West Bengal

Kolkata Unit-IV

CC/51/2022

VIVEK CHAUDHARY - Complainant(s)

Versus

M/S. KOJAGORI DEVELOPERS & OTHERS - Opp.Party(s)

SOUMEN SAHOO

28 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION, KOLKATA UNIT-IV

Sealdah Court Room No. 302 and 309

1,Beliaghata Road, Kolkata-14

 

 

Complaint Case No. CC/51/2022

( Date of Filing : 11 Apr 2022 )

 

1. VIVEK CHAUDHARY

S/O MR. DEVI PRASAD CHAUDHARY, RESIDING AT VILLAGE & P.O. & P.S.-RANISWAR, PATHRA PANCHAYET, DISTRICT-DUMKA, JHARKHAND, PIN-814148, PRESENTLY RESIDING AT DEEP GANGA COMPLEX,BLOCK-C,5TH FLOOR,ROOM NO.-5C,BASUDEVPUR,HALDIA,

PURBA MEDINIPUR

WEST BENGAL

...........Complainant(s)

  

Versus

 

1. M/S. KOJAGORI DEVELOPERS & OTHERS

P-88,SECTOR-B, UNDER P.S.-PRAGATI MAIDAN ,METROPOLITAN CO-OPERATIVE HOUSING SOCIETY LTD. KOLKATA-700105

WEST BENGAL

2. MR. JOYDEEP NAG, PARTNER OF M/S. KOJAGORI DEVELOPERS

P-88,SECTOR-B, UNDER P.S.-PRAGATI MAIDAN ,METROPOLITAN CO-OPERATIVE HOUSING SOCIETY LTD. KOLKATA-700105

WEST BENGAL

3. SUMITA GHOSH, PARTNER OF M/S. KOJAGORI DEVELOPERS

P-88,SECTOR-B, UNDER P.S.-PRAGATI MAIDAN ,METROPOLITAN CO-OPERATIVE HOUSING SOCIETY LTD. KOLKATA-700105

WEST BENGAL

............Opp.Party(s)

 

BEFORE:

 

 

HON'BLE MR. SUDIP NIYOGI                                                   PRESIDENT

 

HON'BLE MRS. MANJUSRI SARKAR CHOWDHURY         MEMBER

 

HON'BLE MR. AYAN SINHA                                                      MEMBER

PRESENT:

Dated : 28 Jun 2023

Judgement

 

 HON’BLE SUDIP NIYOGI           PRESIDENT

FACTS

            The case of the complaint in short is that: -

            Complainant on 21.09.2020 had booked one self-contained flat being No.401 on the fourth floor (Southern Side) measuring about 1400 sq. ft. super built-up area + (5%) more or less at the project on premises No. A/P-132/B, Canal South Road, Metropolitan Co-operative Housing Society Ltd., Kolkata – 700105 @ Rs.5,300/- per sq. ft. following the terms and conditions as mentioned in the Application Form. Complainant paid Rs.8,00,000/- as advance and Rs.40,000/- as GST following the instructions of the Opposite Parties. It was also required following the Application Form that the Complainant was to make an agreement within 15 days, otherwise the booking would be cancelled. Though the Complainant several times visited the office of the Opposite Parties and requested to execute an agreement for sale but for some unknown reasons, the Opposite Parties delayed the execution of such agreement showing lame excuses.

Thereafter, Complainant sent one email dated 27.12.2021 for cancellation of the said booking and refund of the money paid in advance, but Opposite Parties did not reply to that email, nor did they refund any money to him. Thereafter, he sent one notice through his Advocate on 10.01.2022 demanding the refund of Rs.8,40,000/- with 18% interest. Opposite Parties in their reply agreed to refund Rs.6,40,000/- after deducting 20% of the booking amount as well as the GST amount. It is alleged that the Opposite Parties did not produce any document relating to the submission of GST amount to the concerned authority and Complainant also wanted to know the reasons for deduction of the 20% amount of advance.

Complainant alleged deficiency in service against the Opposite Parties and contended that he suffered financial losses, harassment and mental pain and agony. So, he filed the instant complaint praying for refund of Rs.8,40,000/- with 18% interest from the date of payment, Rs.2,00,000/- for compensation and Rs.1,00,000/- towards cost of litigation.

Opposite Parties in their written version denied the allegations of the Complainant. They claimed that Complainant did not show any initiative to execute the agreement for sale, despite several requests made to him. Complainant did not show any specific reasons for cancellation of his booking of the flat. So, they prayed for dismissal of the instant case.

POINT FOR CONSIDERATION

Whether the Complainant is entitled to the relief(s) as prayed for?

FINDINGS

            Both parties filed their Evidence in chief on Affidavit, exchanged questionnaires and replies thereto and also filed Brief Notes of Argument.

            Complainant produced the copy of one application form to purchase the flat from the Opposite Parties (Developers) and a few correspondences between the parties. From the documents as also from the evidence it is found admitted that the Complainant applied for purchasing a flat from the Opposite Parties measuring about 1400 sq. ft. super built-up area more or less @Rs.5300/-  sq. ft. and one car parking space at Rs.5,00,000/- on the ground floor. As per the terms and conditions of the said application form, the purchaser would make agreement within 15 days through the Opposite Parties’ lawyer, otherwise the said booking would be cancelled. Another relevant point noted in the application form is that after booking if the purchaser intends to cancel the agreement, 20% of the total paid amount would be deducted as cancellation charge.           

          According to the Complainant, he paid Rs.8,00,000/- as advance and Rs.40,000/- as GST, following the instruction of the Opposite Parties and this fact was not denied by the Opposite Parties who in their letter dated 18.01.2022 (Annexure – F) addressed to Mr. Soumen Sahoo, Advocate of the Complainant, admitted the same. Apart from this, they also claimed in the said letter that they are agreeable to refund an amount of Rs.6,40,000/- after deduction of 20% as cancellation charge as per Clause(a) of the application form to purchase the flat.

            Now, what we find Complainant claimed that after booking the said flat by submitting the application form, he went to the office of the Opposite Parties several times for execution of the agreement for sale. But, it is the Opposite Parties who avoided execution of the same on repeated occasions and ultimately he was compelled to cancel the said agreement and demanded for refund of the amount paid by him. On the other hand, Opposite Parties claimed that it is the Complainant who did not execute the agreement for sale despite repeated demands. But, the Opposite Parties could not produce a single scrap of paper showing that they had asked the Complainant to execute the deed of agreement. From the materials on record it is found that the Complainant was compelled to cancel the agreement as he could not proceed to make the agreement for sale in his favour with the Opposite Parties, despite his best efforts to do so.

It is found that Opposite Parties agreed to refund the amount of advance after deduction of the 20% of the total amount paid by the Complainant and they further claimed GST amount of Rs.40,000/- was deposited with the concerned Authority.

Here it is found that barring only booking of the flat in question, no further process in completing the deal was made for any reason whatsoever. The formal agreement for sale which was required to be made as claimed by the parties was also not made although complainant in the meantime made an advance of Rs.8,40,000/- including Rs.40,000/- for GST towards consideration. No cogent document is there that opposite parties deposited the said amount of Rs.40,000/- as GST for the flat sought to be purchased by the complainant with the concerned authority.

In such a situation also, when no further process towards completion of the deal having been taken place after the initial booking there is absolutely bereft of any justification of deduction of 20% amount paid by the complainant as advance.

Thus, ongoing through the entire materials on record we find that the Complainant is entitled to get back the amount paid by him to the Opposite Parties. So, he is entitled to refund of Rs.8,40,000/- from the Opposite Parties with interest @9% p.a. thereon from the date of 10/01/2022 when the complainant demanded refund of advance made by him. This apart, Complainant is also entitled to get Rs.5,000/- towards cost of litigation.

Accordingly, it is

ORDERED

That the instant case be and the same is allowed on contest.

Opposite parties are directed to pay Rs.8,40,000/- (Rupees Eight Lakh Forty Thousand Only) to the Complainant along with interest @9% p.a. since 10/01/2022 until payment in full.

Opposite Parties are also to pay Rs.5,000/- (Rupees Five Thousand Only) towards cost of litigation to the Complainant.

Opposite Parties are directed to comply with this order by making the aforesaid payment to the Complainant within 60 days from the date of this order, failing which Complainant shall be at liberty to proceed in accordance with law.

Dictated and corrected by me

 President

 

[HON'BLE MR. SUDIP NIYOGI]

PRESIDENT

 

[HON'BLE MRS. MANJUSRI SARKAR CHOWDHURY]

MEMBER

 

[HON'BLE MR. AYAN SINHA]

MEMBER

 

 

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