Date of filing: 07.02.2017 Date of disposal: 22.11.2017
Complainant: Smt. Maya Bhadra & Sri Ananda Gopal Bhadra, 17/28, Dayananda Road, A-Zone, Durgapur – 713 204, Dist: Burdwan.
Opposite Party: 1. The Director/Branch-in-Charge, M/s. Hahnemann Housing & Development (P) Ltd., Branch Office at Sanjib Sarani, Aesby More, Durgapur – 713 201, District: Burdwan.
2. The Director, M/s. Hahnemann Housing & Development (P) Ltd., B-16, Katjunagar, Beside Katjunagar Swarnamoyee Bidyapath, PS: Jadavpur, Kolkata – 700 032.
Present:
Hon’ble Member: Sri Pankaj Kumar Sinha.
Hon’ble Member: Smt. Nivedita Ghosh.
Appeared for the Complainant(s): Ld. Advocate, Soumendra Kumar Dutta.
Appeared for the Opposite Party No. 1&2: Ld. Advocate, Chandan Kumar Nandi (ex parte).
J U D J M E N T
Complainants Smt. Maya Bhadra and Sri Ananda Gopal Bhadra, both have filed the present application under Section 12 (1) (a) of the Consumer Protection Act, 1986 before the District Consumer Disputes Redressal Forum for refund of Rs. 8,15,014=00, including interest @12% p.a. along with Rs. 1,42,637=00 as well as Rs. 2,00,000=00 for deficiency in service, unfair trade practice and also Rs. 30,000=00 as cost of litigation against Opposite Party, which is private limited company incorporated under Companies Act, 1956, having its registered office at 3/3, Poddar Nagar and a Branch office at Sanjib Sarani, Aesby More, Durgapur.
The case of the complainants are that an agreement executed between the complainants with opposite party for construction and development of land proposed to be sold and the OP company failed to comply with the resolution arrived in course of mediation held on 01.9.2016 and then complainants have compelled to file the present claim application claiming Rs. 11,87,651=00 including cost of litigation and as per provision of Rule 9A of the Consumer Protection Act, a demand draft for Rs. 500=00 bearing No. 446178, dated 24.01.2017 drawn in favour of the Hon’ble President, DCDRF, Burdwan and as per agreement complainants intended to purchase a piece of 3 cottah of developed land bearing Plot No. 06, under Mouza-Manikara, JL No. 77, Dag No. 522, Khatian No. 1252, 1253& 1254 within P.S. Kanksa from the OP on completion of basic infrastructural development work like roads, sanitation, sewerage and OP also agreed to prepare deed of conveyance within specified time and total value of said land fixed Rs. 7,50,000=00 calculated @Rs. 2,50,000=00 per cottah and accordingly complainants booked the said piece of land and OP also issued certificate of booking dated 19.4.2012, valid up to 19.5.2015, after received Rs. 1,50,000=00 and money receipt of being No. 305244, dated 16.4.2012 issued by the OP.
Further case is that subsequently a bipartite agreement dated 03.01.2013 executed between parties represented by Sri Karunamoy Sinha but OP failed to carried out the agreed infrastructure development work in the said piece of land, neither registered the deed of conveyance nor refunded back the value/cost of land which deposited through EMI @Rs. 16,667=00 p.m.
Further case is that Op agreed to refund the deposited value or cost along with interest and as such asked the complainants to submit required papers and the complainants also submitted all the documents to the OP on 04.6.2015 and through the OP company refunded a sum of Rs. 50,000=00 on 31.5.2016 through NEFT and thereafter again complainants sent application to the OP on 28.7.2016 and on 02.01.2017 by speed post demanding refund of balance amount of dues but still OP failed to pay the said amount, then complainants lodged a complaint on 08.8.2016 before the Asst. Director, Department of Consumer Affairs and FBP, Govt. of West Bengal, Durgapur Regional Office and Asst. Director took up the matter in presence of both parties and then also OP agreed to refund the entire dues by 31st December, 2016 and again OP company paid Rs. 50,000=00 through NEFT on 03.10.2016 and ultimately failed to pay entire amount as per agreement and then the Asst. Director in charge, informed the complainants vide office memo No. 13/CA & FBP/DGP, dated 02.01.2017 (to the complainants) regarding the failure of mediation and for that the present application. Therefore the cause of action arose on and from 1st January, 2017.
Complainants have also sent notice upon Ops after filing present claim application and it appears that OP-2 received summon but failed to appeared. OP-1 appeared after received summon but failed to proceed the claim application by filing written version, accordingly case fixed for ex parte hearing against both Ops.
Now point of consideration is whether claimant at all entitled to get any relief against the Opposite Parties?
Decision with reasons:-
To prove the allegation against Ops., both the complainants have filed their evidence-in-chief through affidavit along with documents which are Xerox copies of Booking Certificate dated 19.4.2012, money receipt dated 16.4.2012 issued by OP (Annexure A/1 & A/2), Xerox copy of bipartite agreement dated 03.01.2013 (Annexure-B), Xerox copies of relevant pages of Bank pass book for money transacted between the parties during the period from 19.4.2012 to 11.5.2015 (Annexure –C series), Xerox copy of receipt dated 04.6.2016 and the copy of relevant page of updated Bank Pass Book (Annexure D/1 & D/2), Xerox copy of demand notice dated 28.7.2016 and 02.02.2017 (Annexure E/1 & E/2), Xerox copies of complaint dated 08.8.2016, notice dated 16.8.2016, office memo dated 02.01.2017 (Annexure F/1, F/2, F/3 & F/4), Xerox copy of petition dated 06.01.2016 made under RTI Act, 2005 along with note sheet dated 01.9.2016 of the mediation proceedings and the letter dated 16.01.2017 (Annexure G/1 & G/2).
Complainants also cited judgments 1994 AIR 787 and 1994 SCC (1) 243 along with other case laws to show that they are able to prove allegation against Opposite Parties.
Now it appears that complainants claimed as consumer u/S. 2(1)(d) (ii) of the C.P. Act, 1986 and a bipartite agreement executed between the parties for construction and development of land proposed to be sold after is development to the complainants for consideration, who claims to be the owner of the said land and lodged the complaint before the Hon’ble Forum is a Consumer Dispute u/S. 2 (1)(e) of the C.P. Act. It also appears that complainants have able to prove that agreement executed between themselves with the OP under some terms and conditions and also able to prove that OP failed to fulfill the said terms and conditions either by executing deed of conveyance or by refund all money which received from the complainants.
It also appears that complainants have also able to prove that OP agreed to pay money and for that asked the complainants to produce original papers and as such complainants produced all the papers but failed to pay even mediation also failed for non-compliance of terms and condition as per order by the Opposite Parties.
After perusing all documents as produced by the complainants, it is clear that there is no dispute that complainants able to prove that they are consumer and OP failed to render service by obey the terms and conditions of agreement and thereafter by payment settled through mediation at the same time it is clear from the attitude of both Ops that they have received summons but not contested by their written version and as such they are aware about the present claim case but intentionally kept themselves mum as they are only wants to keep watch about the order of present Forum.
Accordingly it is clear that there is no dispute that the complainants are able to prove without any hesitation that the OP is liable for deficiency in service and unfair trade practice, so, complainants are entitled to get back the money deposited to the account of the OP and also entitled to get compensation towards deficiency in service, unfair trade practice, harassment and mental agony and also entitled to get litigation cost.
Hence, the complaint succeeds.
It is
O r d e r e d
that the present claim application being No. 21/2017 be and the same is allowed ex parte against the Ops with cost.
OP- 1&2 are hereby directed to pay Rs. 6,50,012=00 (Rs. 7,50,012 – Rs. 1,00,000) either jointly or severally to the complainants along with interest @12% p.a. from 20.06.2015 (as per bipartite agreement dated 03.01.2013) till the date of making payment of the said amount and the OP-1&2 are further directed to pay either jointly or severally Rs. 1,00,000=00 as compensation towards deficiency in service and litigation cost of Rs. 10,000=00 within 30 days from the date of passing this award, in default, complainants have liberty to put the entire award in execution as per provisions of law.
Copy of order be supplied to the parties free of cost according to law.
Dictated & Corrected by me:
(Nivedita Ghosh)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
