FINAL ORDER/JUDGMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The present complaint has been filed by the complainants before this commission alleging deficiency of service and unfair trade practice by the OPs.
Brief facts necessary for the adjudication of the present complaint are that the complainants applied for allotment of a self content flat vide application dated 30.03.2017 with an account payee cheque of Rs. 1,00,000/- drawn on SBI Bagbazar Branch to the OPs in a project “Hiland Ganges” situated at 1, Rustamjee Parsee Road, Kolkata-700002. The OPs vide letter dated 27.05.2017 offering the complainants providing them referral benefit of Rs. 50,000/- to Rs. 60,000 in case the complainants had made a reference to any other intending purchaser to purchase of flat of their project “Hiland Ambassador”. OPs allotted apartment No. B-4 on the 6th floor of tower –T1 at Hiland Ganges measuring an area of 1266 sq. ft. with a covered car parking space. As per Clause 12 of the General Terms and Conditions, the OPs had to hand over physical possession of the apartment along with covered car parking space within 42 months from the date of provisional allotment letter with a further grace period of 3 months in default the OPs will be liable to pay interest at rate of 12% p.a. on the total amount of Rs.1,00,000/-. However, the OPs fail to complete the construction of the said apartment within the time specified as per the General Terms and Conditions. Despite several requests, the OPs did not refund the application money. Alleging deficiency in service and unfair trade practice on the part of the OPs, the complainants compelled to file the instant consumer case.
The OP 1 has contested the case and has raised preliminary objection with regard to jurisdiction of the commission to determine the complaint case. The specific case of the answering OP is that the complainants are not consumers within the meaning of Consumer Protection Act, 2019 and the complainants suppressed the material facts of the case. The complainants have no cause of action against the answering OP and further alleges that Hiland Ganges project where the complainants applied apartment and a covered car parking space is not floated by the OP 1. The complainants have fraudulently implicated the answering OP with a view to extort money. The answering OP has no nexus with the development of the subject project and they are in no way connected with the construction of the aforesaid project. Thus, the answering OP has prayed for dismissal of the complaint with cost.
The OP 2 has resisted the consumer complaint by filing WV and denied all the adverse allegations. It is specifically denied that the answering OP is guilty of deficiency in service and the complainants have no cause of action to file the instant consumer case. Complainants have applied for an apartment in a project namely Hiland Ganges being developed by the answering OP and the complainants never successfully allotted the said apartment as claimed. Principal amount of Rs. 1,00,000/- has already been returned to the complainants by issuing an account payee cheque in favour of the complainant No 1. The General Terms and Conditions are applicable in the event the prospective applicant is declared successful. The complainants are not declared successful and they are entitled to get the money paid at the time of submission of application form. The answering OP is not obliged to furnish any reason with regard to rejection of the application of the complainants. Thus, the complainants are not entitled to get any relief as prayed for and the complaint is liable to be dismissed with cost.
Both parties have filed their E/chief supported by an affidavit in order to prove their averments on record. Parties have also relied the documents annexed with the complaint petition and their E/chief. Both parties have also filed their written arguments.
We have perused the material available on record and heard the Ld. Counsel for the parties.
The fact that the complainants had submitted application form dated 30.03.2017 for allotment of apartment being No. B-4 on 6th floor in tower T-1 in the project Hiland Ganges measuring an area of 1266 sq. ft. along with a covered car parking space at 1, Rustomjee Parsee Road, Cossipore, Kolkata-700002 to the OP-2 Antrix Housing LLP. Complainants also paid Rs. 1,00,000/- as application money to the OP-2 along with the application form. The OP-2 issued money receipt to the complainants on 04.04.2017. There is no dispute that no allotment letter and/or provisional allotment letter was issued in favour of the complainants in respect of the apartment in question and covered car parking space though the OP-2 vide letter dated 27.05.2017 invite to support of the complainants to introductions their friends and families to consider becoming part of the Hiland Family at their various projects with a referral benefit of Rs. 50,000/- to Rs. 60,000/-. The subject apartment and covered car parking space has not yet been allotted to the complainants and the complainants are entitled to refund the deposited amount of Rs. 1,00,000/- as application money. Annexure E of the complaint petition itself goes to show that the complainant No. 1 requested the OP-2 to refund the advance amount against apartment applied in the Hiland Ganges and also furnished his bank details. The OP-2 in their WV and E/chief stated that they have already despatched the application money of Rs. 1,00,000/- to the complainant No. 1 vide cheque bearing No. 097374 dated 18.03.2021 drawn on ICICI Bank. Complainants and the OP-2 failed to produce any documents to establish that such amount is encashed by the complainant No. 1. OP-2 fails to produce any bank details to establish that such amount is encashed by the complainant No. 1. Thus, we are not at all satisfied that the amount of Rs. 1,00,000/- is encashed by the complainant No. 1 though the annexure B of the E/chief of OPs goes to show that they issued an account payee cheque of Rs. 1,00,000/- in favour of the complainant No. 1.
Relying on the General Terms and Conditions of the application form Clause No. 12 is not applicable in favour of the complainants as no allotment letter and/or provisionally allotment letter was issued in favour of the complainants. Thus, the complainants are not entitled to get any interest as prayed for in terms of the Clause Nos. 5 (a) and 5 (g) of the General Terms and Conditions of Hiland Ganges. The OP-1 has no connection with the construction of Hiland Ganges and the complainants submitted allotment application along with an account payee cheque of Rs. 1,00,000/- in favour of the OP-2 who are the developer of the project in question.
Keeping in view of the facts of the present case, we direct the OP-2 to refund Rs. 1,00,000/- being application money to the complainants within 60 days from the date of the order, along with interest at the rate of 7 percent ,p.a from the date of deposit till actual payment. The OP-1 is not a necessary party to the instant consumer case as they have no connection with the subject project. The complainants are unsuccessful allottee of the apartment and covered car parking space.
Thus, the consumer case is disposed of on contest against the OPs in terms of the above mentioned observations.
