Judgment : Dt.18.1.2018
Shri S. K. Verma, President.
This is a complaint made by one Mohammad Ataullah Ansari, son of Mohammad Islamuddin Ansari, residing at Shree Bardhan Pally, Thakurpukur, Joka, P.S.-Thakurpukur, Kolkata against Shribhumi Realty Pvt. Ltd., having its registered Office at 50, A.J.C. Bose Road, Thakurpukur, P.S.-Thakurpukur, Kolkata-700 063, and Corporate Office at 127C/6, James Long Sarani, Kolkata-700 008, OP No.1, Mr. Gopal Malakar, Director of Sribhumi Realty Pvt. Ltd., residing at 300, Parnasree Pally, Aratrika Apartment, 1st floor, Behala, PIN-700 060, OP No.2, Mr. Soumitra Roy, Director of Shribhumi Realty Pvt. Ltd., residing at Saryen Park, Joka-2, Thakurpukur, Kolkata-700 104, OP No.3, Mr. Biswabrata Maity, Director of Sribhumi Realty Pvt. Ltd., residing at Manik Bandopadhyay Sarani, Bally, Dist.- Howrah, PIN-711 227, OP No.4, Mr. Sagar Ganguly, residing at 53/A, Dr. N. N. Bagchi Road, Barrackpore, Nona Chandan Pukur, Titagarh, PIN-700 120, OP No.5 and Mr. Samit Dutta, residing at Madhya Gobindapur, Biswaspara, P.O.-Dakshin Gobindapur, Langalberiya, Sonarpur, Dist.-South 24 Parganas, PIN-700 145, OP No.6, praying for an order directing the O.P.s jointly and severally to return Rs.2,79,000/- towards the booking amount paid to the OP No.1 by the petitioner along with an interest @ 10% for 41 months which amounts to Rs.95,325/- and an order directing the OP to pay Rs.1,00,000/- as compensation to the petitioner for causing mental harassment and agony and also for deficiency in service and negligence and an order directing the OP to pay Rs.20,000/- for legal expenses and other incidental costs.
Facts in brief are that Complainant is one of the customers who being interested in the project, namely ‘Shribhumi’ having its project site at Mouza- Sankhripota, P.S.- Maheshtala, South 24-Parganas. OP No.1 is a Real Estate Company which performs buying, selling, renting an operation of self-owned or leased real estate such as apartment building and dwellings, etc. The office of the OP No.1 is within the jurisdiction of this Forum. OP No.2 to 6 are the present directors and/or the former director of the OP No.1. Complainant states that through an advertisement published in the internet advertising agencies like 99 acres.com and magic bricks.com Complainant became aware of the aforesaid project and got interested in the same and accordingly the said representative forwarded all the details to the Complainant. Complainant was also provided with a brochure of the said project and then found that the project consisted of five wings of buildings and were divided in three kinds of flat structures being LIG, MIG and HIG group. Complainant has further stated that representatives of the said company advised the Complainant to book under the LIG category. Complainant paid a sum of Rs.1,00,000/- by cash and Rs.1,79,000/- through cheque No.680373 for confirmation of the booking of the flat under LIG as per the promise of the OP. Thereafter Complainant received two money receipts No.463 dt.25.11.13 and 029 dt.10.3.2014 issued by the OP. Complainant has further stated that OPs not only miserably failed to live up to the promise made but also have engaged in fraudulent trade practice. Complainant on many occasions approached the OP claiming the refund of the booking money. But, OPs did not oblige him. OPs did not take interest in completing the project and so, Complainant filed this case, praying for refund of the booking money.
Notices were served to all OPs. The OPs did not appear by filing written version and contest the case and so the matter was heard ex-parte.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion, it appears that Complainant has prayed for an order directing the OPs to return Rs.2,79,000/- the booking amount paid to OP No.1, along with interest of 10% for 41 months to the tune of Rs.95,325/-. In this regard, the original receipts are filed by Complainant showing that Shribhumi Realty Pvt. Ltd. issued two money receipts No.029 and No.463 dt.10.3.2014 and 25.11.2013 which reveal that Shribhumi Realty Pvt. Ltd. has received Rs.1,79,000/- and 1,00,000/- respectively as per the said receipts. That means there is no doubt that Shribhumi Realty Pvt. Ltd. has received Rs.2,79,000/- from the Complainant. Since the allegations remained unchallenged and due to non-appearance of OPs it can be accepted that Complainant paid Rs.2,79,000/- as booking money to the OPs.
Now, the question arises as to whether Complainant is entitled to refund of Rs.2,79,000/- with 10% interest for 41 months amounting to Rs.95,325/-. In this regard, it appears that Complainant paid the money lastly in 2014 and has filed this case after a lapse of three years. In between this there is no mentioned save and except that he made the approach to the OP for refund of the money. He issued a legal notice on 21.8.2017 that means before some days of filing of this complaint. So, it is clear that Complaint himself also not remained diligent. Complainant has not stated that when he knew about the position of the project as it is lying today. However, since Complainant has paid money, he is entitled to get refund after deduction of 10%. It is because any real estate company makes expenses in keeping the money and maintaining it.
Complainant has also prayed for compensation and for litigation cost.
Considering the circumstances, we do not find any ground to allow the compensation or litigation cost. Because, the failure is also of the Complainant who has in filing this complaint made several discrepancies.
Interim order is not passed with the judgment because such order is meant for preventing any mischief by any party during the proceeding of the case so that multiplicity of proceeding may take place.
Hence,
ordered
CC/608/2017 and the same is allowed ex-parte in part. OPs are directed to pay Rs.2,51,100/- to the Complainant within three months of this order, in default, this amount shall carry interest of 10% from the date of order till realization. The liabilities of OPs are joint and several.
