JUDGEMENT

          Complainant by filing this complaint has prayed for directing the op to sell flat of the agreed terms and conditions of the booking price and to direct the op to supply all materials documents before entering into the agreement and further directed for compensation etc.  Complainant’s case is that in a housing fair organized at the Netaji Indoor Stadium in Kolkata sometime in or around the month of Sept. 2010 complainant found that there is a stall of Silver Estate at Rajarhat for marketing their upcoming projects and after talking with the representatives of ops, complainant became interested to book a flat along with one car parking space in the housing project, namely Silver Estate at Kali Park, Rajarhat, Kolkata-70136 and it was reported that at the time of filing application allotment of a sum of Rs.1,02,575/- shall be paid to the op no.1 by account payee cheque and accordingly complainant paid it but no terms and conditions of the same was not supplied and it is further stated that if the application is cancelled, no cancellation charges will be applicable and entire money shall be refunded and since the acceptance of the said application of the complainant with deposited money ops were sitting tight over the matter and were not supplying either the General Terms and Conditions or the copy of the draft Agreement for Sale and other documents to be supplied by them.  Complainant requested the ops through e-mail on repeated occasions to supply the said documents and enquired with regard to the availability of the said documents.

          Subsequently on 13.02.2011 complainant received a letter of the op dated 19.01.2011 by which that he has been allotted a flat in the proposed building being Flat No. 3L/B2 on 3^rd floor in Tower 3 having super built-up area 1660 sq. ft. with one basement car parking space and complainant was informed that in acceptance of the said allotment an agreement for sale in respect of the said flat has to be signed by him on 28.02.2011 and complainant was also informed that in the event of his non-compliance, his application will be treated as cancelled and a sum of Rs.50,000/- out of the application money paid by him shall stand forfeited as service charges.

          Along with the said letter complainant also received an invoice/demand dated 19.01.2011, whereby the complainant was requested to pay a sum of Rs.6,33,620/- along with Service Tax and Education Cess of Rs.19,213/- aggregating to Rs.6,52,833/- within 30 days from the said date, default in payment of which within the time as specified will attract delay charges in terms of the General Terms and Conditions and conditions as referred to the said invoice, supplied to the complainant.  Further complainant requested the op to supply brochure giving information on the approved site plan and floor plan, status of the bank approval of the project and copy of the title deeds of the land on which the building was proposed to be constructed, copy of the General Terms and Conditions along with the copy of the Agreement for Sale.  Op was also requested to intimate a fresh date for making payment of allotment money and also for signing the Agreement of Sale giving sufficient time after the above information is made available to the complainant.

          Fact remains that after taking application form and also said amount, no document was supplied by the op before entering into final Agreement to Sale.  So, the demand notice was sent through their Ld. Advocate when op sent a letter on 28.01.2011 requesting the complainant to pay the dues and sent the Deed of Agreement, against that complainant sent a letter informing that it would be required to file or to supply all documents pertaining to the said project plan and the brochure but that was not done.  But such queries were never replied by the op because before sending letter with regard to the sale of flat as per law of contract it is the sellers responsibility to supply of all documents to the intended purchaser to be satisfied about the title and other benefits in support of flat and fact remains op did not supply it and ultimately they have created pressure upon the complainant for executing the Agreement for sale and in the above circumstances complainant has prayed for directing the op to supply all the documents related to the said project and flat and brochure and after being satisfied complainant is found satisfied about the duty of the ops in that case complainant shall have to proceed otherwise op may be directed to refund the said amount of Rs.1,02,575/- and for such sort of harassment op must have to pay compensation and for which for proper redressal the present complaint is filed.

          On the other hand op no.1 by filing written statement alleged that the entire complaint is false and vexatious and fact remains that complainant along with his wife made an application on 20.11.2010 for a provisional allotment of a flat measuring an area of 1660 sq. ft. super built up area along with one car parking space in the basement of the upcoming housing project of the op no.1 namely Silver Oak Estate at Rajarhat at a booking price of Rs.2,630/- per sq. ft. as per application form and complainant along with his wife paid the application money of Rs.1,02,575/- along with application and it is admitted by the op that it is still in the pre-launch stage of the General Terms and Conditions with regard to the booking/sale of the flat and the draft Agreement for Sale were not available on the date of filing the application by the complainant.

          But op has said that the date for the execution o the agreement for sale was fixed from 28.02.2011 to 31.03.2011 and the date for the payment of allotment money has also been extended up to 15.03.2011.  But complainant required copies of brochure, status of bank approval of the project, title deeds, General Terms and Conditions and draft agreement for sale and they had also sought for further time to pay the allotment money.  But after waiting for almost the entire period to pass, by a letter on 06.04.2011 complainant again sought for the same documents once again and failed or neglected to pay the said allotment money even by 15.03.2011 for which no payment of the same was made and thus the provisional allotment made as aforesaid thus stood cancelled.  So there is no relationship of consumer and service provider as claimed by the op.  Therefore, the present complaint is not maintainable and even after cancellation of the said allotment on 10.05.2011 complainant through his Advocate issued a letter to the ops to supply the General Terms and Conditions and the other documents.

          Though on 12.08.2011 op no.1 through their Advocates replied against the letter on 10.05.2011 as a good gesture again requested the complainant to pay the dues as per the schedule of payment already stated in the letter dated 19.01.2011 and to sign the agreement for sale within 3 days from the date o receipt of the letter and it was specifically informed that all the documents shall be made available at the time of signing the agreement between the parties and it was further informed that default in payment of the above dues shall subject the said provisional letter of allotment to cancellation and in such even the complainant might take the refund and complainant may receive the amount from the op no.1 but no other relief can be granted in favour of the complainant and so op has prayed for dismissal of this case denying all allegations.  But fact remains it is the general defence of the op that the cancellation of the allotment cannot be restored by this Forum.  So, the present complaint is not maintainable and prayed for dismissal of this case.

                                                        Decision with reasons

          After overall evaluation of the complaint and the written version including the advanced argument as by the Ld. Lawyers of both the parties, it is undisputed fact that the op received a sum of Rs.1,02,575/- along with application form for allotment and thereafter allotment was made in respect of one flat but fact remains no construction has been started in respect of the said project by the op and it is undisputed fact that complainant after receive of the allotment letter date 19.01.2011 and on 13.02.2011 came to learn that he has been allotted a flat in the proposed building being Flat No. 3L/B2 on 3^rd floor in Tower 3 having super built-up area 1660 sq. ft. with one basement car parking space and he was also informed that in acceptance of the said allotment agreement for sale in respect of the said flat by 28.02.2011 would be executed and it was further informed that any event of his non-compliance will be treated as cancelled and a sum of 50% of earnest money shall stand forfeited and further complainant received invoice dated 19.01.2011 whereby complainant was requested to pay a sum of Rs.6,52,833/- and in default of payment of which within the specified time as per General Terms and Conditions the said application for allotment shall be cancelled.

          Truth is that complainant before signing of the agreement for sale has his right to inspect and to satisfy himself about the title and other matter in respect of said flat and construction.  So, it is undisputed fact that complainant again and again requested the ops to supply those documents before signing the Agreement for Sale and for further payment to the op and op has admitted that he did not supply.  But it is admitted by the op that he informed that the documents shall be made available before signing the agreement for sale in between the parties then it is clear that op as a seller did not supply all the necessary documents as required by the intending purchasers to verify about the title and other matters in respect of the entire flat and the construction which is completely illegal in nature and fact remains the intended purchasers must be satisfied at first about the title and other related matter in respect of proposed project which has not yet been started by the ops.

          But from the op’s own version as admitted in page-5, para- e it is clear that op did not supply.  Then invariably how the intended purchaser shall have to pay Rs.6,50,000/- when the construction has yet not been started by the op.  So, it is clear that there was negligence and deficiency on the part of the op as seller and fact remains that the intended purchasers has his right or her right to get all documents, copy of documents from the seller before payment of balance amount and before signing agreement to sale and that is buyer’s liability and responsibility. So, there was no fault on the part of the complainant.  But fault was on the part of the op who tried to force the complainant to sign in the agreement for sale by receiving further money before his satisfaction about the future of the said project and title of the op and other matters.  No brochure was supplied.  Then it is clear that op adopted unfair trade practice and created pressure upon the intended purchaser to sign agreement to sale to pay further money.  But complainant did not swallow such forceful act of the op and asked for supply of documents.  But even then op did not supply but cancelled the said allotment.

          Then no doubt it is arbitrary act on the part of the op.  Further op has admitted in his written version that he is willing to return the entire refundable amount.  But when the op has not complied the entire principal of law as seller, then there is no scope on the part of the op to deduct any amount as deposited by the complainant along with the application form and there is no such terms and conditions for deducting any amount from the application form when his allotment as made by the op has been cancelled arbitrarily.

          Fact remains at this stage there is no existence of any project.  But it is one kind of unfair trade practice that is proved from the written version of the op and for which complainant is entitled to get back the entire deposited i.e. Rs.1,02,575/- from the op along with compensation for harassing the complainant by the op in such a manner and also for adopting unfair trade practice for creating pressure, force upon the intended purchaser without satisfying the intended purchasers about his title, the future of the project etc and no document is as yet submitted by the op before this Forum also and that has not been supplied.  Then it is clear that it is no doubt unfair trade practice on the part of the op and for which complainant is entitled to get compensation from the op.

          In the present case Ld. Lawyer for the op submitted that the valuation of the flat is Rs.43,65,800/- which is beyond the pecuniary jurisdiction of the Ld. Forum.

          But truth is that as yet no agreement to sale has been executed in between the parties.  Fact remains the allotment has been cancelled and in the present case op has admitted that he is willing to refund the amount as deposited by the complainant.  When the entire allotment money is caneclled and fact remains it is cancelled arbitrarily in that case the valuation of the case is in respect of Rs.1,25,000/- and compensation and truth is that complainant has prayed for refund of that amount or supply of the documents before execution of the agreement to sale.  But when in this case there is no scope for the complainant to get any relief in respect of deposited amount i.e. Rs.1,02,575/- that is the valuation of this case including the compensation as prayed for.

          If we consider that and compensation amount, it is within the jurisdiction of this Forum which does not exceed of Rs.20,00,000/-.  So we are confirmed that the ruling as submitted by the Ld. Lawyer of the op in this regard by filing a judgement of State Commission (Rajendra Kr. Goyal & Ors.- Vs – South City Project Kolkata Ltd.) is not at all applicable.  But this Forum has jurisdiction to decide the same.  Another point was raised by the op that flat was booked in the name of his wife also who has not filed any present complaint.  But considering this argument it is no doubt an argument only for the purpose of avoiding payment of application money.  it is settled principal of law if any application is purchased in the name of two persons one of the applicant may file complaint and when the relief shall be granted the amount shall be paid to the applicant as per application.  Further in this case it is proved that present op without construction of any complex/any building, without satisfying about his title and future project without supplying any brochure to the intended purchaser collected money and in future there is chance of the intended purchasers to lose their money and ops shall be vanished from the market like SARADA and it is one kind of collecting money from the public and to waste it because it is the future of any housing construction project but intended purchasers want all sorts of documents which shall be supplied including queries of Pollution Department, Electricity Department, Corporation and other matters including sanctioned plan must be submitted by the ops before asking any intended purchaser to sign any agreement to sale.  But in this case fact remains op has failed to produce any document, not even in this Forum.  Truth is that no complex has been constructed as yet and it is a barren land. 

          So the entire business practice as adopted by the op tantamounts to unfair trade practice and by adopting unfair trade practice the op collected huge amount from different intended purchasers as application form and when op has failed to supply those documents to the intended purchasers, op has adopted another unfair trade practice to create pressure upon the intended purchasers to deposit further amount and to sign Deed of Agreement to sale and no doubt it is deficiency and negligence on the part of the op and for which complainant’s entire allegation is proved against the op and so complainant is entitled to get a decree alternatively as prayed for and op is bound to comply the decree by satisfying the decree as it is being passed against the op.

          Hence, it is    

                                                             ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the op.

          Op is directed to refund the entire amount of Rs.1,02,575/- (deposit amount along with application money) and also for harassing the complainant and for collecting such amount without any future of the project,  op shall have to pay compensation to the extent of Rs.10,000/- to the complainant and same shall be paid to the complainant within one month from the date of this order before this Forum to the complainant or deposit the entire decretal amount to this Forum if any reasons op fails to comply the order in that case for violation and disobeyance of the Forum’s order, op shall have to pay penal damages @ Rs.500/- per day till full satisfaction of the decree.

          For adopting unfair trade practice and also for deceiving the complainant in such a manner op shall have to pay a sum of Rs.25,000/- as punitive damages and it is imposed for the purpose of checking op’s further attempt to deceive the intended purchasers in such a manner by adopting such sort of unfair trade practice and said amount shall also be deposited to this Forum within one month from this order failing which for non-compliance and disobeyance of the Forum’s order, penal proceeding u/s 27 of C.P. Act shall be started for which op shall be liable for further find and even if he shall be sent to jail.