Orissa

Cuttak

CC/18/2022

Satabdi Das - Complainant(s)

Versus

Partner,S S Infrastructures - Opp.Party(s)

R K Pattanaik & associates

18 Oct 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                     C.C.No.18/2022

 

Satabdi Das,

D/O:Ashok Kumar Das,

Resident of Plot No.693/1603,Behera Sahi,

Near Nilakantheswar Temple,SaiOmm Medicine

Building,2^nd Floor,Nayapalli,Bhubaneswar-751012,

At present residing at Sanjukta Das,

Plot No.7/D-1289,CDA,Sector-9,

Markatnagar,Cuttack-753014.                                                                   ... Complainant.

 

                                                Vrs.

1.        S.S.Infrastructures,

Represented through its partner,

Santa Rao Sriperambuduru,Habving its Regd.

Office at Plot No.1539/2458,Naharkanta,

Near Metro Satellite City,Bhubaneswar-752101.

 

2.        Santa Rao Sriperambuduru,

Partner of M/s. S.S.Infrastructure,

Plot No.317,Flat No.105,Ashok Charu Niwas,

Unit-3,Kharavel Nagar,Bhuaneswar-751001.                                       ... Opp. Parties.

 

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    01.02.2022

Date of Order:   18.10.2022

 

For the complainant:          Mr. R.K.Pattnaik,Adv. & Associates.

For the O.Ps               :         Mr. A.K.Samal,Advocate.

 

Sri Debasish Nayak,President.                                      

            Case of the complainant bereft of unnecessary details as made out from the complaint petition in short is that the complainant being allured with the advertisement of the O.Ps for purchasing a flat as being constructed by them in the city of Bhubaneswar near Naharakanta under the name and style as “Gulmohor Court” had booked a flat in that apartment by making an application on 23.6.2020.  The O.Ps had allotted the complainant a 3 BHK apartment bearing no.203 at the second floor of Block-A measuring an area of 1690 Sft. in the project “Gulmohor Court” situated at Nakhara near Pahala on 23.6.21.  The complainant had paid a sum of Rs.5,00,000/- through two account payee cheques, one for Rs.3,00,000/- and the other for Rs.2,00,000/- vide dt.23.6.20 and 27.6.20 respectively.  The total cost of the flat was to be of Rs.61,05,000/- which was to be paid in a phasewise manner according to the progress of the construction work which has been indicated in the allotment letter.  The complainant received a letter on 2.9.20 from the O.Ps where she was requested to make further payment and it was followed by a reminder through mail on 19.11.20.  After getting the reminder on 19.11.20, the complainant had requested the O.Ps seeking few days time since because her family members were suffering from Covid-19  during pandemic, but the O.Ps had cancelled her allotment unilaterally and had ventilated the same through their letter dt.26.11.20.  A mail to that aspect was also given by the O.Ps on 7.1.21 to the complainant.  Having no other alternative, the complainant had approached the O.Ps to get refund of the money as given by him but the O.Ps denied to refund the same saying it has been forfeited.   The complainant had to issue a pleader’s notice to the O.Ps on 15.11.21 seeking refund of his money but when no action was initiated, the complainant had to file this case for refund of her money of Rs.5,00,000/- alongwith interest thereon @ 12%  together with a compensation amount of Rs.1,00,000/- towards her mental agony and harassment and also her litigation cost to the tune of Rs.25,000/-.

              The complainant has filed copies of documents and letters with mails as received and sent in order to prove his case.

2.         The O.Ps have contested this case and have filed their written version jointly.  According to them, the complaint petition is not maintainable, there is no cause of action and the complaint petition is liable to be dismissed. They allege that the complainant has deliberately suppressed and misrepresented several facts; the complaint petition is barred by limitation.  According to the O.Ps, 10% of the booking amount is to be forfeited as cancellation fee and the GST paid shall also be deducted from the amount and thereafter the amount is only to be refunded after getting the appropriate buyer for the said cancelled apartment.  Thus, according to them, a sum of Rs.4,50,000/- is the amount to which the complainant is entitled to receive as refund from them.

            The O.Ps have also filed several copies of documents in order to prove their case.

3.         Keeping in mind the averments as made in the complaint petition together with the contents of the written version, this Commission is of a view to settle the following issues in order to arrive at a proper conclusion.

i.          Whether the case of the complainant is maintainable ?

ii.         Whether there was any deficiency in service on the part of O.Ps and if they had thereby practised unfair trade?

            iii.        Whether the complainant is entitled to the reliefs as claimed ?

Issue no.ii.

            Issue no.ii being the pertinent issue is taken up first for consideration here in this case.

            As it appears from the contentions of either sides in this case, the complainant had booked a flat with the O.Ps and had paid an advance amount of Rs.5,00,000/- but lateron the complainant had defaulted for which the O.Ps had to cancel the allotment issued by them earlier in favour of the complainant.  The complainant had tried to get back her money from the O.Ps but when she failed to get back her money from the O.Ps, she had to file this case.  On perusal of the written version as filed by the O.Ps in this case, at para-16 (page-7) of the written version the O.Ps do admit that the complainant is entitled to receive a refund of Rs.4,50,000/- after deduction of 10% of the booking amount towards the cancellation charges.  When the O.Ps do admit about the same and when they had cancelled the allotment in favour of the complainant due to her default in payment on 26.12.20 and had also confirmed the same cancellation on 7.1.21, it is not clarified by the O.Ps that what had prevented them in not refunding the amount as due to the complainant after deduction of the cancellation fee till now.  Thus, there is undoubtedly deficiency in service which is well evident.  Accordingly, this issue is answered.

Issues no.i & iii.

            The complainant when was unable to get back refund of her money from the O.Ps who had cancelled her allotment of flat, had filed this case which is ofcourse maintainable and the complainant is thus entitled to the reliefs as claimed by her.  Hence it is so ordered;

                                                            ORDER

            The case is decreed on contest against the O.Ps who are found to be jointly and severally liable here in this case.  The O.Ps are thus directed to refund an amount of R.4,50,000/- as admitted by them through their written version to the complainant alongwith interest thereon @ 12% per annum with effect from 7.1.21 till the total amount is quantified.  The O.Ps are further directed to pay a sum of Rs.1,00,000/- to the complainant towards the mental agony and harassment as caused by them due to their deficiency in service and also to meet the litigation expenses of the complainant to the tune of Rs.25,000/-. This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 18^th day of   October,2022 under the seal and signature of this Commission.           

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                       

                                                                                                                                      Sri Sibananda Mohanty

                                                                                                                                Member