Date of Filing: 24.04.2017 Date of Final Order: 14.09.2017
Runa Ganguly, Member.
This is a complaint U/S 12 of the C.P. Act 1986 filed by the Complainant. The fact of this case in brief is that the Complainant intended to purchase one flat convinced by the advertisement of the O.Ps. made contact with the O.Ps. at Cooch Behar office in the month of January 2015, for booking the flat measuring 1032 sqr. ft. An oral agreement has been made between the parties for purchasing the said flat as such the Complainant deposited booking amount of Rs. 1,00000/- in cash on 12.02.2015. The total price of the said flat was of Rs. 22,70,000/-. After receiving the said amount the O.Ps assured the Complainant that they would make a written agreement within 15 days and issued a money receipt in favour of the Complainant. The Complainant made further contact to the O.Ps. for collecting sale agreement after elapsing stipulated period of 15 days but the O.Ps failed to give any written agreement as per their promise. Thereafter, the Complainant requested so many times to the O.Ps. for collecting the said agreement but to no good. In the month of November 2016, the Complainant contacted the O.Ps. over telephone and then the O.Ps. assured him to return back the advance amount of Rs. 1,00,000/- within a short period but they failed to keep their promise. This is nothing but deficiency in service of the O.Ps for which the Complainant suferred mental pain and agony with pecuniary loss. Thus, he filed the present case before this Forum seeking redress and reliefs as incorporated in the prayer portion of the complaint.
In the present case the summons upon O.Ps has been sent but the notices have been returned unserved with a note of postal peon ‘’Unclaimed”. Thus, the Forum hold that the notices have been duly served and the case proceeded with Ex-parte against the O.Ps.
The following points are taken into consideration to reach a just decission.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service by not refunding the advance amount to the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, perused the entire documents in the record also heard the Ex-parte argument.Peruse also the Evidence on Affidavit of the Complainant and W/Ar.
Point No.1.
In the case in hand the Complainant with a desire to purchase a flat oferred by the O.Ps deposited a sum of Rs. 1,00,000/- as booking amount to the O.Ps. The O.Ps issued a money receipt in favour of the Complainant. The Complainant hired services from the O.Ps. against certain payment of consideration. Thus, we have no hesitation to hoid that the Complainant a consumer of the O.Ps.
Point No.2.
The both O.Ps are the inhabitant of this district and the complaint value is far less than the prescribed limit for which this Forum has pecuniary as well as territorial jurisdiction to try the case.
Point No.3 & 4.
Both points are taken up together for convenience of discussion and brevity.
Undisputedly, the Complainant entered into an oral agreement with the O.Ps for purchasing a flat measuring 1032 sqr. ft. of Rs. 22,70,000/-.
It is also not in dispute that the Complainant deposited Rs. 1,00,000/- to the O.Ps as booking amount of the said flat.
The point of the dispute is that the O.Ps failed to keep their promise. Neither they executed sale agreement for arrangement of the flat nor they return the booking amount to the Complainant even after several requrests made by the Complainant.
Annexure ‘’1’’ goes to show that the O.Ps received Rs. 1,00,000/- as booking amount of flat of kanta Apartment on 12.02.2015. The Complainant in his complaint petition as well as in Evidence on affidavit stated that no sale agreement has been executed by the O.Ps as per their promise, also the O.Ps. did not refund the booking amount to the Complainant.
Besides, the O.Ps did not turn up before this Forum despite servicing the notice. Thus, it is reasonably be presume that the O.Ps have nothing to say against the allegation made by the Complainant. Thus, the facts of the case remain unchallenged.
The document made available in the record goes to show that the O.Ps received some amount with an assurance to render service. He failed to render proper service as such the O.Ps. have no reason to withhold the amount of the complainant in their custody.
In the light of the foregoing discussion it is crystal clear that the act and conduct of the O.Ps in this case is certainly be termed as deficiency in service for which the complainant must be compensated.
Thus, the complaint succeeds by unchallenged testimonies.
Hence,
it is Ordered,
That the case No. CC/50/2017 be and the same is allowed in Ex-parte against the O.Ps with cost of Rs. 5000/-.
The O.Ps are hereby directed to refund the booking amount of Rs.1,00,000/- with interest @8% p.a. from 12.02.2015 till the date of payment. The Complainant also do get an award Rs. 10,000/- as compensation for his mental pain and agony.
The O.Ps are further directed to make payment the aforesaid amount with litigation cost within 45 days jointly and / or severally failing of which the O.Ps. shall have to pay Rs.50/- for each day’s delay and the amount to be accumulated shall be deposited in the “Consumer Legal Aid Account”.
Let plain copy of this Final Order be supplied, free of cost, to the concerned parties/Ld. Advocate by hand/be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
