Date of filing :27.3.2017

Judgment : Dt.08.07.2019

Mrs. Sashi Kala Basu, Hon’ble President

This petition of complaint is filed under section 12 of C.P.Act, 1986 by Munshi Sahabuddin alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Shribhumi Realty Pvt. Ltd., (2) Gopal Malakar, (3) Mr. Biswabrata Maity and (4) Mr. Sagar Ganguly.

            Case of the Complainant, in short, is that the OP No.1 is a real estate company which performs buying, selling and renting and operating of self-owned or leased real estate. OP No.2 to 4 are the Directors of the OP No.1 and have utilized the funds of company at different point of time, to their benefits. On seeing the wide publication through internet advertisement, Complainant got in touch with a representative of the OP No.1 for purchasing two flats under HIG Category in the project (Shribhumi) and booked the same on payment of a sum of Rs.4,10,000/-, in favour of the Shribhumi Realty Pvt. Ltd. On payment of Rs.4,10,000/- towards confirmation, two declaration forms were issued by the OP No.1. It was assured that the said flat would be completed and handed over in the beginning of the year 2016. But, till date the project has not been completed and the project site is completely vacant. So, finding no progress, the Complainant by a letter dt.29.8.2016 through his Ld. Advocate, addressed to the OP No.1 asked for refund of the money. Notice was refused by the OP No.2 to 4 and it returned against OP No.1 that addressee moved. But in spite of sending of notice, OPs did not refund the amount to the Complainant. OPs have resorted to unfair trade practice. So, the present complaint has been filed praying to direct the OPs to jointly and severely return Rs.4,10,000/- towards booking amount paid to OP No.1 along with interest @ 10%, to pay compensation of Rs.1,00,000/- for causing mental harassment and agony and Rs.20,000/- towards litigation cost and other incidental charges.

            Complainant has filed two declaration forms and the copy of the notice sent through Ld. Advocate asking for the refund of booking amount of Rs.4,10,000/- along with interest .

          So, the only point requires determination is whether the Complainant is entitled to the relief as prayed for.

            Decision with reasons

            Complainant has claimed that he booked two flats under HIG category from the OP Company and has paid a sum of Rs.4,10,000/- by two cheques dt.8.12.2011. According to him in spite of making said payment of such booking amount, he has neither been handed over the flat nor has been refunded the amount. But, in order to substantiate his claim that he paid Rs.4,10,000/- Complainant has only filed declaration form, no money receipt has been filed acknowledging receiving of amount by the OP Company. The declaration form which has been filed by the Complainant does not find any acknowledgment from the OP about receiving of the amount of Rs.4,10,000/- on 8.12.2011 as claimed by the Complainant. In the said declaration relied upon by the Complainant there is only reflection about payment plan and also application money Rs.4,10,000/-. But, since no receipt has been filed only having a seal of OP Company in the said form by itself cannot be a sufficient document to establish the claim of the Complainant about payment of Rs.4,10,000/-. According to Complainant he paid Rs.4,10,000/- by two cheques. So, he could have filed statement of bank account showing such payment. But, same is also not filed.  It may be pertinent to point out that different other consumers have also filed the case against the present OP Company and in all the cases, the money receipt has been filed showing the payment of the amount as claimed by the respective consumers. The money receipt is issued by the OP Company on receipt of the said booking amount as alleged. But it is strange that in this case barring the declaration by the Complainant, there is no other document filed by the Complainant that such amount was paid. So, as the declaration relied upon by the Complainant is not a sufficient document to establish the claim of payment of Rs.4,10,000/-, the claim of the Complainant to refund the said amount cannot be allowed. It is true that the case has been proceeded ex-parte against OPs but it is a settled principle of law that the party seeking the relief and making the allegation has to prove the same by cogent evidence. In this view of the matter, the Complainant is not entitled to the relief as prayed for and thus the complaint is liable to be dismissed.

`           These points are answered accordingly.

            Hence

                                 ordered

            CC/180/2017 is dismissed ex-parte against OP No.1 to 4.