DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK

                                                                                                        Present 1. Shri Raghunath Kara, President

                                                                                                                    2. Shri Basanta Kumar Mallick, Member

                                                                                                                    3. Afsara Begum, Member

Dated the 22nd day of February, 2018

C.D. Case No.102 of 2016

Mr. Arun Kumar Gupta

S/O Durga Charan Gupta

At-Kachari Bazar

PO-Bhadrak

P.S.-Bhadrak(Town)

Dist-Bhadrak………………………Petitioner/Complainant

                                       Versus

01. Sri Trupati  Chaudhary

Director Hi-Tech Multiplex (P) Ltd

Regd. Office-Plot No-R/103

Sahid Nagar, Bhubaneswar-751007

2. The Manager Cum Construction in-charge

Hi-Tech Plaza Apartment,

At-Mauza Trishalpur

PO-Ranital

PS-Bhadrak

Dist-Bhadrak……………………Opposite Parties

For Complainant- Sri Santosh Ku. Nayak, Adv. & Associates

For Opposite Parties- Sri Kalish Ch. Prusty, Adv. & Associate

Date of Hearing-14.11.17

Date of Order-22.02.2018

BASANTA KUMAR MALLICK, MEMBER  

This dispute arises out of a complaint filed by the complainant alleging deficiency of service and unfair trade practice.

The facts as narrated in the complaint are to the effect that the complainant being aware of the advisement published in the printing and electronic media about the construction, booking and sale of the apartments and was to be constructed and completed within a period of three years over plot No-120(P) and 126(P) in Khata No-190/38 under Revenue Mauza Trishalpur, Ps-Bhadrak(R) Dist-Bhadrak. Being motivated by the advertisement, the complainant evinced interest to purchase an apartment for residential purpose having super built area of 1300 square feet on the Ground Floor, Block A1, Flat No-G/A1-06 of the Hi-Tech Plaza for a sum consideration of Rs. 17,23,800/- and accordingly an agreement was executed between the complainant and OP No-1 on Dt.30.09.2011 at Bhadrak Office of Hi-Tech Multiplex(P) Ltd. According to the terms of the agreement, the complainant had to pay the entire agreed amount in 5 installments commencing from the date of execution of agreement and to pay initially an amount of   Rs. 4,30,950/-(Rupee Four Lakhs Thirty Thousand Nine Hundred Fifty). Only along with membership fee of Rs 500/- .The complainant has paid Rs. 2500/- on Dt.25.06.2011, Rs.65,000/- on Dt.11.09.2011 and Rs. 3,57,500/- on Dt. 20.07.2011 and in this manner the complaint has paid total amount Rs.7,79,500/- to OP No-1 commencing  from Dt.25.06.2011 to Dt.20.07.2011 as part payment out of the total amount as agreed between the parties. Although it was agreed between the parties to complete and handover possession of the flat within 36 months from the date of agreement, the complainant come to know on visiting the spot that initial work of construction of multiplex plaza has not yet started. Being disappointed, the complainant proceeded to the office of O.Ps at Bhubaneswar with an intention to cancel the booking of the flat and to get back his deposited amount together with interest at the Bank rate but did not find O.Ps in their office. Finding no other way the complainant sent a notice to OP No-1 through his advocate on Dt.02.07.2015 requesting refund of deposited amount with interest @ 18% P.A. within 15 days from the date of receipt of notice. Soon after receipt of notice the O.Ps through their advocate responded to complainant in requesting to allow some more time to enable the O.Ps to refund the deposited amount if they fail to hand over the possession of flat/apartment to the complainant. The complainant waited for a period of nearly one year to get back his hard earned money from the O.Ps which ended in fiasco as the O.Ps did not initiate any action to pay back the amount. But during the month of June, 2016 OP communicated a proceeding of their meeting held on Dt.27.06.16 which was meaningless for the complainant as he does not want to purchase the apartment/flat. Once against the complainant sent legal notice on Dt.18.07.2016 to OP No-1 requesting him to refund the deposited amount together with interest which also not yielded any result as the O.Ps turned a deaf year to the notice of the complainant. Such action of the O.Ps amounts  to deficiency of service and unfair trade practice which compelled the complainant to raise a dispute in this Forum praying for a direction to the O.Ps to refund this deposited amount with interest along with cost and compensation for mental agony and harassment and also cost of litigation.

OP resisted the claim and contested the case. In the written version submitted by the O.Ps have objected the maintainability of the case on the ground of violation of terms of agreement, bared by limitation, cause of action and have prayed for dismissal of the case. It is further stated by the opposite parties that as admitted by the complainant, the cost of apartment/flat was of Rs.17, 23,000/- as against which he has paid a sum of Rs.7, 79,500/-, need be proved by the complainant.

Further it is submitted by the O.Ps that unless the full value of the apartment is paid, the complainant cannot be said as a consumer and the question of handing over the possession of Apartment/Flat does not arise. As regards the allegation regarding no construction was stated on the plot of Land in Mauza Trishalpur, OP submitted that the statement of the complainant is absolutely untrue and imaginary. The actual fact is that a good progress has been made in relation to construction of the apartment over the land as mentioned in the agreement which proves that the complainant has taken false plea as to have visited the construction site. Other than above objections the opposite parties have claimed the complainant to prove strictly the allegations made in the complaint. Submitting as above O.Ps prayed for dismissal of the dispute due to devoid of merit.

Admittedly the complainant was a prospective purchaser of a flat under deferred payment system, according to progress of work. Accordingly both the complainant and OP have executed agreement/MoU containing detail terms and conditions. It is also admitted by both the parties that the complainant has paid Rs 500/- for enrollment of his membership in the OP’s company. Leaving aside the above mentioned facts, all other allegations brought in the complaint are disputed.

Gone through the complaint and written version, heard the parties in the open Forum and observed that the following points are barely required to be discussed to derive the conclusion and to decide the case.

Whether the complaint is a consumer within the meaning of C.P. Act, 1986.
Whether the case is maintainable in this Forum in view of cause of action, jurisdiction and violation of terms of the agreement.
Is there any evidence with the complainant to prove payment of Rs.7, 79,500/- to the opposite party No-1?
Is there any deficiency on the part of O.Ps to provide required service to the customer and are the O.Ps indulged in unfair trade practice?                  

01. O.Ps in their written version and also in course of hearing submitted that the complainant is not a consumer within the meaning of C.P. Act as the complainant has violated clause- 38 of the agreement which categorically stated that all disputes and differences between the parties pertaining to apartment and to this agreement shall be referred to an arbitrator to be appointed by the opposite parties and to be adjudicated in consonance with the provisions of Indian Arbitration Act, but the complainant in this case has not done so. Secondly according to the terms of agreement relating to payment schedule, the complainant has paid only Rs.7,79,500/- as he claims, which is not the full amount as agreed between the parties. Unless full payment towards the cost of apartment is made, complainant cannot claim himself as a consumer. Hence the dispute is not maintainable in this Forum and liable to be dismissed.

The complainant strongly objected this point of submission of O.Ps in stating that O.Ps are misinterpreting the relevant provision of CP Act. According to the provisions under Sec-2(1)(d) of the Act, the provision of “promised to pay under deferred payment system” and accordingly the complainant had to pay the amount in phase manner over a period of three years according to progress of construction work. But the O.Ps have violated the terms of the agreement by not initiating or starting the construction work. Thus, the status of the complainant according to relevant provision of CP Act, is a consumer and as such he has got every right to file dispute in the consumer Forum for proper adjudication.

02. O.Ps raised the question of maintainability in stating that the opposite parties do not actually and voluntarily reside in Bhadrak District or do not have a branch office to carry on business for their personal gain. Secondly the dispute is barred by limitation as the last payment was made on Dt.20.07.12 which is treated as last date of cause of action. Filing of this dispute in September, 2016, that is after four years of last payment comes under barred by limitation. Thirdly, O.Ps also submitted that according to clause-38 of the agreement, Complainant had to raise the dispute before the arbitrator which is violated by the complainant. Hence in this Forum has no jurisdiction to admit and adjudicate this case.

On the contrary complainant submitted in stating that paragraph-3 (1st Page) of the agreement executed by the parties disclosed that he project is situated within Bhadrak jurisdiction and monitored by an authorized person who is having office at Bhadrak. Hence the O.Ps are having Business within Jurisdictional Limit of Bhadrak Forum as well as having an office and officer to manage the construction work at Trishalpur under Bhadrak (R) police station. Since the O.Ps have business interest in Bhadrak District and singed agreement (MoU) with the complainant who belongs to Bhadrak township area and the construction site comes under Bhadrak (Rural) police station, the objection of OP on the ground of jurisdiction is not sustainable.

03. The complainant submitted in stating that according to clause- 4 under the head of “PAYMENT SCHEDULE” total amount of Rs. 17,23,800/- was to be paid to the complainant in phase manner according to the progress of work as mentioned in Sub-Clause (a) (I to V). Accordingly the complainant has paid Rs.2500/- on Dt.25.06.11, Vide Money Receipt No-111, Rs.3,55,000/-in shape of Bank Draft Vide No-062332 drawn on Axis Bank, Rs.3,57,500/- in shape of D.D. No-062342 drawn on Axis Bank on Dt. 20.07.2012 and Rs.65,000/- in cash Vide MR. No-162 Dt. 20.07.2012 total of which comes to Rs. 7,79,500/- which is to b refunded by the Ops with interest @ 18% interest per annum and complainant claims that the money receipts have been submitted before the Forum for perusal.

On the other hand O.Ps objected in stating that although it is stipulated in Clause-8 of the agreement to hand over the possession of Flat within 3 years (36 Months) with a grace period of 6 months from the date of execution of agreement but certain saving clause is also there to decide what to do in case of any problem arises beyond the control of O.Ps. It is clearly mentioned in Clause-12 that for any unforeseen reasons what so ever, if the completion of the unit is delayed, the purchaser shall not be entitled to claim any compensation on the apartment cost agreed to be paid by him to the builder. Accordingly the OP has also communicated a copy of the proceeding of Hi-Tech Plaza, Bhadrak customers held on Dt.27.06.2016 where it was decided to hand over the possession of flat soon after completion of flat within a period of six months and a copy also was sent to complainant requesting his co-operation .

In objecting such statement of the OP, the complainant, during hearing, brought a document to the notice of the Forum to refer paragraph 10 of the proceeding of said meeting where it is clearly mentioned that the Managing Director of Hi-Tech Multiplex (P) Ltd, that the customers those who have opted for surrender or cancelation of booking of flat have to wait for a period of 6 months for refund of their deposited money on first come first serve basis. Complainant further argued that the said meeting of Bhadrak customers was held on Dt.27.06.2016 and six months was to be completed on Dt. 27.12.2016. Although this dispute was filed and admitted on Dt.26.09.2016, the O.Ps could have settled the claim on compromise between parties outside the Forum but O.Ps did not evince any interest to settle the issue amicably which clearly indicates their intention to delay inordinately for refund of deposited amount. This is enough to prove the foul play played by the O.Ps with the complainant having ulterior motive. Complainant claims to have submitted all the proofs such as copy of agreement, money receipts in support of deposits (five numbers) and notices served upon the O.Ps through his advocate. As the complainant has adduced all required evidence before the Forum which strongly support his claim, the Forum is prayed to pass order directing OP to pay back the amount deposited together with interest as claimed.

04. The complainant alleged that the O.Ps have grossly neglected to provide minimum required service to the complainant which amounts to deficiency of service and as the O.Ps have failed to hand over the possession of the Flat/Apartment within the stipulated time as provided at Clause-8 of agreement and taking false plea to payback the amount which is not yet materialized is considered as unfair trade practice.

In complying to the allegation of the complainant, O.Ps submitted that complainant has executed Agreement accepting the condition stipulated at Clause-12 that “if for any unforeseen reason, whatsoever, the completion of unit gets delayed, the purchaser shall not be entitled to claim any compensation……….. or any other circumstances beyond the control of the builder”. It is an established fact that both Managing Director and Director of Hi-Tech Multiplex (P) Ltd were under judicial custody for a good number of Months and the Bank accounts of Hi-Tech Multiplex was seized, the O.Ps could not keep the construction work in progress as a result of which O.Ps failed to make over the possession of Flat within the agreed period and such problem cropped up due to policy changes in Govt. which is beyond the control of O.Ps. Therefore such delay caused in execution of construction work of the unit at Bhadrak is not intentional or not due to negligence of the O.Ps but it has happened under compulsion of situation contributed by external factors. Hence O.Ps are not negligent in providing service to the complainant as consumer nor have resorted to any unfair trade practice.

05. On Perusal of material on record and careful consideration of the facts submitted by the parties in course of hearing, we have observed as mentioned below.

(a).  The Objection raised by the OP as regards cause of action, status of the complainant maintainability of the case in this Forum and jurisdiction could not be proved and hence not sustainable.

(b).  The burden o proof on the point of payment as the complainant has paid the amount of Rs.7,79,500/- as a part payment out of the total agreed amount of Rs.17,23,800/- on different dates. Accordingly the complainant has adduced evidence in submitting 5 numbers of money receipts in original which proves that the complainant has paid Rs.7,79,500/- in four occasions to the O.Ps as advance payment in obedience to the conditions stipulated at Clause-4 of the agreement and as such the payment made by the complainant is proved.

(c). It is also observed that the O.Ps have not made any communication to the O.Ps regarding problems cropped up nor kept their promise to pay back the amount as claimed by the complainant as mentioned in the reply letter issued in response to the legal notice of the complainant, which proves that such action of complainant amounts to deficiency of service and also the O.Ps are held to have resorted to unfair trade practice.

(d).  The complainant claims that he has paid Rs.7,79,500/- to the O.Ps according to the terms of the agreement. As the complainant has prayed to direct the O.Ps to refund the deposited amount of Rs. 7,79,500/- with interest, we have no option other than to direct the O.Ps to pay Rs.7,79,500/- along with interest @ 5%  per annum on actual accrual basis as calculated by the Bank on day’s product.

In view of the above facts and circumstances and after careful consideration from all angles, it is felt genuine to allow the complaint. Hence it is ordered;

                                                        ORDER

The complaint be and the same is allowed against O.Ps on contest. O.Ps are directed to refund a sum of Rs.7,79,500/- together with interest @ 5% Per Annum on the deposited amount to the complainant from the date of deposit within 30 days from the date order failing which additional 5% interest shall be charged over and above the normal interest on the order amount. Further the O.Ps have to pay a sum of Rs.5,000/- as compensation for mental agony and harassment and Rs.3000/- as cost of litigation within the above mentioned time Limit.

This order is pronounced in the open Forum on this 22nd day of February, 2018 under my hand and seal of the Forum.

                                                                                     (Sri Basanta Kumar Mallick)                                                                                                                                                             

                                                                                                        Member

(Sri Raghunath Kar)                                                         

         President

                                                 Typed to my dictation & corrected by me

                                                                           (Sri Basanta Kumar Mallick

(Apsara Begam)                                                                   Member

     Member