Order no.5 Date:01.11.2023
Ld. Advocate for the complainant is present and files statement of two bank accounts of State Bank of India by firisti.
The case is taken up for admission hearing.
Perused and considered the complaint application along with photo copies of the document filed by the complainant.
Heard Ld. Advocate for the complainant.
It is stated that the complainant on the basis of an advertisement in the newspaper floated by the opposite party for selling flats/apartment, contacted him over phone. In reply the opposite party informed the complainant to pay a sum of Rs.1,05,000/- (Rupees one lakh five thousand) only as an advance to show the genuineness to purchase the apartment and also assured that if the complainant does not like the apartment, the opposite party will refund the amount to the complainant. On 04.05.2023 the complainant paid Rs.21,000/- (Rupees twenty one thousand) only to the opposite party. The opposite party took him to a building at Joka but complainant did not like it. Thereafter the complainant on 05.05.2023 further paid a sum of Rs.84,000/- (Rupees eighty four thousand) only by cheque to the opposite party. The opposite party on 06.05.2023 took him to Rajarhat area and after visit of another construction in Rajarhat area the complainant disliked it and asked the opposite party to refund the amount which he paid as mentioned above. As the complainant disliked both the constructions, he decided not to buy any apartment from the opposite party and accordingly sent an e-mail on 14.05.2023 at 14:01 hours to opposite party stating as follows:
‘Hello Madam,
I am Sanjib Dey Roy, I have booked a flat of your project DTC Swajan Joka. Due to some problems I can’t purchase this flat of your project, that’s why please cancel my booking and refund the balance amount as soon as possible.
Thank you.’
On the same day the opposite party sent a reply through e-mail stating that as per the booking application signed by the complainant, the amount of Rs.1,05,000/- (Rupees one lakh five thousand) only will be forfeited and the said booking application was sent as attachment with the above e-mail. It is alleged by the complainant that in spite of demand of the complainant to refund the money, the opposite party did not pay any heed to it. The complainant issued a notice upon the opposite party through his advocate but despite receiving such notice the opposite party has not sent any reply till date. As the opposite party has failed and neglected to refund the amount of Rs. 1,05,000/- (Rupees one lakh five thousand) only to the complainant without assigning any reasons, the complainant is suffering from highest mental agony, mental pain, anxiety and tension and has been compelled to file this case on the prayer of refund of the amount he paid to the opposite party and compensation of Rs.10,00,000/- (Rupees ten lakhs) only for cheating and harassment cost to the complainant.
At the very outset, we would like to mention that though in paragraph 7 the complainant mentioned that he annexed the Bengali version of paper as annexure ‘A’ to the complaint application but no such Bengali version of paper has been annexed by the complainant as annexure ‘A’. On the other hand a photo copy of a single page disclosing schedule of payment of tower T-1 for super built up area 1460 sq. ft. corresponding carpet area 922 sq. ft. signed by the complainant and one Mithu Dey Roy has been annexed as annexure ‘A’. This annexure ‘A’ does not reveal the detail description of the property or the name of opposite party. From the averment made in the complaint application reveals that allegedly the complainant contacted the opposite party over phone to purchase an apartment and the opposite party showed him apartment at Joka as well as at Rajarhat area. Nowhere in the complaint application it has been mentioned that both the apartments are under construction rather the averment made in the complaint and the language of the e-mail send by the complainant to opposite party suggests that the complainant was interested to purchase a constructed flat from the opposite party. From the photo copy of bank statement we find that account no.20058772313 is account of one Abhi Dey Roy. From this account Abhi Dey Roy on 04.05.2023 paid a sum of Rs.21,000/- (Rupees twenty one thousand) only to opposite party. Another account being savings bank account no.10434187672 stands in the name of Mithu Dey Roy. It appears that on 06.05.2023 a cheque no.230740 of State Bank of India for sum of Rs.84,000/- (Rupees eighty four thousand) only has been submitted and debited but there is no mentioned of name in whose favour the said amount has been debited from the account of Mithu Dey Roy.
Be that as it may, this Abhi Dey Roy and Mithu Dey Roy are not parties to this case.
From the e-mail dated 14.05.2023 of the complainant it is crystal clear that the complainant cancelled the booking to purchase the flat of the opposite party’s projects due to some problems. The complainant has not specifically mentioned any defect in the construction of the projects of the opposite party. The complainant has not stated in a single line that the opposite party is liable in any way for deficiency of service. Moreover the purchase of a constructed flat does not come under the purview of section 2(42) of the Consumer Protection Act, 2019.
If the complainant paid any amount to the opposite party, the jurisdiction to get refund of the amount lies with the Civil Court.
This Commission lacks jurisdiction as the facts and allegations made in the complaint application does not come under the purview of the Consumer Protection Act, 2019. Therefore the complaint application is liable to be rejected as not maintainable in law.
Hence, it is
O R D E R E D
that the complaint application be and the same is dismissed as not maintainable in the eye of law.
Dictated and corrected by me
….........................
President
