This is an application u/s.12 of the C.P. Act, 1986.

          The complainant Mr. Bhutnath Mukhopadhyay by fling this complaint submitted that he was attracted by the widely published advertisement of OP developer and was influenced to book a flat of more or less 1170 sq. ft. super built area comprising of three bed rooms, one living room, one kitchen, one verandah/balcony and two toilets.  OP assured that after construction the flats would be ready for possession and handed over to the intended purchasers within the stipulated period to be mentioned in the sale agreement be mentioned in the sale agreement.  The OP developer stressed on this paint that that the flat would be made habitable within prescribed time.

          The complainant booked a flat at the third floor of the aforesaid project of the OP in good faith but in spite of repeated requests and several reminders the OP neglected and failed to provide details of the said project.  But at the beginning the developer informed through an extensive advertisement that they are going to construct flats with several infrastructural facility.

          However, it was said that the aforesaid flat would be available at a total consideration of Rs.17,00,000/- out of which the complainant paid a sum of Rs.8,50,000/- only to the OP as aw booking money of the said flat.  The amount was duly acknowledged by the OP.  In this regard an agreement was made between the purchaser and the OP developer on 13^th August, 2009.  In this said agreement OP premised that the possession of the flat would be handed over to the complainant on or before 7^th November, 2009.

          Since inception, the project ran at slow pace and that he is not going to get flats within stipulated period and the complainant failed to get the same on or before 07-11-2009.

          The OP developer did little for obtaining completion certificate.  Time was passing, the complainant got impatient.  The complainant requested for delivery of possession at an earliest date.  The complainant also wrote several letters to the OP, but OP did not give any importance to answer for obvious reasons best known to him.     

          The complainant wrote the OP developer on 06-11-2008 just one day  prior to the stipulated date of handing over flat, but the OP expressed his inability to hand over the possession of flats citing the cause of non-availability of completion certificate.

          Almost after a month, the complainant wanted to know the exact date of the registration of the subject flat, through the advocate’s letter.  The OP answered his letter after two months and twenty three days, i.e. on 26-02-2010.  The answer was same.  He cited the reason of non-availability of the completion certificate from Kolkata Municipal Corporation.

          Getting no response from the OP developer the complainant sent another advocate’s letter 18-05-2010.  The letter was received by one of his associates named Mr. Asit Dey.

          After repeated correspondence, it was clear to the complainant that there is very little chance of getting the flat.  It was evident from the negligent behaviour of the OP developer.  At this juncture, the complainant demanded the consideration money of Rs.6,50,000/-.  OP refunded Rs.1 lakh through his representative, one Mr. Asit Dey.  He sent a cheque of ICICI Bank, being cheque no.885100 dated 25-08-2013.  But the cheque was dishonoured by the bank.  The complainant lodged a complaint at Metropolitan Magistrate Court against the fraud practice of the developer.

          When the developer’s fraud practice was known to the complainant, the developer tried to deny the legitimate claim of the complainant over that flat.  The OP developer did not pay heed to the complainant’s request.  The OP was no longer interested to refund the booki9ng money, given in advance by the petitioner.  The complainant also informed the OP that he would knock the door of the Forum, but without result.

          The complainant’s mother, Mrs. Shefalika Mukherjee had an expectation of residing at the said flat, but the cherished hope of having a sweet home is frustrated and she expired on 24-02-2010.  The complainant also developed cardiac problems due to mental agony of losing money.

          The complainant prays for suitable direction by the Ld. Forum so that the entire booking money of Rs.6,50,000/- only be refunded with up to date interest at the bank rates.  The petitioner wants compensation for causing damage, harassment and mental agony to the complainant.  The complainant demands one lakh as compensation and Rs.2,00,000/- for causing mental agony to the complainant. 

          The complainant also wanted to purchase the same flat measuring more or less 1170 sq. ft. having three toilets by giving the balance amount of consideration money.  Provided, the OP would have to complete all the formalities in respect of registration and cc must be submitted the complainant. 

          In this case, notice of the complainant was sent to the OP.  But OP was found absent during all the proceedings.  Complainant was also absent for several times.  But OP did not turn up for a single time.  Notices were sent to the OP but the letters are returned with postal endorsement “Addressee cannot be located.  On 27^th February, 2013, complainant was permitted to make newspaper publication and the complainant sent notice to the OP through newspaper named Sambad Pratidin dated 21^st March, 2014 under notice column.  But the complainant did not turn up.  He did not contact either with the Forum or with the complainant.  Then complainant filed e-chief.  But the OP developer neither filed written version nor filed e chief or any other document.  So, the case was fixed for ex parte hearing.  On the date of hearing OP was found absent OP is found reluctant to take step so the case was heard finally.  OP was found absent on call so the argument was heard finally and we proceeded for judgment.

Decision with Reasons

N doubt in this case, every chance was given to the OP from 02-08-2013 to 09-07-2014 to file written version or to power or Evidence in Chief and to contest the case but OP did not turn up but truth is that the entire copy of the complaint and documents relating to the complaint were sent to Sri Dipak Mitra, the OP developer vide receipt No.EW357198502IN but addressee was found absent on 21^st September, 2013.  Afterwards the OP could not be located, consequently OP did not turn up.  So, we must have to rely upon the documents and materials, evidence as produced by the complainant.  Fact remains that the complainant paid a sum of Rs.6,50,000/- to the OP developer Mr. Dipak Mitra for purchasing the said flat as described in the booking agreement to sale out of consideration money Rs.17 lakhs.  The flat is measuring more or less 1170 sq. ft. super-built up area.  From the agreement dated 13-08-2009 produced by the complainant it is clear that the complainant already paid Rs.6,50,000/- as earnest money and the OP developer Mr. Dipak Mitra had received the amount in cash there was a clause in the agreement that the subject flat would be handed over available to the complainant within three months from the date of the execution of the agreement subject to receipt of the balance amount of consideration money.  The complainant would have to pay Rs.10,50,000/- and he would get the flat.  But peculiar factor is that the OP did not pay any heed to complete that project, though complainant sent a letter to the OP on 06-11-2009 stating the details of the pending work of his flat.  On receipt of the said letter the OP informed the complainant on 10-11-2009 that the pending work would be completed within next thirty days.  Most surprising factor is that the OP mentioned that even after completion of those pending work he is not in a position to handover the flats and also other flat, because he is yet to get the completion certificate because about getting KMC’s green signal is beyond his control.  But at the time of agreement, he informed that every step of the agreement will be followed properly.  After getting this letter from the OP developer, the complainant got bewildered.  He began to think over his money already spent.  He became frightened that his hard earned money would be lost and he wan’t get anything.  On 03-12-2009, the complainant sent another letter to the OP developer Mr. Dipak Mitra, the owner of the proprietorship firm M/s. Mecano.  In this letter the complainant’s lawyer wanted to know the exact date of registration because by that time the complainant lost all fair in the OP.  He was in a state of mental agony because OP’s acts were illegal, arbitrary.  He failed to hand over the flat to his client Mr. Bhutnath Mukhopadhyay.  Again on 26-02-2010 Mr. Mukhopadhyay was informed that that flats are almost ready.  But work of CESC, drainage and sewerage connections were awaiting for completion.  All these activities simply prove the OP’s mala fide intention not to hand over flat etc.  Had he given all the charges, the KMC and CESC would not delay in doing their activities.  The OP did not cooperate with the complainant.  On the contrary, he want to deceive the complainant.  OP does not think that it is his duty to execute the agreement.  OP’s negligent behaviour proves that he is reluctant to complete the project.  Then it is the duty of the OP to refund the booking money of Rs.6,50,000/- OP’s reluctant attitude proves that he is not willing to refund the same.  It is no doubt a fraud practice, unfair trade practice as adopted by the OP developer.  Invariably the OP developer constructed some illegal construction for which he is not getting the cc and eventually there was no hope of getting the cc.

          The complainant’s mother died on 24-02-2010.  The very cherished dream of residing at that flat was shattered.  The complainant suffered cardiac trouble and was admitted to Capitol Nursing Home and AMRI Hospital, Salt Lake.  He could not bear the trauma of losing his money.  He had to undergo strict medication.  On 18^th May, 2010 the complainant sent another letter.  The letter was received by his representatives.  The complainant’s lawyer wanted to know as to when he is going to refund the booking money because it was evident from the activities of the OP that he is not in a position to hand over the flat.  But now the complainant will find himself on street.  He has sold his residential house for the assurance given by the OP, Mr. Dipak Mitra.  The complainant has taken considerable time from his purchaser.  But there is no hope of completion of flats and handing over the same to the complainant.  The complainant has already given Rs.6,50,000/- to the OP.  Right now he is not in a position to book another flat.  He has booked the flat in the year 2009 within five years but the price of the flat is escalating at high rate.  So, the OP developer must give compensation along with the booking money.  At that time the price of a three-roomed flat was Rs.17 lakhs.  But it has increased at about 3 times of the previous rate.  So, in the eye of law the complainant is entitled to get back the booking amount along with compensation.  When the complainant realizes that there is little hope of getting back the amount and the flat he became merely shocked and was hospitalized.  On the other hand, the OP is enjoying the money by investing in own business.  The complainant got nothing as the OP has adopted unfair trade practice.  The OP developer has to pay for the complainant’s mental agony.  There is no chance of getting a new flat.  No doubt total conduct of the OP simply proves that OP has no intention to perform his part performance and sell the same to the third party at high rate by deceiving the complainant for which same lame excuses are being shown by the OP but truth is that OP has not complied the terms of agreement and has adopted an unfair practice to deceive the complainant.

          In view of the above facts, the complainant is entitled to get relief and redressal as prayed for against the OP.    

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed with a cost of Rs.10,000/- against OP Mr. Dipak Mitra, the developer.

          OP is hereby directed to pay and refund a sum of Rs.6,50,000/- to the complainant.  For deceiving the complainant to get a flat and for adopting unfair trade practice and causing mental pain and agony and also for losing huge amount of interest over the said amount, OP is further directed to pay a sum of Rs.3 lakhs as compensation to the complainant within one month from the date of this order.

          For adopting unfair trade practice by the OP again and again and for deceiving the intending purchaser in such a fashion and also to control such practice of unfair trade practice and unmerchantable attitude OP is imposed punitive damage of Rs.1 lakh for adopting unfair trade practice and same shall be deposited to this Forum within one month, failing which @Rs.400/- per day will be imposed penal interest till full realization of the decree.  Even the penal proceeding shall be started for disobeyance and non-compliance of the Forum’s order u/s.27 of the C.P. Act and for that further penalty and fine may be imposed.