The Complainant has filed this case u/s 35 of the Consumer Protection Act, 2019        against the O.Ps. and praying for the following order/relief, namely:-

1. Direction against the O.Ps. to pay a sum of Rs, 3,00,000/- (Rupees Three Lakh) Only to the Complainants, as refundable amount which is still lying in the hand of the OPs with accrued interest therein.
2.   Direction against the O.Ps to pay a sum of Rs.1, 50,000/- (Rupees One Lakh Fifty Thousand) only to the Complainant for adopting unfair trade practice on the part of the OPs.
3. Direction against the O.Ps to pay jointly or severely a sum of Rs. 40,000/- (Rupees Forty Thousand) only to the Complainant for pecuniary loss harassment, mental pain and agony suffered by the Complainant by the acts of the OPs.
4. Direction against the OPs to pay a Rs. 9,000/- (Rupees Nine Thousand ) only as litigation cost.
5. Any other relief/ reliefs which the Complainants are entitled.

BRIEF FACTS OF THE COMPLAINT.

1.  The Complainants are the residents of the address mentioned in the cause title, Complainant No. 1 is a Senior technical editor, Complainant No. 2 is a businessman who decided to settle near Siliguri and in the last phase of May 2022, they contacted with the OPs over mobile phone which was given in the Facebook page  and on the basis of cell-phonic conversation the Complainants have visited the construction projects of the OPs and with intending to book two flats measuring 2100 sq ft more or less in the under construction project of the OPs situated at Matigara, Khaprail More, PS Matigara, Dist Darjeeling namely Oxyprana Home Construction.

2.  As per instance of the OP No. 2 on behalf of the OP No. 1 the Complainants on good faith gave a sum of Rs. 3,00,000/-(Rupees Three Lakh) Only in favour of the OPs for the purpose of booking of a  proposed flat at the project of Oxyprana.

3.  The Complainant issued a cheque being No. 007602 dated 07.06.2022 for the sum of Rs. 1,95,000/- (Rupees One Lakh Ninety Five Thousand) Only drawn on Axis Bank, Dinbazar,  Jalpaiguri Branch to TIRU FINE RESIDENCY LLP.

4. The Complainant also issued another cheque being no.  007605 dated 11.06.2022 amounting to Rs. 1,05,000/-  (Rupees One Lakh Five Thousand ) only of 6 drawn on Axis Bank, Dinbazar, Jalpaiguri Branch from the saving bank account being no. 921010015480795 of Ayusman Goswami (Complainant No. 2)

5. That, on 17.08.2022 the Complainant No. 1 sent email to the OP No. 3 stating that, due to unforeseen medical emergency in family of the Complainants they could not be able to proceed booking or flat purchase with a request to revert back the sum of Rs. 3,00,000/- (Rupees Three Lakh) Only which was already paid in favor of O.Ps from the date of receipt of email of Complainant No. 1 or at the earliest.

6. That, on 19.09.2022 another mail was sent to the OP No. 3 by the Complainant No. 1 with the same request and notifying that they have tried to contact S.J. Naskar (O.P. No. 2) over phone/ whatsapp but nothing did turn up by the OPs in favour of the complainant.

7. That, on 20.10.2022 one whatsapp message was received in response of the Complainant No. 1 but the OP No. 2 again became silent and the Complainant No. 1 again sent message to OP No. 2, sent whatsapp message to OP No. 2 and the OP No. 2 replied that he was on leave with a request to the CRN (OP no. 3) of Prana House in mailing to

8.  On 19.12.2022 the Complainant send Legal Demand Notice to the OPs through speed post which was delivered to the OP No. 1 &2 on 11.01.2023, and the notice was returned back to the sender from OP No. 3 but the OPs paid no heed for that.

9. That, the Complainants had suffered loss, great financial crunch, and the acts of the OPs’ caused mental pain, suffering and harassments to the Complainants in collusions amongst the OPs.

10. That, the cause of action of this case arose on the month of May 2022 when the Complainant visited the website, secondly arose on 07.06.2022, 11.06.2022 when the Complainant sent money in favour of the OPs, Thirdly arose on 19.09.2022 when the Complainant No. 1 sent mail to the O.P. No. 3, Fourthly, on 20.10.2022 when the Complainant No. 1 again sent mail to the OPs, Fifthly on 19.12.2022 when the Legal Demand Notice was sent, Sixthly on 11.01.2023 when the Legal Demand Notice was served to the OP No. 1 and 2 and finally on 18.01.2023 on the date of expiry of stipulated time given in the legal notice and the same is continuing till today.

11. The Complainant has also stated that the Pro OP is a necessary party for proper adjudication for this case.

In support of the case the Complainant filed list of documents as follows:

1. Photocopy of email dated 17.08.2022 and  19.09.2022.
2. Photocopy of whatsapp message received by Magnanil Goswami from the OPs .
3. Photocopy of  SMS by the Complainant No. 1 to S. J. Naskar.  
4. Photocopy of Legal Notice dated 19.12.2022.  
5. Photocopy of Postal Receipt dated 19.12.2022 and
6. Photocopy of POD of track consignments.

Notice was sent from this Commission for servicing the same to the OPs as well as Pro OPs. Despite receiving notice the OP No. 1 to 3 did not turn up before this Commission to contest this case. Accordingly, the case is proceeding ex-parte against the OP 1 to 3.

On receiving of notice Pro OP appears before this Commission through Vokalatnama, files Written Version, denied all the material allegations of the Complainants. The Pro OP in his Written Version has stated that the Complainant had filed this case which requires to be dismissed. The POP only admits that, the Complainant No. 2 is their customer having his savings account with their branch.

Having heard of the Ld. Advocate of the Complainants,Pro OP and on perusal of the document filed on behalf of the Complainants the following points are to be considered/ decided.

                         Points for consideration       

1. Whether the Complainants are  Consumers?
2. Whether the case is maintainable under the C.P. Act 2019?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Are the Complainants entitled to get any award and relief as prayed for as per the prayer of his Complaint?

                                                      Decision with reasons:-

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

Complainants were given opportunity to prove the case by producing their evidence either oral or through documents. Ld. Advocate of the Complainant No. 1 Magnanil Goswami filed Written Deposition in the form of an Affidavit and also filed the above noted documents to prove its case. In the Written Deposition inchief the Complainants have specifically corroborated the contents of their complaint. The Complainant No. 1 has also stated in the complaint on which day they contact with the OPs for purchasing a flat and also stated on which day they issued two cheques in favour of OPs and on which day they emailed to the OPs for getting back the sum of Rs. 3,00,000/- (Rupees Three Lakh) only from the OPs.

At the time of arguments, Ld. Advocate of the Complainants submits that the Complainants have been able to prove this case against the OPs not only through filing of oral evidence but also by producing various documents including the bank statement of the Complainant No. 2. Ld. Advocate of the Complainants has also argued that theComplainants have been able to prove the case against the OPs and they are entitled to get the relief as prayed for.

The Pro OP, The Manager Axis Bank did not file any evidence to falsify the case of the complainants they only filed Written Version on their appearance.

Having heard the Ld. Advocate of the Complainants and on perusal of the unchallenged evidence of the Complainant No. 1 and also on perusal of the documents it reveals that the Complainant No. 2 Ayusman Goswami issued two cheques in favour of TIRU FINE RESIDENCY LLP. It also reveals from the record that the said sum of Rs. 3,00,000/-(Rupees Three Lakh) only was debited from the account of the Complainant No. 2 being savings account no 921010015480795 and the said sum of Rs. 3,00,000/- (Rupees Three Lakh) only was credited in the account of TIRU FINE RESIDENCY LLP. It is also proved by the Complainants that they sent several email to the OPs along with the Legal Demand Notice. But despite receiving those emails as well as Legal Demand Notice the OPs did not returned back the sum of Rs. 3,00,000/- (Rupees Three Lakh) only which was credited in the bank accountof the OPs. By non payment of that amount as well as by not giving of reply to the SMS/ emails of the Complainants the OPs intention became clear that they adopt unfair trade practice as well as deficiency in service.

Considering all we are of the view that the Complainants have been able to prove their case against the OP No. 1 to 3 who are jointly and severally liable to pay the awarded amount to the complainants.

Hence, it is therefore,

 O R D E R E D

That, the instant Consumer Case being in No. 03/2023 is hereby allowed on ex-parte but in part. The O.P. No. 1 to 3 are directed to pay a sum of Rs, 3,00,000/- (Rupees Three Lakh)  Only to the Complainants which they received from the Complainants.

The O.P No. 1 to 3 are also directed to pay interest @ 7 % with effect from 15.06.2023 till making payment of the entire amount. The OPs are also directed to pay a sum of Rs. 50,000/- (Rupees Fifty Thousand ) only  to the Complainants for adopting unfair trade practice and causing mental pain agony to the Complainants by the acts of the OPs. The OP No. 1 to 3 are also directed to pay sum of Rs. 5,000/- (Rupees Five Thousand) only to the Complainants towards the cost of legal proceedings. The OP No. 1 to 3 are further directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousands) only in the Consumer Legal Aid account being no. 34608045225 Of State Bank of India, Jalpaiguri Main Branch, of this Commission.

Let a copy of this order be given to parties free of cost.