Debasis Bhattacharya:- PRESIDING MEMBER

The instant case filed u/s 35 of the Consumer Protection Act 2019 by the complainant originates from her grievances arising out of the opposite parties developers’ alleged failure to hand over possession of a flat reported to have been booked by the Complainant and indifference towards refund of the booking money and advance payments made against the proposed purchase of the flat by the Complainant, consequent upon the said failure.

The fact of the case as stated by the Complainant in her complaint petition in a nutshell is as follows.

Having been allured by the advertisement of the OP 1 and having found that the cost of the flat within her financial capacity the Complainant got interested to purchase a flat in the project undertaken by OP 1 and approached to the OP 1 for booking of a flat in the said project. The basic price of the 600 sq. ft. flat reportedly was 12,15,000/- and the project was initially was named as ‘Aspirana Malabar Residency’.

The Complainant claims to have paid Rs. 1,25,000/- in total to the OP 1 against the proposed purchase, in two installments viz.Rs.65,000/-, 60,000/-, and money receipts are claimed to have been issued by OP 1.

At that juncture OP 2 appeared in the scene and reportedly the Complainant was ‘guided’ by OP 2 to switch over to their project under the name ‘Royal Enclave’ against which the amount already paid to OP 1 was ‘duly honored’ by OP 2. However a further payment of Rs.70,000/- is claimed to have beenmade to OP 2 against allotment of flat in the said project of OP 2 under the name ‘Royal Enclave’.

Thus total payment made by the Complainant was to the extent of Rs1,95,000/-

Simultaneously, the petitioner claims that as OP 1 was ‘absorbed by and amalgamated and merged with OP 2’, the onus of delivering the possession of the flat or of making refund of the money paid in advance to the Complainant

lies on OP 2.

Allegedly, neither the flat was delivered nor the money paid in advance was refunded.

The Complainant thus approaches to this Commission with a prayer to impose direction upon the Opposite parties to make refund of Rs.1,95,000/- along with interest @14% and to pay compensation which is not specified.

The Complainant along with the complaint petition has annexed copies of 1) the purported application form for purchasing a flat, 2) Money receipts issued by one Dharitri Infraventure Pvt. Ltd. dtd.03.07.18 of Rs.70,000/-, 3) two money receipts one of Rs,60,000/- dtd.19.02.17 and the other of Rs.65,000/- dtd.21.09.16 issued by one Aspirana Infraventure Pvt. Ltd. and 4) communications made to the OPs in the matter of refund of the money paid in advance.

However in spite of exercising all possible ways of serving notice to the opposite parties including newspaper publication, the opposite parties did not appear before this Commission at any stage of the case proceeding. Resultantly the case ran ex parte against both the parties.

In view of the above discussion and on examination of available records it transpires that the complainant is a consumer as far as the provisions laid down under section 2(7)(i) of the Consumer Protection Act 2019 are concerned. The consumer appears to be a resident within the district of Hooghly.

The claim preferred by the complainant does not exceed the limit of Rs.50,00,000/-

Thus, this Commission has both territorial as well as pecuniary jurisdiction to proceed in the instant case.

The issues related to the questions whether there was any deficiency of service and whether the complainant is entitled to get any relief, being mutually inter-related, are taken together for convenient disposal.

Decision with reasons            

Materials on records are perused.

On meticulous examination of the complaint petition, documents annexed with the same and all other relevant aspects, it transpires that no agreement was executed in the matter of the proposed purchase and surprisingly the Complainant made payments one after another without any agreement signed by both the sides.

Naturally this Commission is thoroughly in dark so far as the terms and conditions of the proposed purchase are concerned.

As regards the evidence of payments made by the Complainant, the money receipt issued by OP 1on 21.09.16 against the payment of Rs.65,000/- is surprisingly on account of‘Aspirana Infraventure’ and the money receipt issued by OP 2 on 31.07.18 against the payment of Rs.70,000/- is simply on account of ‘Dharitri’ and not on account of payment of installment against purchase of any flat.

Thus, the Complainant not only made payments without any agreement but also did not feel the necessity to receive the money receipts after proper scrutiny.

Now the Complainant claims that the OP 1 was merged/ amalgamated with OP 2.

But the Complainant does not appear to have examined any such deed of amalgamation in this regard before agreeing to the proposal of OP 2 to switch over to their project and before making any further payment to OP 2.

At least no reference in this regard has been made in the complaint petition.

Besides, the petitioner’s grievance over non-delivery of possession of the flat cannot be appreciated as delivery of possession of a flat worth Rs.12,15,000/- on receipt of Rs.1,95,000/- sounds ludicrous.

Now, in view of the discussion made hereinabove and considering the facts and circumstances of the case, this commission is of the view that the Complaint petition can in no way substantiate the allegations made therein in the instant case.

In the result the instant complaint petition appears devoid of any substance, thoroughly opaque in nature and hence deserves dismissal.

Accordingly it is

ORDERED

that the complainant case no.100/2022 be and the same is dismissed ex parte with no order as to costs .

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post for information and necessary action.

The final order will be available in the website www.confonet.nic.in.