The case of the complainant is that the respondents are the developer of a multistoried building under Mirgala Mouza, J.L.No.102, under R.S. Plot no. 83, under R.S. Khatian No.50&54, L.R. Khatian No.3760. The  respondent enter into an agreement with the complainant on 11.08.2014 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 being flat No.A4 on the first floor measuring 700sq ft. But the respondent failed to maintain the clause no.9 where it was clearly mentioned that the transaction be completed within 12 months from the date of that agreement on 11.08.2014. Due to that reason the flat booking money of Rs.400,000/- paid by the complainant to the developers should be returned to the complainant. That for last 2 years by repeated requests the respondents did not return the booking amount to the complainant and lastly complainant send an advocate letter dated on 14.05.2017 to the respondent to return the booking money of Rs.4,00,000/- only but the respondent paid no hid. The developers got advance money of Rs.4 lacs by cash and 2 lacs during the agreement through cheque of SBI, Alambazar Branch. The husband of the complainant also lodged a complaint before concerned police station against the developers but of no action. Then she filed the instant complainant before this Forum praying for a direction upon the opposite party to return money amounting to Rs.400,000/- along with interest, Rs.50,000/- for harassment and mental agony and litigation cost as this Forum deems fit & proper.

 The opposite party filed written version denying the allegations leveled against them and averred that the complainant paid a sum of Rs.400,000/- at a number of installments but return of amount may be considered. It is also known by the complainant that construction of flat has already been completed and in the mean time the owner of the land filed writ petition against police administration, municipality including this respondents before the Hon’ble High court at Calcutta. And these respondents have been restrained by the Hon’ble court so they are not in a position to decorate the flat. Be that as it may this respondent is/ was always ready and willing to put the complainant into the flat of her choice so the return of the amount at this stage could not possible and the respondent will return the amount as soon as the above mentioned case be disposed of.   

The complainant filed evidence on affidavit in which she stated that an agreement between the parties took place on 11.08.2014 in respect of a flat mentioned in the B schedule of the complaint measuring 700 sq ft @ Rs.1400 per sq ft total amount fixed for Rs.980,000/- and the respondent/ OP received the Rs.400,000/- on different dates as per terms & conditions of the agreement. Then she contacted the OP for execution & registration of sale deed in their favour and/ or refund the said earnest money but the OP refused and neglected to take steps either refund or registration of the said flat in favour of her through the deed of sale.  The complainant is subject to victim of illegal acts and activities as well as negligent and deficient acts and activities of the OPs so the OPs are jointly or severally liable to compensate the complainant for causing unnecessary harassment, troubles, physical inconvenience and mental agony.

The sole OP failed to file evidence on affidavit & written notes of argument so the argument advanced by the advocate of the complainant heard ex-parte against the OP but the complainant filed written notes of argument.

 From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

1. Whether the Complainant Seema Das Mondal ‘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 her?

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 Seema Das Mondal 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 paid advance money to the OP with the intention to purchase a flat and the OP received the same and admitted in his written version, so this complainant being intending purchaser of the flat owned by the OP is entitled to get service from the OP.

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

   Both the complainant and opposite party are residents/carrying on business within the district of Hooghly and cause of action took place within the district. The complainants prayed for a direction upon OP to return back earnest money amounting to Rs.400,000/- along with interest @ 18% thereupon and also prayed Rs.50,000/-as compensation and litigation cost as this forum deems fit and proper, 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 situated in the first floor of the property over Mirgala Mouza, J.L.No.102, under R.S. Plot no. 83, 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 OP on 11.08.2014 for a total consideration money of Rs.980,000/- out of which OP received Rs.400,000/- as part payment.  It was agreed between the complainant and the OP that OP 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 OP 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 OP in his written version assailed that construction of flat has already been completed and in the mean time the owner of the land filed writ petition against police administration, municipality including this respondents before the Hon’ble High court at Calcutta. And these respondents have been restrained by the Hon’ble court so they are not in a position to decorate the flat. But there is no iota of evidence produced by the OP from which we can infer that the OP is restrained to complete his construction work by Hon’ble High Court, Calcutta. The payment of the complainant is not questionable and it is admitted by the OP in their written version so the prayer of the complainant is tenable in the eye of law. Opposite party also failed to show good gesture upon the consumer for which she 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 by adducing cogent document/evidence so the prayer of the complainant is 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 her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?

  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 but 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.144/2017 be and the same is allowed on contest 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.400,000/-along with interest @ 12% p.a. since the date of bulk payment  of Rs.2,00,000/-on 18.08.2014 till the payment within 45 days from the date of passing this order.

    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.100/- 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.