The fact of the complainant in a nutshell is that being allured b y the alluring advertisement of the O.P. the complainant entered into an agreement with the O.P. for the sale of the flat No.G-2 measuring super build of area of about 760 sqft. in the ground floor of holding No.453/5, N.C. Banerjee Road, Baidyabati, P.S.- Serampore, Dist.-Hooghly. The agreement of sale was executed on 14.11.2014 with the O.P. and being the owner and developer the O.P. took the booking amount of Rs.2,00,000/- by a A/c. payee cheque dated 14.11.2017 drawn on Baidyabati, Seoraphuli Co-operative Bank being cheque No.109151 for the purchase of the said flat from the complainant. The complainant states that the agreement for sale is drafted by Lawyer of the O.P. and on good faith the complainant put his signature without getting any opportunity to go through the contents of the agreement. The complainant states that despite repeated request the O.P. did not serve the copy of the agreement previously. The complainant states that the complainant having the original deed of sale agreement as and when required the complainant can produce the same and the complainant further states that thus he became the consumer under the O.P. The complainant further alleged that it was also agreed by the complainant that she shall hand over the relevant documents in connection with the said flat including the mother deed, mutation certificate, sanctioned building plan, parcha, khajna etc. so that he could make a searching of the said property. Despite the repeated request of the complainant the O.P. deliberately neglected to hand over those documents. More over complainant states that there is no progress of construction and the building materials used were also very substandard and there is also serious deviation of building plan. Complainant alleges that he is a senior citizen and suffering from various diseases and his wife is also seriously ill. They have live alone and could not wait for long time and had to make for alternative accommodation as per situation. The complainant utters that despite repeated request and to return back his earnest money which the complainant paid to the O.P. But the O.P. did not return the said money amounting to Rs.2,00,000/-. The complainant visited the office of the O.P. and sent registered letter to the O.P. dated 16.8.2015, 5.10.2015, 17.11.2015 and lastly sent legal notice of the ld. Lawyer dated 27.2.2016 for refund of the said deposited amount but the O.P. did not redress the grievance of the complainant rather the husband of the O.P. threatening the complainant to kill him mercilessly. The complainant further alleges that the O.P. caused severe deficiency in service coupled with unfair trade practice and the complainant and his wife suffered from mental agony, anxiety and harassment for which the complainant should be compensated adequately. Having no other alternative the complainant has come before the Ld. Forum with a prayer direction upon the O.P. to refund the amount of Rs.200,000/- with 15% bank interest from the date of said payment to the complainant and also prays for compensation of Rs.2,00,000/- towards mental pain and agony and Rs.30,000/- toward litigation cost and other reliefs.
The O.P. contested the case by filing written version denying all the material allegations leveled against her. At the time of filing written version the O.P. also files a maintainability petition praying for rejection of the complaint petition and states that the complaint case is beyond the jurisdiction and barred by commercial court and commercial division and commercial appellate division of High Court’s Act, 2015 and or money suit otherwise O.P. will suffer irreparable loss and substantial injury. It appears from the petition dated 16.6.2016 that as per new law the District Judge and High Court shall have the same power to try and hear the matter. The Forum has no jurisdiction to hear and or adjudicate the matter.
Complainant in his petition of objection assailed that the Forum has jurisdiction to entertain the complaint case and as such the petition filed by the O.P. is liable to be reject3ed.
After perusing the complaint petition, the maintainability petition of O.P. and objection filed by the complainant we are in the opinion that the Forum has the jurisdiction to entertain the case as the cause of action arose within the territorial jurisdiction of this Forum and redressed prayed for within the pecuniary jurisdiction of Rs.20,00,000/- and the petition is rejected with the cost of Rs.2000/- for dragging the matter for prolonged period and the cost imposed is to be deposited in the Consumer Legal Aid Account.
In para-17 of the written version the O.P. states that she informed the complainant the fact of the completion of the flat severally and requested the complainant verbally to make arrangement to pay the balance consideration of Rs.12,44,000/- and Rs.52,000/- for installation and fixation of special quality of grill, collapsible gate, windows and doors as per instruction of the complainant but the complainant did not pay the same nor the complainant intimated the O.P. as and when the complainant pay the same and registered the flat and take delivery of possession. Thereafter the O.P. states that the complainant sent a letter to the O.P. through registered post is false and fabricated. After getting the Advocate’s letter of the complainant the O.P. sent a reply through her Ld. Advocate through registered post to the complainant on 12.3.2016 but after getting the letter the complainant kept mump till today.
O.P. states that thereafter she requested the complainant to inform the O.P. when the complainant will pay the balance consideration price along with the extra cost incurred by the O.P. for special requirement and if the complainant will not registered the flat within 15 days from the date of received the letter the O.P. will pay the advance amount after deduction 5% of the advance money and the O.P. will sale the said flat to any third party but the complainant kept mump till today. Thus the O.P. prays before the Forum to dismissed case with cost.
The complainant states that there is a gross negligence and deficiency in service on the part of the O.P. and O.P. did not fulfill the condition of contract. In this connection to prove this case the complainant has filed the affidavit of evidence, brief notes of argument. O.P. filed written version, original deed of agreement filed by the complainant and O.P. files reminder letter to the complainant.
It transpires from the record that during proceedings O.P. did not appear on 11.1.2017, 10.3.2017, 24.8.2017 and 17.11.2017 and no steps is taken on her behalf as the date is fixed for hearing of petition on maintainability point. So the petition is heard in absence of O.P. thereafter on 17.1.2018, 17.4.2018 and 26.6.2018 O.P. was absent and the ld. Forum was pleased to fix the case for exparte against the O.P.
From the above documents and the material is proved the case of the complainant and this has not been challenged by the O.P. The uncontested testimonial of complainant proves the case of the complainant. The case succeeds exparte. As such the complainant gets the relief as prayed for. There is nothing to disbelieve the case of the complainant. Hence, it is
Ordered
that the consumer case being No.36/2016 be and the same is allowed exparte.
The complainant to get the refund amount of Rs.2,00,000/- deposited by him with 15% bank interest from the date of payment till realization. The O.P. is also directed to pay Rs.30,000/- towards mental agony, anxiety, harassment, sufferings of the complainant caused by the O.P. by deficiency in service. The O.P. is also directed to pay litigation cost of Rs.10,000/- to the complainant. The O.P. is directed to comply the above order within 45 days from the date of this order i.d. Rs.50/- per day deposited by the O.P. and that should be deposited in the Consumer Legal Aid Account Fund.
Let the copies of this order be supplied to the parties free of cost.
