Order-12.
Date-18/05/2015.
Complainant Prem Kumar Pradhan by filing this complaint submitted that being attracted by the advertisement of the op, the complainant was interested to purchase a flat at Larica Township opposite to Loknath Temple, Barasat, P.S.- Barasat North 24 Parganas consisting of 3 room measuring 646 sq. ft. super built up being flat No. B18/301 on the 2nd floor from the op/developer for a total consideration money of Rs. 7,06,000/- against purchase of the flat and for the same the complainant did not enter into any agreement but only on the basis of a brochure the op assured the complainant to make one agreement.
Fact that complainant paid Rs. 5,000/- as application money vide money receipt no. 4121 and allotment money of Rs. 20,000/- vide money receipt 4122 dated 04.11.2009 and the complainant was instructed to pay the remaining amount of Rs. 6,81,000/- in 36 installments of Rs. 14,750/-.
Initially the flat was booked in the name of the complainant’s son who used to pay the installment and on completion of payment of installments along with all the service tax of Rs. 18,227/- and late fine of Rs. 20,880/- and other payments. The last payment was made on 10.12.2012 and later on the complainant’s son named Ravi Kumar Pradhan transferred the booked flat in his father’s name i.e. the complainant Prem Kumar Pradhan and the same was granted on 08.11.2013.
Many times the complainant went to the office of the op but they simply made concoted stories and made false promises and just passed time. As per certificate allotment the possession of the booked flat was to be given within 3 years from the date of booking and the said complainant booked the flat on 04.09.2009. But since then op failed to hand over the possession of the flat and as such the op committed gross deficiency in service and adopted unfair trade practice for rendering services to the complainant and for which op is liable to refund the entire consideration money of Rs. 7,06,000/- along with 18% interest p.a. from the date of deposit to till the date of actual payment.
About such sort of negative approach and deceitful manner of service, complainant suffered both physically and mentally and also suffered monetary loss as such op is liable to pay compensation etc. and also liable to repay the entire amount with interest to the complainant and in the circumstances, complainant filed this complaint for redressal.
On the other hand op by filing written statement submitted that some group of flat owners of Larica Township Social Welfare Association lodged a complaint before the Chairman Barasat Municipality and in the office of ADM L.R. Barasat vide letter dated 07.01.2013 against the op for filing of water body and they also filed similar complaint to West Bengal Pollution Control Board, Paribesh Bhawan at Salt Lake Kolkata for enquiring of NOC and alleged that most of the condition imposed in the NIC are grossly violated by the op and said group of flat owners filed a complaint on 10.02.2014 before the Additional District Magistrate (L.R.), Barasat challenging the illegal filling of water body. Further they filed a complaint to D.M. Barasat North 24 Parganas alleging similar type of complaint.
In pursuant of the complaint of the aforesaid persons the Block Land & Land Reforms Officer (B.L. & L.R.O) to look into the matter and do needful. Thereafter many enquires were held by the B.L. & L.R.O. and other officers and on enquiry it was found that all the allegations are baseless and thereafter construction was started.
Truth is that allotment certificate was issued on 05.11.2009. But complainant was aware of the above forged majure cost. But at this stage op has submitted that when the present construction is not completed and it will take sometime and to provide similar flat with same specification of 3 room apartment but in different building instead of building No. B18/301, 2nd floor to the complainant and to deliver possession of the booked flat of the complainant by the end of this year 2015 or to refund the entire amount of Rs. 7,06,000/- along with normal bank interest to the complainant.
This offer is made by the op on the ground that op left no stone unturned to complete the construction and handover the possession of the said flat to the complainant despite such series of obstruction in the construction work.
In fact the op has alleged that they suffered loss due to halt of construction process as cropped up under the wheel of administration by the insistence of some class of people to gain wrongfully and it is unfortunate to bear the loss on delayed construction on the other hand they could not deliver the flat to the customer in time which aggrieved the customer and op prayed for allowing their offer in this regard and prayed for dismissal of this case.
Decision with reasons
On proper consideration of the entire materials on record and also considering the complaint and written version and further considering the document issued by the op to the complainant, it is clear that initially complainant took a flat of the op and op issued certificate of allotment being No. 2019 and 2198 building falt No. B18/301 of 2nd Floor, the total price was fixed at Rs. 7,06,000/- and out of that application money of Rs. 5,000/- and allotment of Rs. 20,000/- were paid and balance amount of Rs. 6,81,000/- shall be paid in 36 equal installments @ Rs. 14,750/- each and Rs. 50,000/- each payable on or per 10th, 20th and 30th installments.
Truth is that subsequently the said certificate allotment was transferred by Ravi Kumar Pradhan in favour of Prem Kumar Pradhan and that was rectified by the op and that is admitted fact. It is also admitted by the op that complainant has paid the entire amount as per allotment letter. But op tried to convince that due to some problem complaint filed by the local people against such construction and the matter was held initially from all the offices and it was found that in respect of that construction, there was no illegal act of water body was filled up and the construction was going to be constructed and some NOC Certificate were collected and now the construction has been started. But it is admitted that allotment letter was issued on 05.11.2009 and within 3 years the possession would be delivered in favour of the allottee as per allotment.
Fact remains that in this case after issuance of allotment letter no agreement was executed by the op in favour of the complainant. But admitted fact is that op has offered that the present construction may be completed by the end of 2015 when op shall have to deliver the possession of the flat to the complainant, or op is willing to refund the entire amount of Rs. 7,06,000/- along with normal bank interest to the complainant and another offer is made by the op in the written statement if complainant wants to get a similar type of flat, in that case, op can deliver the possession in respect of such type of possession in different building to present complainant.
Fact remains that after considering the above fact, it is clear that op has failed to give delivery of possession of the disputed flat after receipt of the entire amount of Rs. 7,06,000/- In this context we have gathered that cash amount was paid by the complainant and op is not in a position to deliver the possession of the flat till completion of the same at the end of 2015. But fact remains that op has offered that similar type of flat shall be handed over to another tower. But it is to be mentioned that it is settled principle of law that change of flat without consent of the complainant is indicating of arbitrariness and in the complaint, complainant has specifically mentioned that he is willing to get disputed flat, which has not been delivered as per allotment agreement and no such offer was ever made by the op to the complainant during payment of the installments by the complainant till its last payment and moreover complainant has lost his hope to get his flat and for which complainant refused to accept the flat as offered by the op.
But most interesting factor is that in spite of issuing allotment letter and receipt of entire amount of Rs. 7,06,000/- by installment to the complainant, op did not execute agreement to sale. Truth is that the construction of the present flat is at the womb of the construction. Then it is clear that it is no doubt a serious deficiency in service on the part of the developer op and such sort of act on the part of the op is also unfair trade practice which cannot be continued by the op in such a fashion.
Truth is that complainant waited for three years up to 2012 and discharged his duty, responsibility, liability as per allotment letter by paying the entire consideration amount of Rs. 7,06,000/-. But op was sitting idle and did not inform any such matter to the complainant or did not offer such an offer anytime but the op after appearance in the written version expressed it and such sort of act is no doubt unfair trade practice. When that is that fact, then we are convinced to hold that complainant is not entitled to get the flat at once. But op already offered the refund of entire amount by paying simple bank interest. But considering the unfair trade practice and also the harassment and sufferings caused by the op to the complainant and due to unfair trade practice on the part of the op, complainant is entitled to get back the amount along with compensation and further litigation cost etc. and in this regard we have relied upon one judgement passed by SCDRC, West Bengal passed in SC Case No. FA/25/2010 passed on 12.11.2014.
In the result the complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against the op.
Op is hereby directed to refund the entire amount of Rs. 7,06,000/- and further to pay compensation of Rs. 4,00,000/- for deceiving the complainant in such a manner and for causing mental pain and agony and harassment and also financial loss of complainant and further op shall have to pay Rs. 50,000/- as penal damages for adopting unfair trade practice and to control the same punitive damages is imposed and it shall be deposited to the Forum.
Op shall have to pay Rs. 7,06,000/- price amount, Rs. 4,00,000/- as compensation and litigation cost of Rs. 10,000/- and in total Rs. 11,16,000/- to the complainant within 30 days from the date of this order and failing which interest @ 9% p.a. shall be accrued on the entire amount from the date of default till its full realization.
Further op shall have to pay penal damages within 30 days and if it is found that op is unwilling to comply the order of this Forum, in that case, penal interest @ Rs. 200/- per day shall be imposed upon him till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum. But even if it is found that op is reluctant to comply the order, in that case op shall be imposed further penalty and fine u/s 27 of C.P. Act 1986 for which op is liable for that.
