Date of filing : 07.12.2017
Judgment : Dt.27.05.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sambhu Nath Das alleging deficiency in service and unfair trade practice on the part of the opposite parties (referred as OP hereinafter) namely (1) The Director, Alchemist Township India Ltd. and (2) The Branch Manager, Alchemist Township India Ltd.
Case of the Complainant, in brief/short, is that the Complainant deposited Rs.1,00,000/- with the OP No.1 through the OP No.2 for a period of 30 months and the OP NO.2 handed over a certificate being No.TA01474365 dt.18.7.2013 to the Complainant and verbally assured the Complainant that the Complainant would get monthly interest @ 12% per annum on the deposited amount and paid interest for 29 months.. It is further stated by the Complainant that on 16.10.2017 she sent a letter to the OP No.1 enclosing copy of the said certificate to treat the certificate as surrendered and requesting disbursement of deposited amount along with interest in favour of him. However, in spite of receiving said letter the OP No.1 remained silent and finding no other alternative the Complainant forwarded said letter to the OP No.2, which was returned back to the Complainant with postal endorsement ‘Addressee left’ and, therefore being aggrieved the Complainant by filing the instant consumer complaint prayed for direction upon the OPs to return Rs.1,00,000/-, to pay Rs.1,000/- towards interest, to pay Rs.30,000/- towards compensation and Rs.20,000/- towards cost of litigation.
The Complainant annexed copy of certificates bearing No.TA 01474365, payment advice bearing No.T2888104, letter dt.16.10.2017, track report, photocopy of Envelope, etc.
The OP No.1 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia, that the nature of dispute is related to investment as well as property disputes and this Forum is not empowered to adjudicate such matter. The OP No.1 further stated that no such assurance of payment of interest @ 12% p.a. has been offered to the Complainant, moreover, the claim of the Complainant regarding surrendering the certificate with OP No.2 is baseless and as such there is no deficiency in providing service on the part of the OPs and accordingly, prayed for dismissal of the case.
The Complainant and the OP No.1 adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
Both parties filed BNA.
In course of argument Ld. Advocate for the Complainant submitted that non-refund of deposited amount along with interest caused severe harassment to the Complainant for which the OPs are liable to pay compensation.
Ld. Advocate for the OP No.1 submitted that the dispute is related to investment. It is further stated by the OP that Hon’ble Division Bench of Calcutta High Court vide Order dt.21.12.2017 has directed payments to be made through one man committee.
Points for determination
- Whether there is deficiency in providing service
- Whether the Complainant is entitled to the relief as prayed for
Decision with reasons
Both points are taken up together for comprehensive discussion and decision.
In course of argument, Ld. Advocate for the OP raised the issue of maintainability on the grounds that the instant case is ‘suit for land’ and the Complainant is not a consumer and, accordingly, placed reliance upon the decisions of (1) Hon’ble Supreme Court of India reported in (2014) 14 SCC 773 [Ganeshlal vs Shyam], (2) Hon’ble High Court Calcutta, reported in 2017 SCC Online Cal 12086 and several other decisions –
It is to be mentioned that while passing order on the point of maintainability, this Forum vide order No.7 dt.15.3.2018 has held that the instant Consumer Complaint is maintainable and, therefore, there is no scope for further discussion on the said points.
The Complainant claimed to have deposited Rs.1,00,000/- to the OP and a certificate was handed over to her acknowledging deposit of such amount. In support of such averment copy of certificate bearing No.TA01474365 has been filed wherefrom it appears that the Complainant deposited Rs.1,00,000/- for acquiring plot/villa/apartment in the housing project of OP.
It is further claimed by the Complainant that a verbal assurance was communicated to the Complainant regarding payment of monthly interest @ 12% p.a.
On perusal of the certificate dt.13.7.2013, it appears that the OP promised to refund the amounts received by them from the Complainant along with compensation assessed by the OP in case of not accepting allotment of plot/villa/apartment. It further appears from the said certificates that the depositor may obtain refund prior to expiry of the period mentioned therein and in that situation, the depositor will get refund of deposited amount after deduction of applicable taxes. It is, therefore, evident that the claim of payment of monthly interest does not arise at all.
It is, therefore, evident that the Complainant deposited Rs.1,00,000/- on 18.7.2013 and sought refund on 16.10.2017 by sending the certificates to the OP which indicates that the Complainant sought refund after expiry of agreed period of 30 months. However, the OP admitted in his affidavit-in-reply to the question No.2 of questionnaire advanced by the Complainant that an amount of Rs.1,00,000/- had been received by them but no document had been annexed by the OP to substantiate that after expiry of 30 months which steps they took to refund the amount as per agreed terms of the said certificates apart from issuing inter office payment advice. It is denied by the OP No.1 that they received letter dt.16.10.2017 issued from the end of the Complainant. Be that as it may but in spite of receiving payment from the depositor the OP neither handed over plot/villa/apartment nor did refund the deposited money which amounts to deficiency in providing service and therefore the Complainant is entitled to get relief.
The OP raised the issue regarding an order of Hon’ble High Court, Calcutta stating that Hon’ble Division Bench of High Court Kolkata vide orders dt.21.11.2017 & 21.12.2017 has directed that payments to be made through one man committee which is monitoring such payments and vide order dt.29.1.2018 has directed that individual claims for consideration by the Committee must be accompanied by the Format prepared by the Committee disclosing therein all the requisite particulars. It is, therefore, clear that their Lordships did not debar the depositor to seek relief under C.P.Act. Furthermore, the Complainant swearing affidavit has stated that no claim has been filed by the Complainant before the said one man Committee.
In view of the discussion made hereinabove, we are inclined to allow the prayer for refund of Rs.1,00,000/- to the Complainant.
Regarding prayer for payment of interest and compensation, the Complainant failed to substantiate such claim and, therefore, this prayer is not allowed.
The OP compelled the Complainant to file the instant case and, therefore, they are liable to pay litigation cot of Rs.10,000/-.
Point Nos.1 & 2 are decided accordingly.
In the result, the instant Consumer Complainant succeeds in part.
Hence
ordered
That CC/692/2017 is allowed on contest against OP No.1 and ex-parte against OP No.2 with cost. The OPs are directed to refund Rs.1,00,000/- within 3 months from the date of this order failing which the amount shall carry interest @ 7% p.a.
The OPs are further directed to pay Rs.10,000/- towards cost of litigation within above mentioned period.
