DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _23_ OF ___2016_
DATE OF FILING : 14.3.2016 DATE OF PASSING JUDGEMENT:05.07.2017
Present : President : Udayan Mukhopadhyay
Member(s) : Jhunu Prasad & Subrata Sarker
COMPLAINANT :Dr. Swapan Kumar Sardar, son of late Panchanan Sardar of Village and P.O Palpur, P.S Gosaba, Dist. South 24-Parganas.
-VERSUS -
O.P/O.Ps : M/s Ramani Arcad, represented by its Managing Partners Sri Subhas Chowdhury son of Sri Sudhir Ranjan Chowdhury of 1976, Garia Main Road, Tentultala, P.S Sonarpur, Kolkata – 84.
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J U D G E M E N T
Jhunu Prasad, Lady Member
The door of this Forum has been knocked by the complainant for redressal arising out of the Consumer dispute as per the Consumer Protection Act 1986.
In Iconic, the fact stated in the complaint, is that on 30.11.2015 the complainant booked one residential flat No. C/1, south west side with one car parking space in the ground floor at the project “Ramani Endear”at 2253, Garia place, Kolkata-84, for total consideration amount of Rs. 63,00,000/-.
Thereafter on 01.12.2015 the O.P handed over a copy of the “Agreement for sale” of the aforesaid flat for correction, negotiation and also execution of the documents, but after going through the contents of the said “Agreement for sale” the complainant found some clauses that need to be changed by the O.P that’s why on 10.12.2015 the complainant sent e-mail to the O.P for it’s correction and modification of the said “Agreement for sale”. But the OP did not response.
Thereafter the complainant sent several letters to the O.P. On 07.01.2016 the O.P asked the petitioner to give his bank A/C No. so that the O.P will transfer the booking amount of Rs. 3,15,000/- to the complainant’s bank A/C and the complainant also does the same. Inspite of several letters sent to the O.P for refund of the booking amount of Rs.3,15,000/- the O.P informed the complainant by letter dated 28.01.2016 that the booking has been cancelled as well as they will refund back the amount of Rs.1,57,500/- to the complainant’s bank A/C.
Hence, the complainant filed this instant complaint for getting relief as prayed for.
Issued notice upon the O.P.
Resisting the complaint the O.P appeared by way of filing vokalatnama and filed written version denying the contentions and all material allegations made by the complainant in the petition of complaint and stating, inter alia, that the complainant has no cause of action to file the instant case and the case is not maintainable.
The case, as a whole, stated by the O.P., in gist is that the complainant booked one flat with car parking space on 30.11.2015 and the said booking receipt has been duly signed by both parties and the said booking receipt contained annexure as to the payment schedule. As per payment schedule “Agreement for sale” shall be executed by the complainant within 10 days from the date of the booking, otherwise the developer have the right to cancel the booking without showing any cause and the booking money will be refunded within two months after deduction of 2.5% on total consideration value. But after sending the copy of “Agreement for sale” dater 01.12.2015 and in spite of getting sufficient time the complainant did not send to the O.P the corrected and modified” Agreement for sale”. As a result the said “Agreement for sale” could not be executed within 10 days i.e. on 10.12.2015. Accordingly as per payment schedule the O.P exercised the right to refund the booking money of Rs.1,57,500/-. But the complainant demanded by letter through e-mail full amount of booking money of Rs. 3,15,000/- and also informed the O.P not to purchase the said flat.
Thereafter within two months from the date of booking the O.P informed the complainant by letter dated 28.01.2016 that sum of Rs.1,57,500/- has been duly deposited in the bank account of the complainant on 28.01.2016. The complainant booked the flat on 30.11.2015 accepting the terms as stipulated in the booking receipt and on very next date i.e. on 01.12.2015 the OP. sent the draft of “Agreement for sale” to the complainant, but the complainant failed and neglected to execute the said “Agreement for sale”.
So the O.P did not commit any deficiency in service on its part. Therefore, the O.P prayed to reject the complaint petition with cost.
The following points for decision have been framed:-
i)Whether the O.P committed any deficiency in service?
ii)What relief the complainant is entitled to get?
On overall evaluation of the argument made before us by the Ld. Advocate for the complainant and Ld. Advocate for the O.P and critical appreciation the material evidence on record, it is admitted that one flat has been booked by the complainant on payment of Rs.3,15,000/-.
Manifestly, it is found from the photocopies of the documents filed by the complainant specifically mentioned in “Booking receipt” that “Requisite Agreement for sale” shall be executed by Dr. Swapan kumar Sardar within 10 days from the date of booking, otherwise the developer have right to cancel the booking without showing any cause and the booking money will be refunded within two months after deduction of 2.5% on total consideration value.
The record reveals that the said booking receipt was duly signed by the complainant and the O.P.
Fact remains that on 10.01.2015 the complainant sent the said “Agreement for sale” to the O.P to omit or negotiate of the clause of the said “Agreement for sale”. Accordingly after modification of the “Agreement for sale”, the complainant re-submitted the same through e – mail on 10.12.2015. But in spite of receiptd of modified “Agreement for sale” for approval, the O.P cancelled the booking due to delay in submission of “Agreement for sale” on 10.12.2015 i.e. on 10th day whereas resubmission of agreement for settlement by the complainant occurred within the stipulated period and therefore, the O.P could have examined the modified “Agreement for sale” and settled the issue with the complainant, but the O.P arbitrarily cancelled the booking without any cause that too, within the stipulated period as per booking terms which constitutes gross deficiency on its part within the per view of section 2(1)(g) of C.P. Act 1986.
So, we are convinced to hold that entire conduct of the O.P is illegal unwarranted and arbitrary in nature and the complainant has been able to prove the subject of the allegation without any hesitation, including the fact of negligence by the O.P, what has caused the harassment, mental pain and agony to the complainant, on his part and for which the complainant is invariably entitled to get relief as prayed for .
Thus, the Forum has no hesitation to hold that, the O.P is still liable to refund of Rs.3,15,000/-to the complainant.
In short, the complainant deserves success.
In the result, we proceed to pass
ORDER
That the complaint be and the same is allowed on contest against the O.P with cost of Rs.2,000/-.
That the O.P is directed to refund of Rs. 3,15,000/- to the complainant within one month from the date of this order in default the said amount will carry interest @9% p.a. from the date of default period to till its realization.
That the O.P is also directed to pay of Rs.2,000/- as litigation cost to the complainant within one month from the date of this order.
In the event of non compliance of any portion of the order by any of the O.P. within a period of one month from the date of this order, the defaulting O.P. shall have to pay a sum of Rs. 50/- per day, till its realization, which amount shall be deposited by that O.P in the State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member Member President
Dictated and corrected by me
Member
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
ORDER
That the complaint be and the same is allowed on contest against the O.P with cost of Rs.2,000/-.
That the O.P is directed to refund of Rs. 3,15,000/- to the complainant within one month from the date of this order in default the said amount will carry interest @9% p.a. from the date of default period to till its realization.
That the O.P is also directed to pay of Rs.2,000/- as litigation cost to the complainant within one month from the date of this order.
In the event of non compliance of any portion of the order by any of the O.P. within a period of one month from the date of this order, the defaulting O.P. shall have to pay a sum of Rs. 50/- per day, till its realization, which amount shall be deposited by that O.P in the State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member Member President
