In epitome complainants’ case is that they entered into an agreement on 14.10.2017 with the O.P. for purchasing a self contained residential flat details of which has been mentioned in the schedule ‘B’ of the petition of complaint. The total consideration has been fixed to the tune of Rs. 18,74,400/- only which includes Rs. 16,74,400/-only for consideration amount of that flat comprised in designated unit and Rs.2,00,000/- only for amenities charges.
That complainants paid to O.P. as earnest or advance amount being total Rs.5,24,832/-only by two cheques bearing no.330435 dated 24.07.2017 drawn on UBI and another cheque bearing no.794652 dated 18.09.2017 drawn on SBI. Complainants since execution on agreement. Thereafter on several occasions complainants enquired about the progress of the project work and the O.P. replied on every occasion that project would be started shortly and finally almost after 2 years complainants were informed that subject project had been cancelled due to some land related issues and complainants were requested to visit at the office of O.P. for another project in other location.
That on 09.09.2019 complainants visited the O.P’s office and stated that they are not at all interested in alternative project and submitted an application on 09.09.2019 to cancel the said agreement and to get back the refund of the advance amount.
That on 18.12.2019 upon call from O.P. complainants visited the office of the O.P. and upon their requisition complainants submitted a declaration according to their printed format and agreed to get refund of Rs.5, 24,832/-only in their bank account through NEFT/RTGS within 15 days or maximum in a month.
That after elapse of 15 days no amount was credited, even after elapse of one month no amount was credited in the bank account of the complainants.
That complainants authorized their relative Mr. Subhendu Sarkar to act on their behalf for getting back of the refund amount.
Finding no other alternative complainant no.1, Sri Saikat Bag through authorized person, Sri Subhendu Sarkar issued a letter dated 23.09.2020 to the O.P. for refund of Rs.5, 24,832/-only. Thereafter complainants received a mail dated 24.09.2020 from the end of O.P. which reveals that due to lockdown they are in a haphazard way and running office with limited staff and for facing a situation of financial crunch and therefore, refund was not possible and refund process would be started once the lockdown is lifted. Complainants further state that again on 01.10.2020 and on 19.10.2020 two letters were issued on their behalf for refund of said amount of Rs.5, 24,832/-only but to no effect.
That thereafter finding no other alternative complainants issued a legal notice through their concerned Advocate on 04.01.2021 which the O.P. and its representative received on 13.01.2021 and 20.01.2021 respectively but O.P. did not pay any heed to that legal notice.
That astonishingly O.P. through e-mail dated 24.11.2020 informed again complainants that still he was not in a position to make refund of the money and O.P. after receiving legal notice was reluctant to refund the said amount of Rs.5,24,832/-only to complainants nor contacted with the complainants till the date of filing of this case.
That O.P. again sent a letter dated 22.12.2020 to Mr. Subhendu Sarkar for refund of money stating some legal ground i.e. seeking time due to financial crunch owing to Covid outbreak. Complainants states that O.P. has committed gross negligence of deficiency of service in violating of his promise and O.P. cannot evade from his obligation and responsibilities in refunding the said amount of Rs. 5, 24,832/-only along with compensation and costs as the complainants have sustained hectic pecuniary loss and suffered much from mental agony and uncertainty. Hence complainants instituted this case praying for following reliefs:-
- Direction be given upon the OP to pay Rs. 5, 24,832/-only to the complainants as refundable amount received from the complainants for proposed selling the flat in question along with GST for Rs.56,232/-only.
- Direction be given upon the OP to pay to the complainants Rs.1, 13,364/-only toward interest @18% on the amount received calculated on and from 18.12.2019.
- Direction be given upon the OP to pay to the complainants Rs.5, 00,000/-only towards compensation.
- Direction be given upon the OP to pay to the complainants Rs.50, 000/-only for legal proceedings.
- Other relief/reliefs if any, the complainants are entitled to.
It may be noted that from the cause title of the petition of complaint it appears that O.P. is a company and one Mr. Supriya Patra is representing O.P. as Constituted Attorney of O.P. but from W/V it appears that W/V has been filed on behalf of O.P. no.1 and O.P. no.2 and from paragraph no.6 of W/V it appears that O.P. no.1 i.e. O.P. is a reputed developer and O.P. is represented by its authorized representative. Though in W/V it is mentioned that W/V is filed on behalf of O.P. no.1 and O.P. no.2, but in all fairness said W/V be treated as W/V by O.P. only as there is no existence of O.P. no.2 in this case.
The O.P. has contested the case by filing W/V denying all material allegations raised by the complainants and contended inter alia that complaint is not maintainable in its present form or in law.
That complainants have no cause of action to file the instant complaint.
That complaint petition need to be rejected due to lack of jurisdiction as because complainants have not followed the agreement in question and in point no.14 of agreement it is specifically mentioned that if any dispute arises between developers and purchasers the said dispute shall be referred to arbitration and the sole arbitrator shall have the power to pass and give both interim order and award in regard to adjudication of the dispute and differences between the parties.
It is also states that O.P. no.1 is the private limited company and O.P. no.2 is not the director of the company.
It may be noted that in said W/V O.P. has also introduced someone as O.P. no.3 as per paragraph 5 of said W/V, but from the cause title of petition of complaint there is no existence/whisper of any O.P. no.3.
O.P. also states that complainant is a customer of the O.P. and as the complainants entered into an agreement for sale in respect of a flat in the concerned project of O.P. in October, 2017 and O.P. should deliver the said flat within 40 months from the date of agreement for sale which was mentioned by the complainants in paragraph no.5 of the petition of complaint. So, time period is not complete till date and filing the instant case by the complainants is against the law. O.P. has stated that the construction work of the project concerned is still going on and also due to pandemic situation the development work was not going on smoothly and that is why delivery of flat had not been done within time. O.P. has also stated that there is no deficiency in service on the part of O.P.
Finally, OP has prayed for dismissal of the petition of complaint.
O.P. has also prayed for direction may be given to the complainants to compensate the O.P.s. for harassment and mental agony. O.P. has also prayed for costs and has prayed for other order/further orders as this Commission may deem fit and proper.
POINS FOR DECISION
- Whether the complainants are the consumers to the O.P.?
- Whether this Commission (formally Forum) has Territorial/Pecuniary Jurisdiction to entertain and try this Case?
- Whether there is any deficiency in service and there is any unfair trade practice on the part of O.P.?
- Are the complainants entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
Point No.1
On close scrutiny of the materials on record it reveals that complainants are the consumers u/s 2(7) of the C.P. Act, 2019 to the O.P.
Point No.2
Complainant no.1 and complainant no.2 appear to be the residents of Konnagar, Post and P.S. Ghatal Pin Code 721212. Whereas O.P. is having its office at premises 594/1, Dakshindari Road, ‘Bima Abasan’ Flat no.E2/1 1st floor, Post Office- Sribhumi, P.S.-Laketown District-North 24pgs and it shows also further from the cause title of petition of complaint that Mr. Supriyo Patra is the constituted attorney who is representing the O.P. and said Mr. Supriyo Patra is a resident of village Radhapur P.O.-Madhavpur P.S.-Bhupatinagar, District-Purba Medinipore. Considering the nature of the case and the prayers of the complainants it clearly indicates that the subject matter of dispute is nothing but a consumer dispute and its straightway gives signal that the pecuniary value of the case is within Rs.50, 000/-only i.e. within the limit of this Commission and the material on records goes to clearly indicate that this Commission has territorial jurisdiction also. So, this Commission can entertain and try the case.
Point No.3 and Point No.4
These two points are taken up together for the brevity and convenience of discussion. Complainant no.2 filed evidence on affidavit on his behalf as well as on behalf of the complainant no.1. It appears that the evidence on affidavit on behalf of the complainants appears to be more or less a replica of the petition of complaint. That apart it appears that on behalf of complainants photocopies of agreement for sale and other relevant photocopies of documents have been filed and those documents are lending support to a great extent in support of the complainants’ case.
Per contra, on behalf of the O.P. evidence on affidavit has been filed. In fact, in the evidence on affidavit of O.P. no appreciable material is forthcoming. It may be stated that in the evidence of O.P. it is mentioned that there is no deficiency in service or unfair trade practice on the part of O.P. That complainants are still customers to the O.P. and as complainants did not cancel the agreement as per terms and conditions and they have no locus standi to file the instant complaint. It is also mentioned that the project is on going and the complainants have no reason to withdraw themselves from the project.
It may be noted that the contents of W/V of the O.P. coupled with the evidence of him does not inspire this Commission to say anything positive in support of the O.P’s case.
Ld. Counsel appearing for the complainant in course of hearing argument has placed his reliance upon a judgment dated 10.12.2018 in connection with REVIEW PETITION (C) Nos.2629-2630 OF 2018 IN CIVIL APPEAL NOS.23512-23513 OF 2017 of the Hon’ble Supreme Court of India. This Commission finds that no doubt observation of said judgment will come up with a great help in support of complainants’ case. In fact, this Commission is of the view the gown taken by the O.P. for placing the dispute of the parties to the arbitration in fact will not effect in any way to the present complaint case. And this Commission is also of the view that the ground only to shield himself from liability O.P. has taken such a plea but it will not come up any help to O.P’s case.
BNA filed on behalf of the complainants has reflected the total happenings relating to this case and from BNA elaborate discussion relating to the merits and demerits of the case are appearing and this Commission finds force and spirits in the written argument of complainants appearing in BNA.
In view of the foregoing discussion and considering the attending facts and circumstances of this case this Commission is of the view that in fact, the evidence of complainants has become an unchallenged testimony as the O.P. has failed to adduce any positive contra evidence. It may be noted that complainants have become able to establish their case against the O.P. and there is no legal impediment for granting the reliefs as prayed for the complainants. From the materials on record it is also palpably clear that there is sheer negligence and deficiency in service as well as there is clear evidence of unfair trade practice on the part of O.P. and thus, O.P. is liable to pay his liabilities.
Accordingly the complainants are entitled to have the reliefs as prayed for.
Hence, it is
ORDERED
That the instant case be and the same is allowed on contest against O.P. with cost.
O.P. is directed to pay Rs.5, 24,832/-only along with interest @8%p.a on and from 18.12.2019 to the complainants and the entire amount should be paid by O.P. within 45 days from the date of this order.
O.P. is further directed to pay to the complainants a sum of Rs.50, 000/-only for compensation relating to harassment and mental agony.
O.P. is further directed to pay to the complainants a sum of Rs.15, 000/- toward cost of legal proceedings.
Let plain copy of this order be supplied to the parties free of cost.
Dictated and Corrected by
[HON'BLE MR. Shri Sankar Kumar Ghosh]
PRESIDENT
