Ld. Advocate(s)
For Complainant: Pradip Banerjee
For OP/OPs : Debraj Mallick
Date of filing of the case :25.02.2022
Date of Disposal of the case :21.03.2024
Final Order / Judgment dtd.21.03.2024
The concise of the case of the complainant is that the complainant Mr Utpal Nandi and Mrs Tanushree Nandi being attracted by the advertisement published in Ananda Bazar Patrika Dtd. 22.03.2014 with caption “Sanhita” wanted to purchase one flat. Complainant won lottery of the said Flat NO. IC 1st Floor Block 2B/13 in Project Sanhita. They entered into the sell agreement on 07.08.2015 and also confirmation letter given to the complainant by the OP Simoco Systems and Infrastructure Solutions Limited vide letter dtd. 06.12.2014.
Complainant paid Rs.5,96,944/- on 08.04.2016, Rs.1,64,366/- on 26.04.2016, Rs.1,64,366 on 29.06.2017 and Rs.1,80,346/- on 10.10.2017 and Rs. 1,61,532/- on 29.12.2017 and Rs.1,60,194/- on 07.04.2020 through cheque. The said receipt acknowledgment by the OP.
Complainant paid total Rs.14,27,741/- out of Rs.14,41,890/- but the OP failed to hand over the scheduled Flat as per the agreement for sale dtd. 07.08.2015.
Despite several demand the OP did not hand over the scheduled Flat to the complainant. So the complainant sent the legal notice to the OP to hand over the Flat to the complainant on 24.01.2022 which the OP received on 27.01.2022 but they did not take any positive steps, so the present case is filed.
The aforesaid demeanour of the OP caused deficiency in service. The complainant therefore, prayed for compensation for Rs.30,00,000/- for mental pain and agony and Rs. 14,27,748 together with interest @ 8 % per annum towards the return of the advance money or hand over the Flat no. 1C, Floor 1st , Block-2B/13 and other relief as per prayer of the complainant.
The Ops contested the case. OP denied each and every allegation of the complaint.
The positive defence case of the OP in brief is that the complainant is hiding the clause 4 (a) of the agreement. There is another clause subject to force major which was intentionally over looked by the complainant. The said clause is entered under article 8 of the agreement dtd. 07.08.2015. Due to demonetisation in 2016 and thereafter, in 2019 Covid-19 pandemic situation there was delay in progress of the work along with other disasters like Amphan and Bulbul etc. There was an arbitration clause in the said agreement under article 12 wherein it is mentioned that all disputes or differences arising out of this agreement shall be mutually discussed and settled between the parties but the complainant disobeyed the said provision.
As per the said agreement any dispute which cannot be amicably settled shall be finally decided and resolved by arbitration as per the provision of arbitration and Conciliation Act. The complainant failed to follow the provisions of article 7 of the said agreement and framed a frivolous claim which should be rejected so there is no deficiency in services.
OP claimed that the present case should be rejected with heavy cost of Rs. 10,00,000/-
The conflicting pleading of the parties let this Commission to ascertain the following points for proper adjudication of this case.
Points for Determination
Point No.1.
Whether the present case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
The present points is relates to the questions as to whether the case is maintainable or not.
The Ops challenged the case as not maintainable on the ground that it is barred the specific provision of the agreement under which it is clearly mentioned that in case of any dispute the same should be referred to the arbitrator as per article 12 of the said agreement.
Let us have a look into the clause 12 of the said agreement.
The complainant filed the said agreement as the list of documents.
As per Annexure 2 being the agreement between the parties dtd. 07.08.2015. Clause 12 relates to arbitration wherein it is provided inter alia that disputes or differences arising out of the transaction which cannot be amicably settled shall be finally decided and resolved by arbitration as per the provision of arbitration and Conciliation Act 1996.
It is fact that there is arbitration clause but in case of any dispute the parties or either of the parties should invoke the arbitration and that should be informed to the other parties. In the instant case there is no document to show that the OPs invited arbitration for the said dispute or ever informed to the complainant that the dispute should be referred to the arbitrator.
Ld. Adv. for the complainant argued that despite having the said arbitration clause in the agreement, it is not condition precedent. In this regard he referred to some case laws in a case report in Vol -I (2007) CPJ 319 it was held by U.T.C.D.R.C, Puducherry it was held that existence of arbitration clause regarding the dispute does not oust the jurisdiction of Consumer Forum.
The said case law is relied on.
Ld. Adv for the complainant referred to another decision reported in Vol-I (2008) CPJ 214 (NC) that hire purchase agreement; additional remedy provided under C.P.A; Jurisdiction of Fora not ousted by arbitration clause in agreement.
The said case law is relied on.
In another decision reported in Vol-III 2005 CPJ 703 O.S.C.D.R.C ,Cuttack referred by the Ld. Adv for the complainant held that the jurisdiction; arbitration of dispute; existence of alternative remedy does not oust jurisdiction of Forum constituted under the Act.
By relying upon all the aforesaid decision the Commission is of the view that despite having the arbitration clause in the agreement between the complainant and the OPs, it does not oust the jurisdiction of this Commission to entertain the case.
Accordingly, the case is not barred by the said provision of the agreement between the parties.
Consequently it is held that the present case is maintainable in law and in it’s present form.
Accordingly, Point no. 1 is answered in affirmative in favour of the complainant.
Point No.2 and 3
Both the points are very closely interlinked with each other as such these points are taken up together for brevity and convenience of discussion.
In order to ascertain as to whether the complainant is entitled to get the relief or not. Let us look into the pleading and the evidence in the case record.
Complainant in order to substantiate the case adduced both the oral evidence in the form of affidavit-in-chief and by proving certain documents as under.
Complainant proves the following documents through evidence.
Annexure : A is the News Paper publication by Ananda Bazar Patrika dtd. 22.03.2014 under the heading Sanhita for sale of dispute Flats.
Annexure: B is the legal notice issued by Ld. Adv. Prodip Banerjee to OP Simco System & Infrastructure Solution Limited dtd. 24.01.2022.
Annexure: C is one copy of cheque of SBI dtd. 07.04.2020 for Rs. 1,60,194/- paid by the complainant to the OP.
Annexure: D is the tax invoice dtd. 08.04.2016 for Rs. 5,96,944/- issued by the OP to the complainant towards the receipt of payment another receipt for Rs.1,64,366/- was also issued by the OP to the complainant on 26.04.2016. another receipt dtd. 29.06.2017 towards receipt of Rs.1,64,366/- issued by the OP to the complainant. another cheque is proved for Rs. 1,80,346/- dtd. 10.10.2017 made by the complainant to the OP through UCO Bank cheque. Another receipt dtd. 29.12.2017 issued by the OP to the complaint for Rs. 1,61,532/- also proved by the complainant. A Provisional money receipt dtd. 19.03.2020 is also issued by the OP to the complainant for Rs. 1,60,194/- thus the complainant through document claimed that he paid Rs.14,27,748/- to the OP. There is nothing in the defence case that the complainant did not make the payment for purchasing the suit flat.
In the legal notice complainant claimed that they paid total Rs. 14,27,748/- to the OP out of Rs. 14,41,890/- but the OP could not deny that the complainant did not pay the said money. There is nothing within the four corners of the case record that the OP handed over the said disputed Flat to the complainant as per the agreement.
Complainant himself deposed as PW1. The evidence of complainant stands corroborated by another witnesses PW 2 Mohitosh Biswas wherein he stated that his wife Krishna Sarkar Biswas has been allotted one Flat by the OP on the basis of his application but no construction of the Flat has been started.
Ld. Senior Adv for the complainant argued that as per section 3 of C.P.Act the complainant has every right to file the complaint before this Commission.
Thus having assist the evidence in the case record it is established that the complainant paid Rs.14,27,748/- to the OP for the scheduled Flat but the OPs despite receiving the said money did not hand over the said Flat to the complainant. So it is evident that Ops have acted in the manner with the complainant which tantamounts to unfair trade practice and deficiency in service which should be compensated in terms of money.
In the backdrop of the aforesaid analysis of evidence and observations made here in above the Commission came to the finding that the complainant successfully proved the case up to the hilt.
Consequently, Point no. 2 and 3 are answered in affirmative and decided in favour of the complainant,
Accordingly, complainant cases succeed on contest with cost.
Hence,
It is
Ordered
that the complaint case no.CC/22/2022 be and the same is allowed on contest against the OP with cost of Rs.1,00,000/-( (Rupees One lakh)). The complainant do get an award with the direction to the OPs to hand over the Flat No. IC, 1st Floor Block 2B/13 (scheduled Property) within one month from the date of passing final order failing which the OP shall return Rs.14,27,748/- (Rupees fourteen lakh twenty seven thousand seven hundred forty eight ) together with interest @ 12 % per annum from the date of payment made till the date of realisation, Rs. 1,00,000/- ( Rupees One lakh) towards mental pain and agony for unfair trade practices and harassment and Rs 50,000/-( fifty thousand) towards litigation cost failing which the entire award money shall carry interest of @12 % per annum.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ..........................................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
