For the Complainant                       -  Miss. Swadesh Priya Ghosh, Advocate

For the OP                                         -  Md. Irfan Ali Mir, Advocate

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT     :  

This is an application u/s.12 of the C.P. Act, 1986.

The case of the complainant, in a nut shell; is thatshe booked a flat being No.  903, Tower - A 4 measuring an area of 1310 Sq. ft. at a total consideration of Rs.72,50,000/- in “ Emami City” Project at 783, Anandapur, Kolkata – 700 107. Complainant has paid Rs.2,00,000/-  as earnest money by an A/c Payee Cheque being No. 000035 dated 14.11.2017 which was duly encashed  by the OP. The OP assured her that the flat will be provided at the 2^nd floor of the said project, though it was booked at 9^th floor instead of 2^nd floor. Despite of several requests, the OP did not confirm about booking of flat on the 2^nd floor. Finding no other alternative, the complainant verbally requested the OP to refund the earnest money but the OP killing time taking advantage of her old age. Ultimately, vide letter dated 19.05.2018 complainant demanded to refund the earnest money within 15 days from the date of receipt of the letter but such request was unattended. Lastly, legal notice dated 26.07.2018 was issued to the OP, which was duly replied by the OPdenying his liabilities. Hence, the complainant filed the instant consumer case praying for certain reliefs as per prayer of the complaint petition.

The consumer complaint has been resisted by the OP on the ground that the instant complaint is not maintainable for want of pecuniary jurisdiction. The OP in his Written Version makes mentioning that the complainant had booked a flat being No. AG-903, Tower - A 4 measuring about 1310 Sq.ft. on the 9^th floor of Premises No. 783 Andnaapur, East Kolkata Township Project, Kolkata-700107 at a total consideration of Rs. 72,50,000./-. In terms of the booking, complainant had paid Rs.2,00,000/- as earnest money out of the total consideration  through chaque which was duly encashed on 17.11.2017. The complainant further assured the OP to complete the sale procedure within one month from the encashment of the said cheque by paying balance amount failing which 50 percent of the earnest money shall be forfeited. Upon expiry of the stipulated period of one month, the complainant did not shown any interest to complete the sale procedure for which the OP did not sell the flat in question to else one. No such conversation,had been taken between the parties regarding change of floor of flat and/or refund of earnest money as alleged by the complainant. Thus, the OP has prayed for dismissal of the complaint.

Decision with Reasons

            In support of her case, complainant Smt. Tapati Saha has tendered evidencethrough affidavit. She has also given reply against the questionnaires set forth by the OP.

            On the other hand, the OP, Sanjay Kumar Parekh has filed evidence through affidavit. He has also given reply against the question set forth by the complainant.

            In course of hearing of argument, the Ld. Advocate for the OP has contended that this Forum has no pecuniary jurisdiction to entertain the complaint as the value of the flat in question is Rs.72,50,000/-. Per contra, the Ld. Advocate for the complainant has stated that in view  of the judgment of the Hon’ble NCDRC passed in CC No. 931 of 2018 (Smt. Priyanka Saha –Vs. – Anik Industries Ltd.), this Forum has pecuniary jurisdiction to entertain the instant complaint.

            We have perused the above cited decision. The value of considerationas per the definition of ‘Consumer given U/s 2 (1) (d) of the Consumer Protection Act, 1986 includes ‘partly paid or partly promised’. Thus, in case of refund of the amounts paid to the OP /Builder, there would be only be the element of “partly paid“ and the element of “promised to be paid” would be missing. Thus, the consideration in a case of refund would only mean the amount paid and therefore, consideration paid in the above quoted observation in decision in Ambrish Kumar Shukla & Ors. (supra) could be only the amount  paid by the complainant  to the OP and this shall decide the pecuniary jurisdiction of the consumer Forum. In the instant case, the complainant has paid Rs. 2,00,000/- to the OP  as earnest money  for booking of the flat. Thus, the value of service in a complaint case seeking refund of the paid would be limited to the amount paid whose refund has to be sought for. Thus, this figure of Rs.2,00,000/- does not cross the figure of Rs.20,00,000/- Hence, this Forum has pecuniary jurisdiction to entertain the instant complaint.

            Undisputedly, the complainant booked a flat being No. 903, Tower-

A 4 in Emami City Project at 783 Anandapur, Kolkata 7000107 measuring about 1310 sq. ft. at a total consideration of Rs.72,50,000/- It is not in dispute that the complainant has paid Rs.2,00,000/- as earnest money by an A/c payee cheque dated 17.11.2017 in favour of the OP who has also encashed the said cheque.

The grievance of the complainant is that the OP assured to provide her a flat on the 2^nd floor of the subject project instead of 9^th floor considering her age but ultimately, the OP did not make it confirm. Thus, the complainant requested the OP to refund the earnest money. On the contrary, the OP denied the allegations of the complainant to the effect that there was no verbal discussion between them regarding shifting of floor of flat. Complainant was not ready to complete sale procedure within one month of date of payment of earnest money for which 50 percent of the earnest money liable to be forfeited.

On perusal of the pleadings of the partiers as well as evidence on record, it appears to us that there is a blame and counter blame between the parties regarding shifting of floor of the flat in the Emami City Project. There is oath versus counter oath between the parties to that effect. There is no documentary evidence regarding shifting of floor. It is true that the complainant is aged about 71 years and also a senior citizen. It is a fact that being an aged person it is too much difficult for the complainant to reside at 9^th floor of the proposed project, though there is lift facility exists. Usually, aged persons preferred to stay lower floor to avoid any inconvenience. No sale agreement was executed between the parties though the complainant has paid Rs.2,00,000/- as earnest money. It is true that the complainant is seeking refund of earnest money for non-shifting of floor. It cannot be ruled out that the complainant want to pull out due to such reason. In our opinion, the complainant is entitled to ask for the refund, however, in this circumstances the complainant is not entitled to get any compensation as no deficiency in service has been established or proved against the OP. It is also true that refund is required to be given with some interest as the amount has been retained by the OP. As the complaint is being allowed, the unauthorized retention of the paid amount would be considered only from the date of filling of the complaint in the facts and circumstances of the present complaint case. Hence, in the present case, we deem it appropriate to order refund of the paid amount of Rs.2,00,000/- with simple interest  at the rate of 5 percent PA from the date of filing the complaint which in the present case would be taken from 10.10.2018.

Based on the above discussion, the compliant is allowed on contest and the OP is directed to refund Rs.2,00,000/- to the complaint along with simple interest  at the rate of 5 percent PA from 10.10.2018  till actual payment.

The OPs is directed to complythis order within a period of 45 days from the

date of the orderin default, complainant may put the order in execution according to law.