In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/194/2022.
Date of filing: 16/09/2022. Date of Final Order: 13/11/2024.
Shri Joyjit Mallick,
son of Late Siddheswar Mallick,
resident of "SMRITI", Joraghat Road,
P.O.& P.S. Chinsurah, Dist.-Hooghly, Pin-712101. …….Complainant
-Versus -
The Managing Director,
SPL Estates Private Limited,
having its registered office at GN-37/2, 7th Floor,
Victoria Park, Sector V, Salt Lake City,
Kolkata-700091, P.S- Electronic complex. …..... Opposite Party
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that pursuant to an advertisement and representation of the construction project namely, "SUNSHINE ONE" @ SHRIRAM GRAND CITY, a project of SPL Estates Private Limited and relying upon the goodwill of the Construction Properties (Shriram Properties) the complainant along with his family visited the under construction project site and applied for "allotment application option" of the grand project.
That along with the right renounced forms, the complainant has credited an amount of ₹50,000/- as Application Fees on electronic mode via S.B.I. Debit Card dated 25th September, 2021 in the account of the SPL Estates Private Limited to register his option for Sunshine One 3E-9-L, 3 BHK on having a promise to have refund from the side of the opposite party the same if the complainant would be unwilling to finalize the deal afterwards and by Allotment letter dated 8th October, 2021 being Ref. No. SSI/2021-22/AL04832 the opposite party acknowledged the receipt of the amount.
That the complainant entered into an agreement through a allotment application form dated 25th September, 2021 with the opposite party Builder to purchase an apartment in the said project. It is mentioned that neither the date of application nor any other details of the project along with the attestation/signature of any of the representatives of the project has been filled in the allotment application form except the details of the complainants and signature thereon.
That after the said transaction, the respective agent of the opposite parties' through whom the deal has been initiated dialed the complainant over telephone after 3 to 4 days of the booking and uttered that the flat which has been promised to be allotted to the complainant could not be possible to provide due to some mis- happening rather they would provide a flat of same measurement in some other place in the same mega-city project and demanded further requisite payment for the sale agreement to finalize the deal from the complainant. The complainant got astonished on listening the same.
That "in the wake of the COVID-19 pandemic, businesses witnessed a massive hit, and the economy experienced a financial meltdown. Consequently, people have been sceptical of undertaking hefty financial liabilities. Barring a few deals that were on the verge of finalization, residential conversions had witnessed a significant drop, courtesy of the pandemic. Moreover, many home-buyers resorted to deal cancellations even after the payment of the token amount". The complainant refused to make further payment as his financial condition also became the worst after whole nation lockdown as well as some other genuine reasons and also requested the representative not to finalize the deal and demanded from the agent to refund back the application money in favour of the complainant. The representative of the SPL Estates Pvt. Ltd. assured the complainant to refund the application money and settle the claim after consulting with the higher authorities regarding the same.
That after few days when no response came from end of the opposite party, the complainant out of anxiety rang the opposite party over telephone and again demanded refund of the aforesaid amount. But then also his asseveration was neglected by the opposite party.
That again out of perturbation the complainant vide a letter dated 19.10.2021 requested and demanded the opposite party to refund the said application amount of ₹50,000/- (Rupees Fifty thousand only) stating the reasons therein but till date the opposite party did not reply nor even refunded the said application money.
That unless a buyer is willfully trying to sabotage the deal, developer are open to refund the booking amount, as long as the reason behind the cancellation is genuine and legitimate and relying upon this hope from then onwards the complainant made several attempts to contact the opposite party regarding the matter but the opposite party is intentionally lingering to refund the same by some tactical utterance testing the patience of the complainant.
That it is pertinent to mention that the complaint letter dated 19.10.2021 was also forwarded by the complainant to the "Assistant Director", Office of the Consumer Affairs & Fair Business Practices, Govt. Of West Bengal, Hooghly Regional Office, NNICE Building (Gr. Floor), Joraghat, P.O. & P.S. Chinsurah, Dist. Hooghly, Pin-712101. The following Office sent a reply vide Docket No. 475 dated 25.10.2021 that the complaint was beyond the territorial jurisdiction of the office and it is within the territorial jurisdiction of the "Assistant Director, Office of the Consumer Affairs & Fair Business Practices, Subanna, Salt Lake, Kolkata- 700064.
That again the complainant sent a letter dated 22.11.2021 to the above named office of the "Assistant Director", Office of the Consumer Affairs & Fair Business Practices, Joraghat, for resolving the dispute but the said office again sent a reply vide Docket No. 555 dated 30.11.2021 stating that the complainant left with two options regarding the dispute either he has to lodge a consumer grievance at the Office of the "Assistant Director", Office of the Consumer Affairs & Fair Business Practices, Subanna, Salt Lake, Kolkata- 700064 or file a consumer case before the District Consumer Dispute Redressal Commission, Hooghly. According the Office of the Consumer Affairs & Fair Business Practices, Joraghat forwarded the complaint before the "Assistant Director", Office of the Consumer Affairs & Fair Business Practices, Subanna, Salt Lake, Kolkata-700064.
That even after so many correspondences the opposite party moreover sent a demand letter dated 28.02.2022 amounting to 5,38,152/- for allotment money and agreement amount to the complainant.
That being shocked and surprised of this illegal demand of the amount even after communicating to cancel the deal and the reluctant behavior of the opposite party, the complainant having no other alternative left but to take necessary legal advice and action against the opposite party.
That accordingly, the complainant through his Ld.' Advocate sent a legal notice to the opposite party dated 13.07.2022 which was received on 14.07.2022 stating the grievances and requesting him to refund the application money of ₹50,000/- but the opposite parties had neither sent a reply nor made any attempt to comply with the request.
That upon the initiative of the Office of the Consumer Affairs & Fair Business Practices, Joraghat to resolve the dispute, the "Assistant Director", Office of the Consumer Affairs & Fair Business Practices, Subanna, Salt Lake sent a letter 07.04.2022 to attend the tripartite meeting dated 12.05.2022 between the complainant and the opposite party to resolve the dispute through the process of mediation. But unfortunately, the complainant due to some unavoidable circumstances could not been able to attend the meeting.
That subsequently the complainant vide a letter dated 15.07.2022 requested the aforesaid the Assistant Director of the Office of Consumer Affairs, Subanna to fix another date for the tripartite meeting and the Assistant Director has been pleased to fix another date i.e., on 16.08.2022 to the tripartite meeting between the complainant and the opposite party to resolve the dispute through the process of mediation. In the meeting also the opposite party were rigid and reluctant enough to annul the deal and refund the application amount to the complainant and as such the Office has been pleased to drop the case and gave liberty to the complainant to move before the D.C.D.R.C., Hooghly.
Complainant filed the complaint petition praying direction upon the opposite party to refund Rs. 50,000/- along with interest till date and to pay a sum of Rs. 2,50,000/- along with 10% interest for suffering mental loss and agony and to pay a sum of Rs. 10,000/- towards litigation cost.
Defense Case:- The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that The Opposite Party is constructing a Project Sunshine One, a multistorey complex with world class amenities and facilities. The Opposite Party has been trying to provide the best and latest amenities to its customers at the lowest rate possible. The Complainant decided to book a flat in the Project and has gone through and understood the entire Application Form along with the TOA (Terms of Application).
On knowing all the facts the application was made by the Complainant for allotment of a Flat at the Opposite Party's project Sunshine One, Shriram Grand City. The application contained a detailed Terms and Conditions attached therewith which was duly examined, accepted and signed by the Complainant before making the Application to the Opposite Party.
On making such application by The complainant and agreeing to be bound by the terms and conditions attached to the said Application, the Opposite Party relying on acceptance of the Application Form by the Complainant also issued a Provisional Allotment letter dated 08.10.2021 to the Complainant. The flat was chosen by the Complainant. The Complainant duly received and accepted the said Provisional Allotment Letter along with its terms and conditions.
In terms of the said Application Form 25.09.2021 and also the Provisional Allotment Letter dated 08.10.2021 issued by the Opposite Party, the Complainant was required to make payment in accordance with the timelines agreed therein otherwise the Application fee as mentioned in TOA shall be forfeited and the Booking will remain cancelled. It is an admitted position that the said timelines have not been adhered to by the Complainant and he has failed to make payment of the subsequent instalments or get an agreement for sale executed/ registered which was also necessary in terms of the agreed terms.
Timely payment was the essence of the said allotment letter and the Complainant was required to make payment in accordance with the time line agreed therein. It is an admitted position that the Complainant have defaulted in making payment as per the terms and conditions attached to the application form as also the allotment letter.
The Complainant being fully aware of the aforesaid terms and conditions has attached to any application for allotment being made by any prospective buyer and have agreed to buying themselves to such terms and conditions, made an application to the Opposite Party for allotment of a flat at the Opposite Party's project 'Shriram Grand City Sunshine One' The application form itself contained a detailed terms and conditions which were attached therewith and it is only upon the due examination, acceptance and signature as a token of such acceptance Opposite Party.
The Opposite Party's are constructing residential complex with world class amenities and facilities. The Opposite Party have been trying to provide the best and latest amenities to its customers at the lowest possible rates.
For providing such facilities, the Opposite Party, even prior any sale materializing, have to incur various heavy costs such as advertisements, brokerage, legal due diligence support, site visits, administrative support etc. which costs are not collected from any prospective customer. Moreover, it is well known in the real estate industry that various customers posing as client make booking of flats just to resale such booking and on difference of pricing. Therefore, in order to meet such costs and also ensure that there is no unfair trade practice undertaken against the Opposite Party, it has been made necessary by the Opposite Party that a forfeiture clause is included in the event of any cancellation after a booking has been accepted. Such terms and facts are made known to all customers before any booking is made so that an informed decision is taken by any customer and the efforts and expenses post booking by the Opposite Party are not misused.
It is on the aforesaid terms and conditions being accepted by the Complainant that the Opposite Party issued a provisional letter dated 8th October, 2021 to the Complainant.
It is also a matter of fact that the Opposite Party has sent ample reminders calling upon him to make payment of the balance dues despite which he failed. Finding no other alternative the Opposite Party have terminated the provisional allotment and forfeited the amount paid by the Complainant for booking the flat. Such forfeiture is in accordance with the agreed terms and conditions and as per the pre-existing laws.
That the application form has been duly filled and accepted by the parties and it is on this basis that the complainant made payment of the application money of Rs. 50,000/- and it is on this basis that the complainant obtained the allotment letter. It is therefore, mischievous on the part of the complainant to make false, frivolous and incorrect allegations with an attempt to distort the true and correct position. It is noted that the application form being filled up by the complainant, any lapses can only be attributed to the complainant himself and not to anyone else. Since the said application form was submitted by the complainant, the same did require any signature of the opposite party. The fact that the complainant is aware of the date of the said application is evident in the paragraph under reference when the complainant himself permits the same to be dated September 25, 2021 and the complainant has deliberately suppressed that the application was made by the complainant along with his wife, Smt. Chandana Mullick who had also signed the application form after filling of the date.
The Opposite Party had been ready and willing to enter into the agreement for sale in respect of the flat which had been booked by the Opposite Party, and in respect whereof the Opposite Party had issued the allotment letter. The demand request/ reminders sent by the Opposite Party also confirmed such position. The Opposite Party deny that neither the Opposite Party nor their representative demanded any further money or assured any refund and the application made by the complainant after the Covid-19 situation has largely improved and the position has returned normalcy, the allegations of Covid-19 pandemic being a reason for cancelling the flat is neither tenable in law or in fact. So, the complaint case should be dismissed with costs.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are clubbed together and taken up for discussion jointly at first.
Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chinsurah, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.
The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two points of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.
On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that the complainant has submitted application form to the Op and also deposited Rs.50,000/- as application fees and subsequently the OP issued allotment order. But fact remains that the complainant due to pandemic situation of the year 2000-2021 and due to financial stringency declined to purchase the said flat which was intimated to the Op by the complainant. It is also revealed that the complainant tried to make amicable settlement through the office of the Consumer Affairs and Fair Business Practices, Govt. of West Bengal Hooghly regional office NNICE Building Joraghat P.O- & P.S- Chinsurah Dist-Hooghly but the said process for amicable settlement failed to get success due to noncooperation of the OP. After going through the material of this case record it is revealed that the OP has neither refunded the said application fees nor initiated any civil cases for termination of the contract. On the background of this position the OP adopted the defence alibi that as per terms and conditions the OP has forfeited the application fees. In this connection it is important to note that the decision of the OP for forfeiting the application fees is a unilateral decision and such decision is against the principle of natural justice. So the OP is duty bound to refund the application fees of 50,000/- to the complainant alongwith interest @Rs.9 % per annum. But fact remains that the complainant has failed to produce any corroborative evidence in respect of his claim of compensation of Rs.2,50,000/- and also this District Commission finds no reason to allow the said prayer.
A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.
In the result it is accordingly
ordered
that the complaint case being no. 194 of 2022 be and the same is allowed on contest but in part against O.P.
It is held that the complainant is entitled to get refund of Rs.50,000/- alongwith interest @ Rs.9 per cent per annum from the OP and also entitled to get litigation cost of Rs.5000/-. OP-1&2 are directed to pay this said amount within 45 days from the date of passing of this judgment. Otherwise the complainant is given liberty to execute this award as per law.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
