Date of Filing : 18/01/2019.

Date of Judgement  : 28/11/2022

Mrs. Ashoka Guha Roy (Bera), Hon’ble Member

            The instant case arises when the Complainants filed a complaint U/S 12 of the Consumer Protection Act, 1986 (U/S 35 of the C. P. Act, 2019), herein after called the said Act, against the Opposite Parties for deficiency in service seeking relief. 

            The case of the complainants in short is that both the complainants, being teachers by profession approached the opposite party in the year 2013 for booking a flat in Teachers’ Tower which was proposed to be constructed by the  opposite parties at K.M.C. Premises no.33,  Upendra Biswas Sarani , Kamarpara, Kolkata- 700 032 vide application form serial no.1001 and at the time of booking the said flat, the complainants had paid earnest money to the tune of Rs. 5,00,000/- (Rupees five lakhs) only vide cheque no. 725270 dated 24.03.2013 drawn on Bank of India, Kashinagar branch amounting to Rs. 3,40,000/- and vide cheque no. 624993 dated 26.03.2013 drawn on the State Bank of India, Kakdwip branch amounting to Rs. 1,60,000/- which were duly encashed by the opposite parties in due course of time, after a considerable time of one and a half year having been elapsed since the date of booking as aforesaid , by which time the opposite parties were supposed to hand over possession of the complete flat to the complainants, the complainants , much to their surprise found that  most surreptitiously and with a malafide intention to defraud the complainants, causing unlawful loss to them, had  already sold the construction site to one M/s. R. K. Shelters of 18/3, Lotus Park, Kolkata-700 047, against valuable consideration vide a registered Deed of Conveyance being Deed No.00696/2014.

The  above incident came to the complainants as a bolt from the blue and the complainants immediately rushed to office of the Opposite parties and  upon confrontation the OP accepted their culpability and guilt and undertook to repay the earnest money paid to them by the complainants  along with the interest accrued thereupon which calculated to a total amount of Rs. 5,93,333/- (Rupees five lakhs ninety three thousand three hundred thirty three) only and after much adou issued two(2)  cheques bearing No. 095977, dt. 26.11.2015 drawn on the Axis Bank Ltd., Tollygunge branch  for Rs. 2,50,000/- ( Rupees Five lakhs ninety three thousand three hundred thirty three ) only and No. 095978, dt. 30.11.2015 drawn on the Axis Bank Ltd., Tollygunge branch   for Rs. 3,43,333/-( Rupees Three lakhs forty thousand three hundred thirty three only in discharge of their aforesaid liability. The complainant no .1, after giving ample  scope to the opposite parties, lastly deposited the afore said cheques in his account with the Bank of India, Jodhpur park branch for encashment  on 06.02.2016 i.e. within the period of their validity but to his utter dismay both the aforesaid cheques were returned to the complainant no.1 by his banker  as dishonoured owing to reasons of “ Funds insufficient” vide cheque return memo issued by the drawee bank. Thereafter the complainant no.1 immediately intimated the matter to the opposite parties and relying upon their assurance and undertaking, again deposited the afore said cheques in his aforementioned bank account on 15.02.2016 i.e. within their validity period. But this time also the said cheques were returned to the complainant no.1 by his banker as dishonoured owing to reasons of “Funds insufficient”.

Realizing the ulterior motive of the opposite parties the complainant served a demand notice to the opposite parties through their Ld. Advocate on 14.3.2016 but the Opposite Parties did not pay any heed to their grievances till date. Ultimately the Complainants were compelled to file the instant case for deficiency of service and unfair trade practice before the Commission praying for refund of Rs. 5,93,333/- from 30.11.2015. till the date of realization and 10,000/- towards compensation and for litigation cost of Rs.30,000/-

The complainants have filed the receipts issued by the opposite parties and also the cheques issued by the opposite parties amounting to Rs,2,50,00 & Rs, 3,43,333 which were returned to the Complainant no. 1 by his banker for the reasons of “Funds insufficient”. The complainant also files the Demand letter sent through Advocate dtd.14.3.2016 along with Postal Receipts to the Opposite parties. The complainant files the copy of the registered Deed of Conveyance being Deed No.00696/2014 made in favour of R. K. Shelters Pvt. Ltd. 

On perusal of the record it appears to that in spite of service of notice no steps were taken by the opposite parties and thus vide order dated 30.12.2020 the case was directed to be proceeded exparte.

So, the only point requires determination is whether the complainants are entitled to the relief as prayed for.

 Decision with reasons

  In support of their claim as referred above complainants have filed copies of Joint Application Forms, Receipts of payments issued by the O P Company showing acknowledgement of payments, copies of cheques issued by the O P Company, Return Memo showing non-payment due to insufficient of fund and also the registered Deed of Conveyance being Deed No.00696/2014.

It is a matter of fact that the Complainants paid an amount to the O Ps intending to purchase a flat to be constructed by the O Ps resulting that they are consumers as defined In the C P Act, It is also a fact that the O Ps failed to provide the desired flat, even they sold the project site to another agency without acknowledging to the prospective consumers/buyers thereby causing deficiency in service from their part.  Moreover, the refund amount, comprising of their deposited money and interest thereof, could not be credited by the Complainants to their account due to insufficient fund against the cheques issued by the OPs.  As the O. Ps. are refrained from challenging the complaint so there is no contrary material to counter or rebut the claim of the complainants. Hence the complainants are entitled to get relief as prayed for.

Hence,            

            It is

                        ORDERED

            That the complaint case bearing number CC/37/2019 is allowed exparte.

           The O.Ps. are directed to pay Rs. 5,93,333/- along with interest @ 9% on this amount with effect from 30/11/2015 till realisation within 60 days from the date of this order. 

The O.Ps. are also directed to pay a sum of Rs. 10,000/- as litigation cost to the complainants within the aforementioned date.           

On payment of the sum by the O. Ps., complainant shall hand over the original receipts and cheques to the O. Ps.