Date of filing :13.6.2017

Judgment : Dt.10.4.2018

Mr. Ayan Sinha, Member

            This is a complaint under Section 12 of C.P.Act, 1986 (as amended upto date) made by Gautam Das, 11A, Narayan Roy Road, P.S.-Thakurpukur, Kolkata-700 008, against the Director, Alchemist Township India Ltd, Building 23, Nehru Place, Near Allahabad Bank, New Delhi-110 019, OP No.1 and The Branch Manager, Alchemist Township India Ltd., 145A, Diamond Harbour Road, 2^nd floor, P.S.-Thakurpukur, Kolkata-700 008 (OP No.2) praying for directions upon the OPs to refund maturity amount of Rs.20,000/- and to pay compensation of Rs.10,000/- along with litigation costs of Rs.8,000/-.

            Fact in brief are that Complainant being satisfied with the goodwill of OP No.1 who runs business for marketing Real Estate and other similar type of products and OP No.2 is the branch office of OP No.1, deposited a total sum of Rs.20,000/- as fixed deposits with OP No.1 through OP No.2 against which two certificate No.TA01259488 was issued by OPs and later the same was surrendered at the office of OP No.2 on 27.4.2017 vide letter dt.21.4.2017 for returning the maturity amount. Thereafter, the OPs remained silent to refund the maturity amount even after receipt of letters.

            Since the OPs failed and neglected to return the maturity value of deposits, so Complainant filed this case.

            Notices were served upon OPs. OP No.1 contested this case by filing written version and has denied all the allegations against them and submitted that Complainant has deposited money to acquire plot in the Housing Project of OP and Complainant is not a consumer and prayed for dismissal of this cas. OP No.2 did not appear in this case by filing written version. Complainant to prove his allegations filed affidavit-in-chief where he has reiterated the facts as mentioned in the petition against which OP did not file questionnaire and so this case was fixed for OP’s evidence. OP did not file evidence and the case was fixed for argument. On the date of argument OP No.1 filed Brief Notes on Argument and along with certain judgments on which OP No.1 relied upon . Complainant also filed some documents.

            Main points for determinations

1. Whether Complainant is a consumer?
2. Whether there is a deficiency of service upon OPs?
3. Whether the Complainant is entitled for the relief as prayed for?

Decision with reasons

On perusal of the documents filed by Complainant, it appears that OPs issued one certificate No.TA01259488 which reveal that Complainant was to be refunded not less than Rs.20,000/- on 18.1.2017.

      Although Complainant has not filed any money receipts issued by OPs, but it can be well considered that Complainant has paid money to OPs otherwise OPs would not have issued this certificate bearing No.TA01259488 in favour of Complainant stating clearly that Complainant has booked for a plot/villa/apartment in OP’s project at Park Avenue,Talwandi Bhai,Tehsil: Zeera, Dist.- Firozpur, Punjab and was also offered in other projects of OP for a period of three years five months and in the event of non-acceptance he is entitled to be refunded not less than Rs.20,000/- on maturity and as such Complainant is a consumer and as such (i) answered accordingly.

      This certificate also states that Complainant may obtain refund prior to the expiry of the period after deduction of taxes and administrative cost as mutually agreed.

            OP No.1 in his Brief Note of Argument has relied upon the decision which are follows:-

1. Reported in (2014) 14, Supreme Court Cases 773 Ganeshlal VS Shyam wherein the Hon’ble Supreme Court hold that failure to handover possession of a plot of land in such a sale simpliciter cannot come within the jurisdiction of Consumer Forums.
2. High Court Calcutta in C.O.2216 of 2017 (Dipankar Basu VS Rita Bera) wherein the Hon’ble High Court pleased to hold that the Complainant in the Consumer Complaint is not a consumer under the OP and further it is elementary that a Company that is wound up cannot be proceeded without Reference to the official Liquidator and without the leave of High Court which passes order of winding up.
3. Case No.15 of 199 decided o n 20/3/2002 decided by SCDRC, W.B. (Banko Enterprise VS Padmavati Mercantile (P) Ltd. & Ors.

In the instant petition of complaint the matter is of different context.

1. In the case of Ganeshlal VS Shyam Hon’ble  Supreme Court pleased to hold that no service was involved in plot of land but in this case Complainant deposited Rs.10,000/- for booking of a plot/villa/apartment and depending upon the appreciation in the value of Real Estate, which in any event shall not be less than Rs.20,000/- as per Certificate issued by OP.
2.  High Court in C.O. 2216 of 2017 (Dipankar Basu VS Rita Bera) wherein Hon’ble High Court was pleased to hold that Consumer Complaint is not consumer under the OP and further it is elementary that a company that is would up cannot be proceeded without reference to the official liquidator and without the leave of High Court which passes order of winding up. But in this case no documents or evidence of liquidation have been filed by OP, which proves such orders have been passed.
3. Case No.15 of 199 decided on 20.3.2002 decided by SCDRC, W.B. (Banko Enterprise VS Padmavati Mercantile (P) Ltd. and Ors, where Hon’ble State Commission observed that is was not clear that whether any agreement has been executed between the parties. But, in this case, on perusal of the certificate No.TA001259488 filed by Complainant, it appears that OP issued certificate against the application of Complainant dt.31.7.2013 showing interest to acquire plot/villa/apartment in their housing project or other projects. In the event of non-acceptability by Complainant, the OP will refund Rs.20,000/- to the Complainant.

Considering all facts and circumstances, we hold that there was a deficiency of service upon OPs and Complainant is entitled to the reliefs as prayed for. As such (ii) & (iii) answered accordingly.

Complainant has also prayed for Rs.10,000/- as compensation for harassment and mental agony and litigation cost of Rs.8,000/- which is exaggerated.

Complainant deposited Rs.10,000/-  but did not file any evidence which proves that he has surrendered the Certificate to OP for claiming this maturity value of Rs.20,000/- except a letter dt.21.4.2017. Moreover, on perusal of the records, it appears that the original certificate had been filed by Complainant on the date of argument. Thus, we are of the opinion not to allow any compensation to the Complainant if we allow the full maturity value of Rs.20,000/-.

So, we are of the view that if a direction be given upon OPs to pay Rs.20,000/- (Rupees twenty thousand) to the Complainant along with litigation cost of Rs.5,000/- justice would be served.

            Hence,

ordered

            CC/311/2017 and the same is allowed on contest against OPs.

            OPs are directed to pay Rs.20,000/- to the Complainant against submission of original certificate within 30 days from the date of this order.

OPs are also directed to pay litigation cost of Rs.5,000/- to the Complainant within the aforesaid period. In default, the total amount shall carry interest @ 9% p.a. till full realization of the total amount.

 Failure to comply the order will entitle the Complainant to put the order into execution under Appropriate Provision of C. P. Act.