FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The petition of complaint is filed by the complainant U/s12 of CP Act, 1986 as amendated up date.
The fact of the case in brief is that the complainant applied for purchasing a residential flat at ECO Homes at Mouza Uttar Gazipur, PS Kashipur, Dist. 24 pgs South in response to the advertisement of OP-2 published in a daily newspaper. The complainant along with prescribed application dated 21.01.2016 paid the application money of Rs. 4,09,377/- only on 21.09.2016 through net banking EFT No. 21160123392043 vide receipt No. MR- GCEH/01284/15-16 against application No. B-GTCH/00509/15-16 for booking flat No. H-5-T-7 on the 3rd floor in Block H, Tower No. 05 at the aforesaid ECO Homes housing complex, excluding service tax applicable at that time. The total consideration of the said flat and garage was of Rs. 17,08,000/- (Rs. 15,08,000+ 2,00,000/-).
It is further stated that the OPs acknowledged the acceptance of the booking money paid by the complainant for the flat in question. Thereafter, on 20.10.2016 the complainant entered into an agreement with the OPs for the purchase of the above mentioned residential flat at ECO Homes complex, comprised with the Tower No. 5, Block No. H bearing Unit No. H-5-T-7 on the 3rd floor measuring about 580 sq. ft. of super built up area along with car parking space.
It is further stated by the complainant that he made several verbal enquires regarding the progress of construction work and also visited the office of the OPs. The OPs assured him about the satisfactory progress of the project and of handing over the possession of the said residential flat in question in due course of time. On 15.03.2019, the complainant along with her husband visited the alleged sites of the proposed housing project of the OPs and became surprised and found that there was no sign of any construction work. Thereafter, the complainant sent a lawyers notice to the OP-1 on 01.04.2019 demanding the refund of the allotment money but the OP-1 did not response to that lawyers letter.
It is further alleged by the complainant that the OPs are guilty of worst stroke of unfair trade practice and they also practicing fraud upon the complainant. They cheated the complainant and they did not pay any heed to the complainant’s request which is considered as deficiency in service on their part for which, the complainant suffered monetary loss amounting to Rs. 4,09,377/- only.
Hence, the instant petition of complaint is filed by the complainant before this forum with a prayer to give direction to the OPs to refund the application money of Rs. 4,09,377/- only and also to give direction them to pay interest on the said amount @ 18 % p.a. from the date of payment till realisation and also give direction to the OPs to pay exempary damages of Rs. 5,00,000/- only for the agony, anxiety and extreme suffering of the complainant due to fraud practice by the OPs upon her along with litigation cost of Rs. 50,000/- only.
The OPs 1 and 2 have contested the claim application by filing a WV denying all the material allegations levelled against them.
It is the case of the OPs that the petition of complaint is bad in law and also barred by limitation. The complainant has filed this petition of complaint by suppressing the material fact and the complaint is baseless false and fabricated.
It is denied by the OPs that the complainant ever made contact with them or she visited the office of the OPs. It is also denied that the complainant ever visited the site of the project, rather the complainant has failed to comply the terms and conditions mentioned in the agreement for sale dated 20.10.2016, rather she has miserably failed to pay consideration amount in time and she filed this case before the grace period for handing over the possession of the unit in question.
It is further stated by the OPs that the delaying in handing over the possession of the concerned unit has been owing to intervening Force Majeure events which were beyond the control of the OPs. The demonetisation and non availability of paper money also cause of the further delay. The scarcity of labour is also another factor which directly affects the development of the project work. So, it is denied by the OPs that the complainant has suffered tremendous in convenience or mental agony due to deficiency in service and unfair trade practice of the OPs rather there was no deficiency in service on the part of the OPs.
It is also the case of the OPs that the complainant is not entitled to get compensation of Rs. 5,00,000/- along with litigation cost of Rs. 50,000/- and refund of earnest money of Rs. 4,09,377/-.
As per OPs case, the complainant has no cause of action to file the case. Thus, the case is liable to be dismissed with cost.
In view of the above stated pleadings, the points of consideration are as follows:-
- Is the case maintainable in its present form and law?
- Has the complainant cause of action to file the case?
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get reliefs as prayed for.?
- To what other relief or reliefs is the complainants entitled to get?
Decision with Reasons.
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
On a close scrutiny of materials on record, it appears that the parties to this case are residing and ruining their business within the jurisdiction of this forum. The case is well within the territorial jurisdiction of this forum and the valuation of this case is also well within the jurisdiction of this forum.
From the WV as filed by the OPs 1 and 2, it is admitted fact that the complainant made an application for the purpose of purchasing a flats/unit at Eco Homes project of the OPs measuring about 580 sq. ft. super built up area in tower No. 5 at Mouza-Uttar Gazipur, PS-Kashipur, Dist. 24 pgs South at a total consideration of Rs. 17,08,000/- from the OP-2, the developer/seller . it also admitted fact that out of total consideration amount the complainant made part payment of Rs. 4,09,377/- to the OP-2 as earnest money through net banking EFT No. 21160123392043 and against such payment the OPs issued a money as per receipt being No. MR- GCEH/01284/15-16 dated 21.01.2016. From the content of petition of complaint and WV filed by both the parties and also from the evidence on record. It is also revealed that the parties to this case have entered into an agreement for sale in respect of the flat in question on 21.10.2016.
From which it is held by this forum that on and from 20.10.2016 when the OPs received the part consideration money of Rs. 4,09,377/- out of total consideration of Rs. 17,08,000/- from the complainant in respect of the flat in question since then the consumer and service provider relationship in between themselves has been established.
From the WV of the OPs, it is also evident that they admitted the position that in spite of expiring of the stipulated period they could not be able to handover the flat in question to the complainant rather they did not response the lawyers notice dated 01.04.2019, sent by the complainant. They were kept mum over the issue and they took several baseless plea for delaying the handover of the possession of the flat in question to the complainant and neither in the evidence nor in their WV they ever stated the specific date and time when they could be able to handover the possession of the flat in question on receipt of the balance consideration amount which is caused sufficient cause of action for the complainant to come before this forum for getting relief and she rightly filed the case before this forum against the OPs. Such conduct of the OPs should be termed as deficiency in service on their part because they could not be able to handover the possession of flat in question to the complainant within the stipulated period rather they tried to maling the complainant by taking several plea but at the fag end of the day they could not be able to deny the fact that they received the earnest money from the complainant of a sum of Rs. 4,09,377/- for the flat in question measuring about 580 sq. ft. area at their ECO Homes situated at Mouza- Uttar Gazipur, PS Kashipur, Dist-24 Pgs South project out of the total consideration money of Rs. 17,08,000/-.
Hence, in view of the discussion made above, it is crystal clear that the complainant is a consumer and the OPs are the service provider. it is also proved that the complainant paid Rs. 4,09,377/- as part consideration to the OPs in respect of purchasing the flat in question at ECO Homes measuring about 580 sq. ft in tower no. 5 ECO Homes at Mouza Uttar Gazipur, PS Kashipur, Dist. 24 pgs South out of total consideration of Rs. 17,08,000/- . It is also proved beyond all reasonable doubt that the OPs failed to handover the possession of the flat in question within the stipulated period as per agreement for sale and even on repeated request by the complainant they did not refund the earnest money received by them. Such conduct of the OPs is considered by this forum as deficiency in service and unfair trade practice which caused financial loss, mental pain and agony to the complainant.
Under such circumstances, this forum has no hesitation to held that the complainant being a consumer could be able to prove her case beyond all the reasonable doubts and is entitled to get the relief as prayed for.
All the points are thus considered and decided in favour of the complainant
The case is properly stamped.
Hence,
Ordered
That the case be and the same is decreed on contest with cost of Rs. 5,000/- against OPs 1 and 2.
The complainant do get the decree as prayed for.
The OPs 1 and 2 are thus directed to refund the application money of Rs. 4,09,377/- only to the complainant either jointly or severally along with interest @ 9 % p.a. from the date of filing of the case till realisation within 45 days from this date of the order.
The OPs 1 and 2 are further directed to pay compensation to the complainant of Rs. 1,00,000/- only for agony, anxiety and suffering of the complainant either jointly or severally within 45 days from the date of this order along with litigation cost of Rs. 30,000/-.
If the OPs 1 and 2 failed to comply the decree within the stipulated period, the complainant will be at liberty to execute the same as per law.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the Commission for perusal of the party.
