Presented by: -

                              Shri Debasish Bandyopadhyay, President.

The complainant has filed this complaint case against the O.p. for returning the advanced amount of Rs.4,26,420/- and also to pay compensation and litigation cost.  

Fact of this case

Complaint case : -

This case of the complainant which is deciphered from the complaint petition in bird’s eye view is that the complainant is a Government School teacher and was intending to purchase a residential flat and so she approached to the O.p. who is a developer and promoter and after discussion with him the complainant booked a residential flat which has been described in the schedule in the complaint petition at a total consideration money of Rs.18,92,380/- out of which the complainant has paid total amount of RS.4,26,420/- to the O.p. by virtue of cheque and cash and O.p. acknowledged the said payment by issuing money receipt. It is stated that after receiving the advanced booking money the O.p. (Developer/Promoter) had sent one mail on 28/05/2022 with draft copy of Agreement for Sale to the complainant for further proceeding but after going through the said draft copy of Agreement for Sale the complainant became surprised and noticed that many terms and conditions in the said draft copy defers absolutely from the discussion which at taken place at the time of making advanced payment. It is submitted that the complainant immediately contacted with the O.p. and requested him for changing the said conflicting terms and conditions of the Agreement for Sale but the O.p. (promoter) was not agreed to change the said terms and conditions and thereafter the complainant by sending whatsapp message and also by sending letter through email on 08/06/2022 requested to O.p. to cancel the proposal for purchasing the flat and booking and also for refunding the advanced amount and O.p. received the said letter and thereafter had sent one legal notice through Sandeep Shaw, Advocate to the complainant on 11/08/2022 and admitted the payment of advanced money and also agreed to return back the advanced booking money to the complainant after deducting 20% from the said advanced money. It is alleged that the complainant after receiving the said notice had given a reply through her Ld. Advocate on 17/10/2022 and again expressed her unwillingness to purchase the said flat and requested to O.p. to cancel the booking and to return back the advanced money without deducting amount. It is pointed out that after receiving the said notice O.p. had given a reply to the complainant and again reiterated over the issue of deducting 20% of the booking amount. It is further alleged that the dispute arising between complainant and O.p. is a consumer dispute within the meaning of Consumer Protection Act, 2019 and the complainant is a “consumer” under the O.p. It is also stated that the complainant has a good cause of action for filing this case and for that reason the complainant has instituted this case against the O.p. and prayed for returning the advanced money and also for payment of compensation and litigation cost.

Defense Case

The O.p. even after receiving the notice has not appeared for which this case has been heard ex-parte against the O.p. vide order no.4 dated 15/05/2023.

Points of consideration

On the basis of the pleadings of the parties, this District Commission for arriving at just and proper decisions in this case and/or for the interest of proper and complete adjudication of this case is going to adopt the following point for considerations:

             (i)    Is this case maintainable in its present form and in the eye of law?

(ii)     Has this District Commission territorial and pecuniary jurisdiction to try this case?

            (iii)   Whether the complainant is a consumer under the OP or not?

(iv)   Whether the complainant has any cause of action for institution of this complaint case against the OP or not?

(v)   Whether the complainant is entitled to get the direction for refunding the advanced money of Rs.4,26,420/- and to pay compensation and litigation cost or not?

 (vi)   To what other relief / reliefs is the complainant entitled to get from this case?

Evidence lying of this case record

The complainant in order to prove this case has filed evidence on affidavit in support of his point of contention. As the O.p. is not contesting this case and has not filed any w.v. and no interrogatories has been filed against the said evidence.

Argument  highlighted  by parties

In this complaint case the complainant has filed Brief Notes of Argument and in addition to the filing of B.N.A. the complainant side at the time of verbal argument lay emphasis on the oral and documentary evidence.

Decision with reason

The first 4 (four) points of consideration are related with the questions whether this case is maintainable in its present form and in the eye of law and whether this District Commission has jurisdiction to try this case or not and whether this complainant is a consumer in the eye of law or not and whether the complainant has cause of action for institution of this complaint case or not?  In this regard, this District Commission after going through the material of this case record finds that there is no dispute over the issue that suit property is situated at Belgachia area which is within the jurisdiction of Howrah District and O.p. is running his business within Howrah Town and thus it is crystal clear that this District Commission has its territorial jurisdiction to try this case. Moreover the claim of the complainant is far below than that of Rs.20,00,000/-. This factor is clearly reflecting that this District Commission has its pecuniary jurisdiction as well. After going through the materials of the case record, this District Commission finds that the complainant has paid advanced money to the O.p. for the purpose of purchasing the self content residential flat mentioned in the schedule and no Agreement for Sale was executed. This matter is clearly reflecting that the complainant is a consumer under the O.p. It is also evident from the evidence on record that the O.p. has neither delivered possession of the above noted flat nor refunded the advanced amount. This matter is clearly reflecting that the complainant has cause of action for filing this case.

All these factors are clearly reflecting that the complainant is a consumer under the OP and so the complainant has the right of institution of complaint case against the OP as is aggrieved against the activities of the O.p. Thus, all the above noted 4 points of considerations are decided in favour of the complainant.

The point of consideration no.5 is related with the question whether the complainant is entitled to get direction upon the O.p. for refunding advanced money of Rs.4,26,420/- and also entitled to get compensation and litigation cost or not? In this regard this District Commission has already observed that the complainant has paid advanced money to the O.p. but the O.p. has neither delivered possession of the said flat nor executed any Agreement for Sale as per instruction of the complainant. In this regard, it is important to note that the evidence which is given by the complainant remains unchallenged or uncontroverted as no interrogatories has been filed against the evidence of the complainant. There is no reason to disbelief the unchallenged and uncontroverted evidence of the complainant. Thus, it is crystal clear that the complainant has proved his case in respect of points of consideration nos.5 & 6.

Recapitulating the above noted discussion this District Commission is of the view that the complainant is entitled to get an award directing the O.p. for refunding the booking money/advanced money of Rs.4,26,420/- alongwith interest @9% per annum from the date of filing of this case and also entitled to get compensation of Rs.5,000/- and litigation cost of Rs.5,000/- from O.p.

In the result,

it is accordingly,

ORDERED

That this Complaint Case being No.346/2022 be and the same is allowed ex-parte but in part.

It is held that complainant is entitled to get an award directing the O.p. for refunding the booking money/advanced money of Rs.4,26,420/- alongwith interest @9% per annum from the date of filing of this case and also entitled to get compensation of Rs.5,000/- and litigation cost of Rs.5,000/- from O.p.

O.p. is directed to pay the said amount to the complainant within 45 days from the date of passing of this judgment.  Otherwise the complainant is given liberty to execute this award as per law.

The parties of this case are entitled to get a fresh copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of

The word file is drafted and corrected by me.

  (Debasish Bandyopadhyay)

              President

      D.C.D.R.C., Howrah