DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

MUCHIPARA, BURDWAN.

Consumer Complaint No. 248 of 2014

Date of filing: 12.12.2014                                                                  Date of disposal: 10.06.2016

Complainant:               Mr. Bidyut Chakraborty, S/o. Mr. Joygopal Chakraborty, resident of 15/8, Annapurna Nagar, Benachity, Durgapur, PO: Benachity, PS: Durgapur, District: Burdwan, PIN – 713 213.

-V E R S U S-

Opposite Party:    1.     Shrachi Burdwan Developers Pvt. Ltd., having its office at Shrachi Towers, 686, Anandapur, EM Bypass, RB Connector Junction, Kolkata, PIN – 700 107, West Bengal, service through its Proprietor.

2.      Shrachi Burdwan Developers Pvt. Ltd., having its Branch Office at Renaissance Township, Near Nababhat More, NH-2, Goda, PO., PS. & District: Burdwan, service through its Director.

Present:       Hon’ble President: Sri Asoke Kumar Mandal.

                        Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:                Ld. Advocate, Debdas Rudra.

Appeared for the Opposite Party No. 1:  None.

Appeared for the Opposite Party No. 2:  Ld. Advocate, Mathura Mohan Goswami.

J U D G E M E N T

This complaint is filed by the Complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not refund him the deposited amount towards part payment of the flat along with interest till filing of this complaint.

The brief fact of the case of the Complainant is that being desired to purchase a flat from the OPs he booked a flat with the OPs and filled up the application form on 30.12.2011 and deposited a sum of Rs. 51,288=00 towards booking money of the flat. Upon receipt of the filled up from, the OPs sent a confirmation letter of provisional allotment of the flat on 21.01.2012 wherein details were mentioned in the schedule stating the property/flat in the township known as Renaissance at Burdwan. The total value of the said flat is Rs. 19, 51,850=00. The OPs also stated in the said letter that they will take initiative to hand over the possession of the allotted property to the Complainant within 36 months from the date of receipt of the allotment letter duly countersigned by the Complainant. Thereafter the OPs also sent a demand letter/invoice for advance on 20.01.2012 directing the Complainant to make payment of Rs. 3, 18,791=00 on or within 29.02.2012 towards installment of payment as per agreement. In this way the Complainant has already paid Rs. 7, 06,518=00 up to 13.3.2012 to the OPs towards part payment of the said flat. All on sudden the OPs sent a letter to the Complainant on 17.05.2012 demanding of Rs. 2, 81,009=00. The OPs against sent a letter to the complainant on 13.09.2013 regarding upgraded offer at Renaissance, Burdwan stating that the construction work for the unit of the Complainant was going on full swing and they invited the complainant to make his dream home. During this period the OPs sent a letter dated 07.11.2013 about the happening of the most unfortunate, abnormal and unexpected force majeure incident in Renaissance Township, which forced them to close their site office and stopped the entire work at Renaissance Township project. It was also stated in the said letter that some persons under the banner of Paschim Bardhaman Krishi Kalyan Samity have forcefully occupied the site and due to which entire work in the project has stopped and also requested the Complainant to bear with them till resolution of the present hazards at the Renaissance Township project. The OPs also sent a letter on 26.08.2014 to the Complainant requesting to pay the overdue amount for Rs. 13, 02,772=00 immediately to avoid further accrual of interest against the booking/allotment at Burdwan Township, Nakshatra Heights-T24 Unit: 4. Upon receipt of the said letter he went to the office of the OPs and requested them to give him some time for making payment of the overdue amount of Rs. 13, 02,772=00 because he was suffering from financial stringency due to his physical illness at that moment, but no fruitful response was received by the Complainant from the OPs. All on a sudden the OPs sent a notice to the Complainant on 29.09.2014 for cancellation of provisional allotment because the Complainant has failed and neglected to clear the payments to them and also requested to remit the outstanding amount of Rs. 13, 20,899=00 within 13.10.2014 failing which the OPs shall be constrained to cancel the said allotment of the flat. Upon receipt of the cancellation notice the complainant requested the OPs in writing to give him some time for making payment of the further balance amount because due to his poor business the Complainant could not deposit the due installment amount in respect of both the bungalow and the flat and also due to his illness the complainant has been suffering a great financial need. The Complainant undertook that he would pay the entire dues to the OPs as early as possible. Thereafter the Complainant requested the OPs on several occasions to withdraw the cancellation notice and let the Complainant know how and when he would make payment of his outstanding dues in compliance with the terms and the conditions of the agreement, but no fruitful result came from the part of the OPs, which amounts to deficiency in service as well as unfair trade practice on behalf of the OPs. So finding no other alternative to get relief, the Complainant being compelled has filed this complaint before this ld. Forum praying for direction upon the OPs to refund him the entire amount of Rs. 7, 06,518=00 as deposited by him to the OPs towards the part payment of the flat along with interest, compensation to the tune of Rs. 2, 00,000=00 due to mental pain, agony and harassment and litigation cost of Rs. 20,000=00.

The petition of complaint has been contested by the OP-2 by filing written version contending that this OP is highly reputed developing company through the entire State of West Bengal. The OP started to develop a huge area of land at Nababhat, Goda and Isufabad and presently the development process is almost complete and out of the said development a new township at the heart of the Burdwan City, namely, Renaissance has been constructed within Mouja Nababhat. The Complainant had approached before the developer company intending to purchase one flat. After formal documentary formalities the OP issued one provisional allotment letter in respect of the suit property. As per payment schedule mentioned in the agreement the Complainant paid few installments in favour of the development company and subsequently as one upgraded scheme came across the OP initiated, the intimation was given to the Complainant and the Complainant agreed to obtain the said scheme. The payment system of the said upgraded scheme was strictly mandatory and the same was duly intimate to the Complainant. The Complainant undertook to abide by the Rules and Regulations of the said mandate of the payment system. Therefore the Complainant was bound and liable to discharge his obligation in respect of the agreement along with the OP, but the Complainant discharged his obligation for few months and thereafter without intimating anything he stopped all sorts of payment towards installment in respect of the suit flat. The Complainant did not make any contact in connection with the stop payment. The OP tried to contact with him on several occasions, but to no effect. After 26.08.2014 the OP issued an overdue notice in favour of the Complainant but the Complainant did not response the same. After giving several chances the OP took decision to cancel the provisional allotment having no alternative as the said suit flat was lying unnecessarily. Finally one cancellation of allotment letter issued by the OP on 29.09.2014 along with a payment statement stating that the allotment of the Complainant will be canceled if he does not bother to pay the outstanding and overdue amount on or within 13.10.2014, but unfortunately no response was received by the OP till the deadline date and afterwards. After lapse of a long period, the Complainant contacted with the OP stating that as he was physically ill and his business was running through some dilemma, he was not in a position to make payment of due installment amount and prayed for withdrawal of the cancellation of allotment along with exemption of all payable interest amount which was levied upon him. In this connection the Complainant did not submit any evidentiary documents or any related paper regarding to his plea which transparently makes it clear that the case suffers from lack of cogent evidence since inception. It is further stated by the OP-2 that as the Complainant and the OP have entered into an agreement it was the bounden duty of the Complainant to abide by the terms and the conditions of the agreement, but the Complainant willfully did not abide by the same and without abiding by the same the Complainant has filed the instant complaint with ill motive to obtain financial gain through this consumer complaint from the OP. The OP-2 has mentioned that the present complaint is not maintainable before this ld. Forum and it is barred by principles of estoppels of waiver and acquiescence. According to the OP-2 the present complaint is liable to be dismissed with cost.

The Complainant has filed evidence on affidavit along with several documents in support of his contention. The OP-2 has filed written notes of argument along with several documents, namely, copy of GTC etc. In the written notes of argument the OP-2 has relied on several rulings in support of his argument and accordingly filed the copy of those rulings. The copy of the written notes of argument is received by the complainant with objection. The Ld. Counsel for the Complainant has also placed reliance on several Rulings in support of his argument and the copy of the same is filed. 

It is seen by us from the record that after admission of the complaint notices were issued to the OPs through this ld. Forum and date was fixed on 16.01.2015 for Service Return and appearance of the OPs. The order no-13, dated 22.06.2015 reveals that the notice upon the OP-1 had not been served and under this circumstances the Complainant was directed to take fresh steps upon the OP-1 and accordingly the complainant filed necessary requisites for issuance of notice upon the OP-1. The order no-16, dated 12.08.2015 shows that the postal track report reveals that the OP-1 has duly received the notice but did not appear before this ld. Forum and hence this ld. Forum was pleased to fix argument of the complaint ex parte against the OP-1. On the date of final argument none was present on behalf of the OP-1 and we took up the argument ex parte against the OP-1.

We have carefully perused the entire record, the documents filed by the parties, written notes of argument filed by the OP-2 and several rulings on which the OP-2 as well as the Complainant have placed their respective reliance. We have heard argument at length advanced by the ld. Counsel for the Complainant and the OP-2. It is seen by us that there are some admitted facts in the in the case in hand i.e. the Complainant entered into an agreement with the OPs for purchasing a flat, filled up application was submitted, deposited Rs. 51,288=00 towards booking money of the flat, money receipt issued by the OPs, provisional allotment letter in respect of the flat was also issued by the OP, the countersigned provisional allotment letter by the Complainant was also received by the OP, the total value of the said value is Rs. 19,51,855=00, it was mentioned that that the Complainant will get the possession of the allotted property within 36 months from the date of receipt of the countersigned allotment letter by the OP, the Complainant paid Rs. 7,06,518=00 through some installments out of the total value of the said flat, due to some reasons the Complainant could not make payment of due installments, the OP demanded the overdue amount from the Complainant, the Complainant did not make payment of several installments within due period inspite of issuance of notice by the OP, the OP cancelled the allotment in respect of the said flat, no amount has yet been refund to the Complainant by the OP in respect of the deposited amount. The allegation of the Complainant is that as the OPs have cancelled his allotment in respect of the flat, hence he is very much entitled to get back the deposited amount of Rs. 7, 06,518=00 along with interest from the OP. As the OP did not refund the said amount, hence this complaint is initiated.

At the time of argument the ld. Counsel for the OP-2 has put some emphasis on the point that the Complainant is not at all a consumer of the OPs. In this respect the OP-2 has relied on several Rulings i.e. Jagmohan Chabra & Anr. Vs. DLF Universal Limited reported in Vol –IV (2007) CPJ 199, Chilukuri Adarsh Vs. M/S. Ess Ess Vee Constructions (NC), Civil Appeal NO. 6030-6031 of 2008 (SC), Indrajit Dutta Vs. Samriddhi Developers Pvt. Ltd. & Ors. (NC), Sunil Gupta Vs. Today Homes & Infrastructure (NC), Naresh Chandra Guha vs Ram Chandra Samanta & Another (Hon’ble Calcutta High Court), Meenakshinada deikshtar vs murugesa Nadar & Another (Hon’ble Madras High Court). Shib Prosad Roy Chowdhury & Another vs Ashok Kumar Banerjee & Another (CC/71/2010, Hon’ble SCDRC, West Bengal), Satish Kumar Gajanand Gupta vs M/s. Srushti Sangam Enterprises (296/2011, Hon’ble NCDRC), Maya Bhattacharjee vs Sri Swapan Kumar Das (FA/748/2012, Hon’ble SCDRC, West Bengal), & GVSN Murthy vs M/s Suchir India Infratech (P) (CC/118/2012, Hon’ble SCDRC, AP).

The Ld. Counsel for the Complainant has relied on some judgments i.e. Bihar School Examination Board vs Suresh Prasad Sinha, reported in 2009 (6) Supreme 421, Kavita Ahuja vs Shipra Estate Limited & Jai Krishna Estate Developers Private Limited (CC/137,145,146/2010, Hon’ble NCDRC), DLF Limited vs Bhagwanti Narula, reported in 2015 CPR (NC) 217, HUDA & another vs Kewal Krishan Goel & Others, reported in 1996 (4) supreme 142.

Before entering into the merit of the complaint at the very outset we are to adjudicate the principle controversy resolves around the question, whether, the Complainant Sri Bidyut Chakraborty is a consumer in this case?

It is noticed by us that by filing another Consumer Complaint being No. 249/2014 Mr. Bidyut Chakraborty, Complainant has made allegation in respect of deficiency in service as well as unfair trade practice against the OPs as the OPs did not refund the deposited amount towards part payment of the schedule property/bungalow. From the averment of the Consumer Complaint No- 249/2014 it is revealed that the Complainant also booked a bungalow with the OPs along with the instant flat as mentioned in the Consumer Complaint No- 248/2014. So it is clear that the Complainant booked one flat and one bungalow with the OPs and accordingly paid part payments towards the both as per agreement. In respect of such booking of a flat and a bungalow the contention of the OP-2 is that the Complainant cannot be termed as a consumer because he booked one flat and one bungalow with these OPs, though the booking of bungalow was cancelled at a later period, but the booking was made simultaneously by the complainant. We have carefully perused the Rulings as relied on by the OP-2. In the case of Indrajit Dutta Vs. Samriddhi Developers Private Limited the fact of the case was that the Complainant purchased two flats for his personal residence use from the OPs who were owners and developers for a sum of Rs. 30, 25,000=00. Even after expiry of seven years from receipt of sanctioned plan, finished work of flats has not been completed and possession has not been given which was to be given by 07.02.2010. Alleging deficiency in service on the part of the OPs the Complainant filed the complaint before the State Commission claiming huge compensation. OP filed application and submitted that complaint was not maintainable as purchase of two flats by the Complainant amounts to commercial purpose and Complainant does not fall within the purview of the consumer. The Ld. State Commission after hearing both the parties dismissed the complaint as not maintainable as the Complainant does not fall within the purview of the consumer, against which an appeal was preferred before the National Commission. In the said judgment the Lordships of the Hon’ble NCDRC has mentioned in the paragraph no-6 which runs as follows:

6. The ld. Counsel for the Respondent has placed reliance on the judgment of this Commission in Vol-III (2012) CPJ 315, Chilukuri Adarsh Vs. Ess Ess Vee Constructions in which it was held that when a consumer has booked more than one unit of residential premises, it amounts to booking of such premises for commercial purposes. This Commission in Vol -IV (2007) CPJ 199 in the case of Jagmohan Chabra & Anr. Vs. DLF Universal Limited also observed that when the Complainant has booked two flats on second floors he does not fall within the purview of the consumer. This Commission in CC/ 05/2014 & 06/2014, Sunil Gupta Vs. Today Home & Infrastructure Private Limited observed that consumer cannot book two different villas. In the light of the aforesaid judgments it becomes clear that as the Complainant has purchased two flats, it cannot be said to be for his residential purpose but amounts to be investment for commercial purpose and the Complainant does not fall within purview of the consumer. In the judgment passed by the Hon’ble NCDRC in the case of Sunil Gupta Vs. Today Homes and Infrastructure it has been mentioned in the paragraph-8 by Their Lordships as follows:

8.      This Commission in the case titled, Chilukuri Adarsh Vs. Ess Ess Vee Constructions, III (2012) CPJ 315 has held as under:-

Arguments of the ld. Counsel have been considered. However, we are of the view that the complaint as presented cannot be maintained before and Consumer Fora, like ours, as the agreement was for the construction of two showrooms, which obviously relate to commercial purpose and the complaint therefore, will not come within the definition of a consumer, as per the Section 2 (1) (d) of the C.P. Act, 1986. This has been the consistent view of this Commission. It has held that even when a consumer has booked more than one unit of residential premises; it amounts to booking of such premises for investment/commercial purpose. This Commission in the case of Jagmohan Chabra & Anr. Vs. DLF Universal Ltd. IV (2007) CPJ 199, in a somewhat similar case held that the complaint was not maintainable under the C.P. Act, 1986. It had therefore disposed the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Hon’ble Supreme Court in the Civil Appeal no. 6030-6031/2008, filed before the Supreme Court stands dismissed, vide Apex Court’s order dated 29.09.2008.

Apart from the abovementioned Rulings, the Ld. Counsel for the OP-2 has placed its reliance on some other Rulings as mentioned earlier, but we are not inclined to discuss all those Rulings, because the facts and circumstances of those Rulings are almost same and identical with the discussed Rulings.

Now we are to discuss on the Rulings as relied on by the Ld. Counsel for the Complainant. The Complainant has relied on the paragraph no-14 of Bihar School judgment (Supra). Upon careful perusal of the said paragraph we are of the view that it is the settled principle of Law and the said principle is very much applicable in all cases irrespective of facts and circumstances of the case. According to the Complainant he is very much a consumer as per the Consumer Protection Act, 1986 in view of the judgment passed by the Hon’ble NCDRC in the case of Kavita Ahuja vs Shipra Estate Limited & jai Krishna Estate Developers Private Limited. We have carefully gone through the said judgment and it is seen by us that the fact of the said case is that the Complainant booked three flats with the OPs, Rs. 5,00,000=00 was paid each against all three bookings towards booking amount, three allotment letters were issued, total value of those flats were Rs. 1,09,76,100=00, Rs.1,13,93,825=00 & Rs.1,25,66,150=00 respectively, as the developer failed to complete the construction within stipulated time and to hand over possession three complaints was initiated by the Complainant against the OPs before the Hon’ble NCDRC. In the paragraph no-4 of the said judgment it is mentioned which runs as follows:-

4.                ‘In the said case question arose for consideration as to whether the Complainant can be said to be a consumer within the meaning of the Section 2(1)(d) of the CP Act………….. Since the Complainant had booked three residential flats which were to be constructed by the developer, she would be a consumer unless it is shown that she had booked the said residential flats for a commercial purpose. The plea taken by the OPs in this regard is that booking of as many as three residential flats in the same project clearly shows that the said flats were purchased by the Complainant for the purpose of making investments, meaning thereby that she did not intend to live in those flats but intended to sell them later at a higher price. Vide letter dated 29.10.2012, the Complainant was directed to file an affidavit, disclosing therein that for what purpose the three flats were booked by her. In compliance of the aforesaid direction, the Complainant filed an affidavit stating therein that she had booked three residential flats for use and occupation for herself and her family members. She wanted to retain one flat for use as her own residence and the other two were for the use and occupation of her in-laws and younger sister Ms. Priya Chopra. She also stated that she does not have any flat or residential house in her name and is staying in a rented accommodation provided by the company; whereas her in-laws are staying in a house constructed in pre-independence period, which is more than 30 years old. She also stated that her younger sister is staying with her parent and does not own a residential flat in her name. According to the Complainant she wanted all the family members to stay together and at the same time also have their respective independence and that is why three flats in the same project were booked by her. No evidence has been led by the OPs to rebut the aforesaid averments made by the Complainant. If the complainant wanted her younger sister as well as her in-laws to stay in her vicinity so that the family can be together while simultaneously maintaining their individual privacy, it cannot be said that the flats were purchased by her for a speculative purpose or for making profit by selling them at a later date. If one of the family members has resources to buy houses for the other members of the family and utilizes those resources with a view to enable the family members to live together in the same complex, it would be difficult to say that such a purchase would be for a commercial purpose.’

Upon careful reading of the abovementioned judgment as relied on by the ld. Counsel for the Complainant it is seen by us that the fact and circumstances of the relied case and the instant complaint are not similar and identical because in the case in hand the Complainant has neither stated in the petition of complaint nor disclosed in his evidence the purpose of purchasing one flat along with another bungalow. Whether the flat and the bungalow were purchased for his residential purpose or not, no averment is forthcoming before us, whether the said flat and bungalow were for his own use and occupation or not, the picture is not at all clear. Most interestingly, the complainant did not mention either in the complaint or in the evidence that in his family how many family members are and/who will reside at the flat and at the bungalow simultaneously. In the relied case the Complainant adduced evidence and no contrary evidence has been led by the OPs to rebut the averments made by the Complainant. But in the instant complaint no evidence has been adduced by the Complainant in that manner, on the contrary the OP-2 has challenged the locus standi of the Complainant stating that he is not a consumer as he purchased one flat and a bungalow in the same project. Therefore onus lies upon the shoulder of the Complainant to prove that he is a consumer and if he succeeds to prove the same by adducing cogent evidence then only onus will be shifted upon the shoulder of the OP-2. But in our opinion the Complainant has failed to prove himself as a consumer within the purview of the definition of ‘Consumer’ as enumerated in the Consumer Protection Act, 1986.     

Moreover, in the ruling as relied on by the ld. Counsel for the OP-2 i.e. in the case of Chilukuri Adarsh Vs. M/s. Ess Ess Vee Constructions passed by the Hon’ble NCDRC it is mentioned therein that the judgment passed by the Hon’ble NCDRC in the case of Jagmohan Chabra, the same was upheld by the Hon’ble Supreme Court. Then it is clear that the findings of the Hon’ble NCDRC passed in that case has been affirmed by the Hon’ble Supreme Court in the Civil Appeal no. 6030- 6031/2008. But the ruling on which the ld. Counsel for the complaiant has relied on the case of Jagmohan Chabra has not been discussed.

Therefore, having regard to the above-mentioned judgments passed by the Hon’ble Supreme Court and Hon’ble NCDRC we are of the view that the complainant is not a consumer. We cannot arrogate to ourselves the powers with which we are not armed with. As the complainant has failed to prove himself as a consumer we are not inclined to enter into the merit of the complaint.   Hence, it is

O r d e r e d

that consequently both the Consumer Complaints, namely, 248/2014 & 249/2014 are hereby dismissed. No order as to costs.

However, we reserve the right of the Complainant to approach the appropriate Civil Court to seek his remedy, if so advised. We may take advantage of the Ruling of the Hon’ble Supreme Court in the case of Laxmi Engineering Works Vs. PSG Industrial Institute reported in Vol-II (1995) CPJ (1) SC, to seek exclusion of the time spent in prosecuting these complaints before this ld. Forum.

Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.

                                  (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                                         President       

                                                                                                                                  DCDRF, Burdwan

                      (Silpi Majumder)                                                       

                           Member                                                                      

                    DCDRF, Burdwan

                                                       (Pankaj Kumar Sinha)                          (Silpi Majumder)

                                                              Member                                                     Member    

                                                        DCDRF, Burdwan                               DCDRF, Burdwan