1. The brief facts of the case of the complainant are that the OP is the Managing Director of Baishnodevi Engineers and Consultancy Pvt. Ltd. which is engaged in construction of Flats at Bhubaneswar and was contacting intending parties personally and through its Directors for sale. Mr. Hruday Narayan Singh was one of the Directors of the OP and Mr. R.R. Kumar, a close friend of the complainant was in contact of Mr. Singh to purchase a flat in Sai Hemalata Project belongs to the OP at Bhubaneswar. When the complainant knew about the project from his friend, he wished to join in the project and visited the project on 03.1.15 with Mr. R.R. Kumar and Mr. H.N. Singh, one of the Directors of the Project. It is submitted that after being convinced with the terms and conditions explained before the complainant and his friend on different aspects of deal, the complainant booked Flat No.102 (2 BHK of 1200 Sqft.) and his friend booked Flat No.103 (3 BHK of 1600 Sqft.) both in 1st floor of Sai Hemalata Project at Patrapada, Bhubaneswar and gave advance of Rs.1.00 lac each to the OP in shape of Cheque on an agreed condition that the refund will be made without any deduction if the deal is not materialized due to any reason.
2. The complainant further submitted that the NALCO, the employer of the complainant insisted a list of documents for sanction of House Building Advance loan and the OP was requested to supply the required papers for sanction of loan to which the OP assured to send the documents on or before 10.01.2015 but in spite of repeated approach, the OP sent an incomplete set of documents on 25.01.15 for which the loan sanction process could not be started. The complainant submitted that as per assurance and commitments of OP and his Director, Mr. Singh, the complainant and his friend deposited the advance amount on 03.1.15 but the agreement papers could not be signed by the parties on that date as the terms of agreement were not in accordance with the terms and conditions agreed by the OP and his Director. On contact to the said Director, he did not pick up the phone but one Sri S. N. Das, who is also a Director, picked up the phone and informed the complainant that Mr. Singh is on sick leave. Further on 12.2.12 the complainant and his friend met Mr. Singh at his residence who disclosed that he has been removed from the organization of the Op and also further disclosed that their bookings have been shifted to the 2nd floor of the project. The OP and Mr. S. N. Das when came to Nalco Guest House, Bhubaneswar gave some misleading information to the complainant and his friend in a very rude manner. Hence the complainant and his friend in a joint letter dt.18.2.15 requested the OP to cancel the flats and sought refund of deposits. It is also further submitted that the OP started bargaining through its letters on different dates for 30% and then 20% deduction from the advance amount. In the meanwhile the Prime Mediator, Mr. Singh joined in the organization and after thorough discussion, the OP refunded Rs.1.00 lac to Mr. R.R. Kumar on 13.5.15 without any deduction but failed to refund the advance of the complainant in spite of several approaches. Thus alleging deficiency in service and unfair trade practice on the part of the OP, he filed this case praying the Forum to direct the OP to refund Rs.1.00 lac with interest @ 18% p.a. from 03.1.15 and to pay Rs.1, 30,000/- towards compensation and costs to the complainant.
2. The OP sent its reply by Posts challenging the territorial jurisdiction of this Forum to entertain this case and contended that the complainant is not the consumer of the OP. Denying the allegations of the complainant, th OP contended that the Cheque No.048146 dt.03.1.2015 of SBI, Damanjodi for Rs.1.00 lac which claims to be issued in favor of the OP by the complainant belongs to one Rajesh Ranjan Kumar and hence the complainant has not paid Rs.1.00 lac and not a consumer of the OP as claimed by him. The OP further contended that the said cheque has been issued in the name of Baishnodevi Engineers and Consultancy Pvt. Ltd. but the complainant has filed the present case in the name of Biranchi Narayan Mishra, Managing Director, Baishnodevi Engineers & Consultancy Pvt. Ltd. In his para wise reply, the OP contended that the OP has never explained any terms and conditions before the complainant regarding sale of Flat No.102 BHK, 1200 Sqft and has not agreed to refund the advance money without any deduction and the same allegation is created one. The OP also denied regarding contents of letter dt.18.2.15 of the complainant and Rajesh Ranjan Kumar for cancelation of allotment of Flat No.102 & 103 and refund of advance if any. Thus denying all other allegations of the complainant and denying any deficiency in service or unfair trade practice on its part, the OP prayed to dismiss the case of the complainant.
2. The complainant has filed a series of documents along with affidavit in support of his case. The complainant has also filed written objection to the counter of the OP. We have heard from the complainant through his A/R in absence of OP, as the OP after sending counter through posts remained absent in the proceeding all along.
3. In this case the OP has raised some preliminary issues such as the Forum has no territorial jurisdiction to entertain this case and the complainant is not a consumer of the OP as envisaged u/s.2 (1) (d) of CPA. Hence before going to the merits of this case, we are inclined to decide the preliminary issues as raised by the OP at the first instance. For testing the territorial jurisdiction of this Forum to entertain this case, it is seen that the OP is not residing or carrying on business or has a branch office within the territorial jurisdiction of this Forum in order to satisfy the provisions u/s.11 (2) (a) & (b) of CPA. Now it is to be seen whether any part of cause of action arose within territorial jurisdiction of this Forum as envisaged u/s.11 (2) (c).
4. We have carefully gone through the reply and counter reply of the parties and heard from the A/R for the complainant. It is seen that the Cheque bearing No.048146 dt.03.01.2015 of Rs.1.00 lac issued on behalf of the complainant by his friend R.R.Kumar in favour of the OP belongs to SBI, Damanjodi and the OP has collected the money through his bank from the SBI, Damanjodi itself. We wish to clarify here that in cheque, payment is made after presenting the cheque to the bank and the cheque is issued by the customer. Hence the OP has collected the money from SBI, Damanjodi which is within the territorial jurisdiction of this Forum. Further the OP has made several vital correspondences with the complainant in his Damanjodi address through Registered posts and Courier during course of their transactions regarding allotment and cancelation of flat in question which are available on record. Hence from the above facts and circumstances, we come to the conclusion that some part of cause of action has definitely arose at Damanjodi and as such this Forum has got its territorial jurisdiction to try over this case. This issue is decided in favour of the complainant.
5. Coming to the issue that whether the complainant is a consumer of the OP, it is seen from the correspondences that the OP has allotted Flat No.102, 2 BHK 1200 Sqft in Sai Hemalata Project at Bhubaneswar in favour of the complainant. Specifically the money receipt vide No.450 dt.03.01.2015 shows that the OP (Mr. Biranchi Narayan Mishra, Managing Dirctor) himself has received Rs.1.00 lac from the complainant and has signed the Money Receipt with his official seal. Hence the case against the OP is genuine. The OP has further raised objection that the said cheque belongs to Mr. R.R. Kumar and hence the complainant is not a consumer of OP. It is seen that against the said advance money in shape of cheque, the OP has issued money receipt in favour of the complainant. It is not a matter whoever has paid the money on behalf of the complainant but the OP has received payment from the complainant and has issued receipt accordingly. As the advance was received from the complainant as per money receipt No.450 dt.03.01.2015 and Flat No.102 2 BHK 1200 Sqft. allotted in his favour, it can be safely concluded that the complainant has paid the consideration amount and becomes a consumer of the OP.
6. While coming to the merits of the case, it is seen that the complainant has filed this case mainly to get refund of his advance money of Rs.1.00 lac after cancelation of deal between the parties. The contents of letter dt.18.02.2015 of the complainant are vital in this case. In that letter the complainant has requested the OP for cancelation of flat and refund of money. The complainant has stated in that letter that the OP assured to send all relevant documents to Nalco for sanction of HBA as per list but till 18.2.15 the OP has not sent the documents as desired by Nalco for which the complainant could not apply for loan. Secondly, the agreement papers were not in line with the terms and conditions agreed by Mr. H. N. Singh for which agreement could not be signed on 03.1.2015 and is pending for scrutiny of the OP. Thirdly, the prime contact person, Mr. H. N. Singh stopped contact with the complainant and lastly the OP and his Director was giving misleading information to the complainant. Due to the above reasons, the complainant has canceled booking on 18.2.2015.
7. In relply to the letter dt.18.2.15 of the complainant, the OP has sent an RPAD letter dt.01.03.2015 to the complainant stating that they do not hesitate to refund the booking amount subject to deduction of 30% to meet the expenses done for preparation of documents and other expenses and the OP has agreed to refund Rs.70, 000/- within 3 months and sought consent letter from the complainant to that effect. The OP in that letter did not say about the allegations of the complainant.
8. It is seen from the record that after receipt of token money from the complainant no agreement was signed between the parties as the draft agreement prepared on mutual consent of the parties is pending before the OP. No full-fledged document has been received by Nalco regarding the project for sanction of HBA in favour of the complainant. The complainant is also repeatedly grumbling about wrong information supplied by the OP and its Dirctor from time to time regarding such deal. If those things happen, that would definitely create loss of mutual trust between the parties. The agreement is an important and vital aspect of the deal and the same should be finalized soon after the token money is received by the OP. Further an employee without availing loan cannot purchase a flat. Hence required papers for sanction of HBA from the OP are necessarily important. Both the parties should scrupulously follow the principles what has been agreed between them. The complainant in his written argument stated that he sent the modified sale agreement to OP on 10.2.15 through email and met the OP at Bhubaneswar on 11.2.15 but the OP gave some misleading information and sale agreement could not be materialized for these and other reasons for which on 18.2.15 the complainant has canceled the booking.
9. We have careful gone through the record and found that due to the reasons supra the complainant has canceled the booking and sought refund of money. The OP has also accepted the cancelation proposal and agreed to refund the advance amount with 30% deduction and has communicated his decision to the complainant through RPAD letter. The complainant initially agreed for 20% deduction but after continuous follow up discussions between the parties, the OP has agreed to refund the full advance amount and accordingly on 13.5.2015 the OP has refunded the token money of Rs.1.00 lac to Mr. R. R. Kumar without any deduction but remained silent in case of the complainant. While summing up the facts and circumstances of the case, we found that due to latches on the part of the OP, the complainant was bound to cancel the deal and sought refund of deposit. The activities adapted by the OP in our opinion, amount to serious deficiency in service and unfair trade practice and after cancelation of deal, the OP ought to have refunded the deposit to the complainant. The complainant has also not demanded any interest on his money. As such the complainant is entitled to get refund of Rs.1.00 lac from the OP. We are not inclined to award any interest on the advance amount in the peculiar circumstances of the case. However, due to such inaction of the OP, the complainant must have suffered some mental agony and has filed this case incurring some expenditure for which he is entitled for some compensation and costs. Considering the sufferings of the complainant, we feel, a sum of Rs.5000/- towards compensation and Rs.2000/- towards cost of litigation in favour of the complainant will meet the ends of justice.
10. Hence ordered that the complaint petition is allowed in part and the OP is directed to refund Rs.1, 00, 000/- towards advance money and to pay Rs.5000/- towards compensation besides Rs.2000/- towards costs to the complainant within 30 days from the date of communication of this order failing which the advance amount of Rs.1.00 lac shall bear interest @ 12% p.a. from 03.01.2015 till payment.
(to dict.)
