FINAL ORDER

Samaresh Kr. Mitra, Member.

 This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Ajit Kumar Roy.

The case of the complainant’s in short is that opposite parties are the developers of a multistoried building under Mouza Mirgala. The complainant entered into an agreement with the  opposite parties on 27.11.2015 and according to the terms and conditions of that agreement within one year the transfer of the said flat allocated in favour of the complainant/ intending purchaser i.e. Flat No.2B on the second floor measuring 700 Sq ft. out of developers allocation.

That the both opposite parties failed to maintain the clause No.9 where it was clearly mentioned that the transaction be completed within 12 months from the date of agreement dated 27.11.2015.  But according to same clause the developer failed to transfer the said flat in favour of the complainant.  Due to that reason the flat booking money of Rs.2,50,000/- paid by the complainant  to the developer should be returned to the complainant as there has been a breach of contract.

That for last two years the complainant repeatedly requested to the opposite parties to return back the booking money but opposite parties did not return the same.  At last the complainant sent a lawyer’s notice on 15.6.2016 to the opposite parties requesting them to return Rs.2,50,000/-. But there was no fruitful result. On 15.8.2016 the complainant went to the concerned police station and gave a written complaint against the developer but no action has been taken by the police.

Finding no other alternative the complainant has compelled to file this case before this Ld. Forum for relief with a direction upon the opposite parties to return back Rs.2,50,000/- to the complainant as booking money of the complainant, to pay Rs.2,50,000/- as interest, to pay Rs.50,000/- as compensation for mental pain and agony and to pay litigation cost to the complainant.

The complainant filed evidence on affidavit and written notes of argument which are taken consideration while passing final order.  

ISSUES / POINTS   FOR   CONSIDERATION

   1). Whether the Complainant Ajit Kumar Roy is a ‘Consumer’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Ajit Kumar Roy is a ‘Consumer’ of the opposite party?

From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the OP, as the complainant being the intending purchaser paid consideration money and for getting the schedule mentioned flat delivered & registered in his favour so he is entitled to get service from the opposite party as consumer.

(2). Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

  Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.5,50,000/- for return of advance money and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.  

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

The case of the complainant is that the complainant with the intention to purchase a flat measuring 700 sq ft. situated in the 2nd floor of Abn Abasan comprised in Mirgala Mouza, J.L.No. 102, under L.R. plot no.83, R.S plot No.75 & under R. S. Khatian No. 50&54, L.R. Khatian No.3760, P.S.-Dankuni, Dist.- Hooghly, have under gone an unregistered agreement with the opposite party on 27.11.2015 for a total consideration money of Rs.1000/ per sq ft out of which opposite party received Rs.250,000/- as  earnest  advance money as part payment. It was agreed between the complainant and the opposite party that opposite party would execute a sale deed in favour of the complainant within 12 months from the date of the agreement and after one month this agreement will be cancelled. The complainant waited for a prolonged period after the expiry of the time period of registration. But the opposite party failed to handover the impugned flat and could not register and execute the deed of registration till date as a result the complainant suffered loss. The opposite party despite receiving notice did not turn up so the proceeding runs ex-parte against the opposite party. Complainant filed evidence on affidavit & written notes of argument and argument heard ex parte on 24.06.2019 and fixed 3.7.2019 for passing final order. That on 25.06.2019 this forum received a petition on behalf of the opposite party through India Post to set aside the ex-parte order. Which is not tenable in the eye of law at that point. The complainant filed the xerox copies of money receipts of the opposite party and also filed the bank statement to corroborate that the earnest money has been received by the opposite party. It is pertinent to mention that the complainant came to know from the reliable sources that a case is pending before the Hon’ble High Court at Calcutta in between the landowner & the developer herein as such the complainant by serving advocate letter dated 15.06.2016 requested the opposite party to return and /or refund the earnest advance money of Rs.2,50,000/-  within 7 days from the date of service of notice as the complainant is no more desirous to purchase the said flat under development.  

 The payment of the complainant is not questionable as the complainant produced the Xerox copy of money receipt of opposite party and the agreement for sale dated  27.11.2015 depicts that the purchaser have paid a sum of Rs.2,25,000/- by cheque  and balance amount will be paid Rs.40,000/-per month before the registration. The complaint petition is unchallenged one. So this Forum relying upon the verified complainant petition, evidence on affidavit notarized and relying on the documents hold that the opposite party is deficient in providing service to this complainant. So the prayer of the complainant is tenable in the eye of law. Opposite party always tried to escape his liability and also failed to show good gesture upon the consumer for which he compelled to seek the recourse of this Forum alleging the deficiency of service and prayed reliefs as prayed in the prayer portion of the complaint petition.   

   Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non delivery of the impugned flat and also failed to refund the earnest money taken from the complainant by adducing cogent document/evidence so the prayer of the complainant is deserved to be allowed in part. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of delivery of flat through execution & registration  and also failed to return the earnest money taken from the complainanbut the opposite party is under liability to return back the advance money paid to the complainant along with interest.

ORDER

  Hence, ordered that the complaint case being No.216/2017 be and the same is allowed ex parte against the opposite party, with a litigation cost of Rs.8000/-.      

  The Opposite Party is directed to return back the advance money amounting to Rs.2,50,000/-along with interest @ 12% p.a. since the date of agreement on 27.11.2015 till the payment.

    All the payment are to be made within 45 days from the date of passing this order.

   At the event of failure to comply with the order  the Opposite Party  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

    Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.