued five separate money receipts.  

19. Annexure 'L' ( page 55 of the petition of complaint) proves that the opposite party informed the complainant that the opposite party would likely be in a position to hand over the possession of the complainant's flat by the end of 2nd February, 2017, by their letter dated 29.12.2016. 

20. Annexure 'M' ( page 55 of the petition of complaint) proves that after a few months by another letter dated 09.08.2017 the opposite party demanded a sum of Rs.16,43,334/- from the complainant.  

21. Annexure 'N' ( page 56 and 58 of the petition of complaint) proves that the complainant again sent reminders dated 09.06.2017 and 25.08.2017. 

22. Annexure 'O' (page No. 61 and 62 of the petition of complaint) proves that the complainant got a notice dated 08.06.2018 from the opposite party wherein the opposite party demanded an amount of Rs.21,78,231/- and the opposite party threatened to cancel the complainant's booking of the said flat in case of failure to make payment of the said amount.  

23. From the above discussion it may be held that the evidence of PW 1 and Annexures A, B, C, D, E, F, G, H, I, J, K, L, M, N, O clearly prove that the opposite party never complied with the mandatory requirement despite receipt of the series of letters and emails from the complainant's end and the opposite party deliberately failed and neglected to clarify even a single issue as raised by the complainant which is tantamount to serious deficiency of service and grave unfair trade practice on the part of the opposite party. The opposite party filed written version.  In support of their written version the opposite party filed evidence on affidavit. Against the said evidence on affidavit the complainant filed questionnaire but the opposite party remained unanswered and did not reply to the questionnaire filed by the complainant.  In the circumstances it may be concluded that the evidence of the opposite party is invalid and cannot be accepted at all.  The opposite party in his written version has raised the issue of arbitration clause in the agreement in this regard.  On going through the record it appears that the said agreement has not been signed by the complainant and the complainant has every right to take up his grievances as a consumer with this Commission despite the existence of arbitration clause in the agreement.  

24. Under these facts and circumstances, we are of the view that the unsigned agreement does not have any legal force at all and the complainant has every right to file the complaint case under the Consumer Protection Act.  In the written version, the opposite party has stated that due to failure to make payment by the complainant the opposite party has cancelled the letter of allotment.  We fail to accept the said case of the opposite party as because we find that the complainant asked for certain basic information that were essential prerequisite for going ahead and which deliberately has not been provided to the complainant till date.  As such, it is purely the fault on the part of the opposite party for which the complainant did not sign on the said agreement and make any further payment.  

25. Under these facts and circumstances and on consideration of the materials available on record, we are of the view that the opposite party is guilty of serious deficiency of service and grave unfair trade practice for which the complainant is in law and in equity fully entitled to get reliefs as prayed for. 

26. In the result, the complainant is entitled to get refund of money paid by him along with appropriate compensation in the form of interest for financial loss and for mental agony and harassment suffered by him on account of the failure of the opposite party to deliver possession of the flat booked by him. 

27. So, I hold that there is deficiency in service on the part of the opposite party in the matter of construction of the flat and delivery of possession as per the terms and conditions of the letter of allotment. 

28. In the result, the complaint case succeeds. Hence it is ordered that the complaint case No. CC/528/2018 be and the same is allowed on contest against the opposite party.  The opposite party is hereby directed to refund the amount of Rs.08,25,751/- only to the complainant along with compensation in the form of simple interest @ 9% per annum with effect from the date of each payment till the date on which the entire amount along with compensation is paid, in the form of compensation. 

29. The opposite party shall pay Rs.10,000/- only as litigation cost.  The payment in terms of this order shall be made within three months from this date.  If the opposite party fails to comply with the direction made above within the period mentioned above, then the complainant is at liberty to get the order implemented with due course of law. 

30. Let a plain copy of judgment be given to the complainant free of cost and a copy also be served upon the opposite party by registered post / speed post with A/D as early as possible.