DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

MUCHIPARA, BURDWAN.

Consumer Complaint No  244 of 2014

Date of filing:  09.12.2014                                                                        Date of disposal: 18.01.2016

Complainant:               Subrata Kumar Ray, Flat No. B1, Bijoy Apartments, 2^nd Floor, Saptarshi Park, Shankarpur (West), Bidhan Nagar, Durgapur, Distt: Burdwan, West Bengal – 713 206.

-V E R S U S-

Opposite Party:    1.    The Managing Director, Jain Group Projects Private Ltd., Dream Eco City, 44/2A Hazra Road, Kolkata, West Bengal – 700 019.

2.    The Project Manager (Jain Group Projects Pvt. Ltd.), Dream Eco City Project, Khant Pukur, Muchipara, Durgapur – 713 212, Dist: Burdwan.

Present:        Hon’ble President: Sri Asoke Kumar Mandal.

                        Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:      Ld. Advocate, Subrata Ghosh.

Appeared for the Opposite Party:  Ld. Advocate, Sumit Roy.

J U D G E M E N T

This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the Ops as the Ops have arbitrarily intended to deduct 10% of the apartment cost as penal charges in case of cancellation of the booking questioned flat.

The brief fact of the case of the complainant is that he booked a flat with the ops project Dream Eco City, Durgapur for a consideration of 39, 81,114=00 bearing the flat no. 3A, 3^rd Floor, Block-9 measuring an area of 1285 sq. ft. in a building constructed by the ops on the land situated at Muchipara, Durgapur. Out of the total cost of the flat he paid Rs. 7, 50,900=00 till the date of filing of this complaint against receipt and provisional allotment letter respectively. Initially at the time of booking the staff of the ops assured him towards payment scheme, timely possession and being satisfied with their verbal assurance the complainant entered into an agreement with the ops. But unfortunately all the assurances made by the ops turned out to be false and he came to know that the ops were selling the flats by making representation and on false assurances. Not only that there were several discrepancies by and between the paper and their verbal statement. Though the same representation and false assurance was notified to them but no resolution has been provided to him. Initially the complainant along with his wife had booked a 3-BHK flat in Dream Exotica, Madhyamgram, Kolkata through their Marketing Agent M/s. N.K. Realtors on December 31^st 2013 by making payment of Rs. 1, 03,090=00 towards booking amount and the ops accordingly issued receipt on 02.01.2014. Subsequently the agreement was signed on 05.01.2014 and at that point of time he made payment of Rs. 6, 47,810=00 through NEFT transaction, thus the total amount was paid by him to the ops till now is Rs. 7, 50,900=00. Thereafter the complainant visited the office of the ops on 03.4.2014 at Hazra Road requesting them to change the location of the flat from Dream Exotica, Madhyamgram to Dream Eco City, Durgapur, Burdwan. After getting notional approval from the ops the complainant wrote an application on plain paper regarding his demand on the very same day wherein he requested for transfer the money deposited by him beforehand towards the project Dream Exotica to Dream Eco City, Durgapur account. After that the Executive of the ops filled up the name of the complainant as well as his wife in their standard format for allocation of a 3-BHK flat in Dream Eco City and got it signed by the complainant on the very same day which was yet to be signed by his wife since she was not present at their office at that time. The receipt was issued at a very later stage i.e. on 22.4.2014. After getting receipt request was made by the complainant for fresh agreement immediately in respect of the Dream Eco City, so that he could carry it back to Durgapur as his wife’s signature was also required being an applicant. So the agreement for Dream Exotica in which he entered became irrelevant because the Dream Eco City is a different project of different developer, however the documents could not be ready on that date. The ops promised that the complainant will get the agreement on the next day positively. On 07.4.2014 the complainant contact with the ops as he did not received the same as per promise but after conversation he became very shocked due to the reply of the ops as the complainant was asked to apply once again for reallocation of the flat and for transfer of the deposited amount of Rs. 7, 50,900=00 through e-mail which the complainant followed immediately. Thus the date of application changed from 03.4.2014 to 07.4.2014. Thereafter some problem cropped up as the ops have failed to deliver the agreement inspite of several assurance made by them for which he and his wife had to face mental pain and trauma in the following manner.

1. Inspite of rigorous follow up the complainant did not receive the copy of the agreement for Dream Eco City flat. Whenever he tried to gather any information as to the status of the agreement, he was presented number of excuses. Being tired the lost his confidence towards the project and therefore on 10.5.2014 he requested for refund of the paid amount to the op. However, to his utter disappointment he did not receive any reply from them inspite of several reminders.
2. The grievance of the complainant is being ignored on some pretext. After a period the Executives of the op stopped responding to the calls of the complainant and whenever they replied the complainant was always provided false assurances that the matter has been forwarded to the concerned authority and it would be resolved really soon.
3. On 03.6.2014 the complainant contact with the ops who assured him that the matter has been resolved and the cheque for refund is ready. He was told by them that the cheque was awaited only to get signature by the Authorized Signatory who was not in town and would return on 20.6.2014. Thus he was told that his grievance will be resolved positively by 21.6.2014 to 22.6.2014.

On 21.6.2014 the complainant received a mail from the op wherein it was mentioned that since his case was a complicated one, it would take some more time to resolve. The Executive of the op had mentioned several reasons for such delay which are all follows:

1. The complainant booked the flat via op’s marketing agent N.K. Realtors in the project called Dream Exotica and the cost of the said flat was for Rs. 37,08,250=00 (flat plus parking). It is submitted by the complainant that at the time of booking the flat in the project Dream Exotica the total cost of the flat was of Rs 33, 58,250=00 and no car parking space was booked by him as per the agreement entered into by the both parties. Thus the claim made by the op towards the cost of the flat including car parking space does not stand and cannot be regarded as valid. Moreover, charging for car parking is illegal. Relying on some case laws the complainant has stated that the parking area whether closed or open is the common area of the society and therefore the developer/builder has no right to charge any amount for the sale or use for car parking space.
2. On the special request of the complainant and subsequent approval the op has waived transfer charges and also given waiver on interest i.e. approximately Rs. 1, 11,551=00 against delay of 533 days. The complainant became astonished to know the transfer charges as mentioned by the op in their e-mail because it was neither mentioned in any of the documents nor discussed with the complainant at any point of time. They have deliberately included this clause just to harass him. The initial booking of the flat in Dream Exotica was on 31.12.2013 and the date of transfer to Dream Eco City from Dream Exotica was on 07.4.2014 though actually it was 03.4.2014.
3. The averment of the op is that they have allotted a fresh unit in the Dream Eco City and the cost of the said flat is of Rs. 39.81, 114=00 including car parking space and other charges. The car parking charges has been shown as Rs. 3,00,000=00 in the provisional allotment letter and the complainant paid Rs. 66,854=00 on 22.4.2014 to the Ops.
4. To the utter shock of the complainant it was stated that as per the clause no. 3.5 of the agreement of Dream Eco City and clause no. 11.1 of Dream Exotica the cancellation charge would be 10 % of the net price i.e. Rs. 39,81,114=00. However, the claim for 10% deduction does not stand good as the booking was cancelled due to inefficiency and failing to send the agreement by the ops even after several reminders. Also the agreement of Dream Exotica and for Dream Eco City as both the projects are different and the developer are also not similar. No agreement was handed over to the complainant by the op for Dream Eco City and hence the deduction clause does not apply. In respect of Dream Eco City agreement the complainant has stated that the said agreement had also not been endorsed by the both parties, therefore, the deduction clause cannot be applicable.
5. On 26.6.2014 the complainant again contacted with the op when he was told it would take a week to resolve the issue.
6. From the above sequence of events it is clear that the op has no intention to refund his money.

The complainant has stated that the deadline to refund the money to his capital gain account was before July 31, 2014 but due to their indifferent attitude the complainant has failed to get refund of the said amount from the op. Being dissatisfied with such attitude he approached before the CA & FBP, Durgapur for his redressal through mediation but no acceptable response was forthcoming from the end of the ops. Thereafter finding no other alternative the complainant approached before this ld. Forum by filing this complaint praying for direction upon the ops to refund the amount paid by him for Rs. 7, 50,900=00 without making any deduction along with interest @16% per annum, Rs. 5, 00,000=00 as compensation due to mental agony suffered by him and litigation cost of Rs. 20,000=00.

The petition of complaint have been contested by the op-1&2 by filing written version contending that initially the complainant booked the flat in Dream Exotica on 31.12.2013 and thereafter they decided not to take the said flat and accordingly booked the flat in Dream Eco City, Durgapur. In the Dream Eco City the cost of the flat was of Rs. 39, 81,114=00 except car parking space and the cost of the car parking space was of Rs. 3,00,000=00 which had been mentioned in the provisional allotment letter and  accordingly the complainant paid Rs. 61,854=00 against receipt on 22.4.2014. Admittedly the complainant has paid in total Rs. 7,50,900=00 towards the cost of the flat but as per   agreement clause no. 3.5 of Dream Eco City and clause no. 11.1 of Dream Exotica the cancellation charge would be 10% of the net price i.e. Rs. 39,81,114=00 or the claim for 10% deduction did not stand good because the booking was cancelled due to the inefficiency of the purchaser but the purchaser has put allegation on the shoulder of the ops because the ops have failed to sent the agreement inspite of several reminders within a period of 35 days. Admittedly the agreement of Dream Eco City and the Dream Exotica are completely different as the two projects are not same and identical and the developers are also different. Inspite of this in view of the abovementioned clause in respect of refund of the amount the ops are entitled to deduct 10% of the net price of the flat. The ops have further stated the Jain Group being one of the most dynamic and admired organization in the real estate sector in Eastern India has successfully ventured by creating series of housing projects at the prominent locations in West Bengal, such as, it had already developed 5-Star Hotel, I.T. Park., Malls and Farm House in Kolkata, Durgapur, Guahati and Siliguri. In the instant case the complainant has paid the amount of the booking money towards Dream Exotica and as per agreement he was agreed and confirmed that he would pay the balance amount within due period but the complainant has miserably failed to make payment of the due amount within due period as mentioned in the agreement. The complainant requested the ops through a letter on 07.4.2014 to transfer his flat from Dream Exotica Madhyamgram to Dream Eco City Durgapur and the ops on special request from him have waived the transfer charges and transferred the amount of Rs. 7, 50,900=00 from the account of Dream Exotica to the account of Dream Eco City on 08.4.2014. The Ops dispatched the agreement for sale for Dream Eco City to the complainant but unfortunately the same was misplaced and thereafter all of a sudden the complainant sent an e-mail on 10.5.2014 requesting them to cancel the booking of the flat in the project of Dream Eco City Durgapur. The ops are ready to cancel the agreement and booking subject to deduction of 10% of net price in view of the agreement clause no. 3.5 of Dream Eco City. Subsequently the complainant was requested to collect the refund cheque from their office after deduction of the cancellation charge but the Ops received a notice from the office of CA & FBP, Durgapur whereby they were directed to appear before the said office as the complainant filed a case against the Ops due to deficiency in service as well as unfair trade practice. As the ops are ready to refund the amount after deduction there is no deficiency in service as well as unfair trade practice on their part and the complaint filed by the complainant is wholly based on vague and frivolous in nature. For this reason prayer has been made by the ops for dismissal of the complaint with exemplary cost.

          The complainant and the ops have filed evidences on affidavits along with several pares and documents in support of their respective contentions. It is seen by us that admittedly the complainant initially booked a 3-BHK flat in Dream Exotica Madhyamgram from the ops on 31.12.2013 by making payment of Rs. 1,03,090=00 towards booking money, agreement was signed on 15.01.2014, at that point of time the purchaser made further payment of Rs. 6,47,810=00, thus the total sum of money paid by the purchaser to the ops is of Rs. 7,50,900=00, the complainant visited the office of the ops on 03.4.2014 requesting them to change the location of the flat from Dream Exotica to Dream Eco City, the complainant made application on this context, accordingly the ops transferred their booking from Dream Exotica to Dream Eco City, the total amount as pair by the purchaser i.e. Rs. 7, 50,900=00 has also been transferred form the account of Dream Exotica to Dream Eco City. The allegation of the complainant is that inspite of making payment of Rs. 7, 50,900=00 in respect of Dream Eco City project the Ops have miserably failed to sent down the agreement for sale till filing of this complaint and for this reason the complainant intended to cancel the booking in the Dream Eco City and prayed for refund of the amount of Rs. 7, 50,900=00 as paid by him. Further allegation of the complainant is that inspite of several written correspondences the ops did not bother to enter into the agreement for sale and when the complainant prayed for refund of the entire paid amount the ops has stated that in view of clause no. 11.1 of the agreement of Dream Exotica and clause no. 3.5 of Dream Eco City they are entitled to deduct 10% of the net price of the flat. The case of the ops is that they are always ready to refund the amount after deduction of the 10% of the net price of the questioned flat as booked by  the complainant, but as the complainant is not interested to refund after said deduction in that context the ops activities cannot be termed as deficient. It is seen by us that admittedly the ops did not sent down the agreement for sale for the Dream Eco City project till filing of this complaint. It is state by the ops is that though they dispatched the agreement for sale at the address of the complainant, it was somehow misplaced. Such contention cannot be entertained because the ops did not place before this ld. Forum any evidence/documents showing that they have dispatched the same at the address of the complainant. Therefore, it can safely be said that inspite of taking Rs. 7, 50,900=00 from the complainant in respect of the Dream Eco City project towards the questioned flat the ops have failed to enter into the agreement for sale as yet. It is also true that for getting agreement for sale in respect of Dream Eco City project the complainant made several written correspondences with the ops, but to no effect. Being aggrieved with such dilly dallying tactics and carelessness attitude of the ops this complaint have been initiated by the complainant for redressal of his grievance. In respect of refund of the paid amount the contention of the ops is that the complainant is entitled to get refund of the paid amount alter deducting 10% of the net price of the questioned flat and in this respect the ops have relied on the clause no. 11.1 of the Dream Exotica project and clause no. 3.5 of the Dream Eco City project respectively. In respect of Dream Exotica project we are of the opinion that as the complainant already switched off from the Dream Exotica to Dream Eco City project, hence the clause no. 11.1 of the Dream Exotica project has no legs to stand upon and the relied clause being no. 11.1 of the Dream Exotica project cannot be applicable in respect of Dream Eco City project because it is the contentions of the ops that the two projects are completely different and developers are also not identical. In respect of the clause no. 3.5 of the Dream Eco City project as relied on by the ops are of the of the view that as till filing of this complaint parties did not enter into the agreement for sale by putting their signature and accepting the clauses, terms and conditions of the said agreement as binding over them, the clause no. 3.5 of the Dream Exotica project is not in existence. Moreover, as no concluded contract has been made by and between the parties in respect of Dream Eco City project, the clause no. 3.5 or whatever else cannot be applicable in case of refund of money as sought for by the complainants. During hearing the ld. Counsel for the ops has filed some documents along with an application for allotment of apartment in Dream Eco City project from where it is evident that in the clause no. 5 it is mentioned that after the lapse of 15 days from the date of application and non-rejection by developers, all the clauses of the sales agreement will prevail, including the cancellation clauses. The builder is entitled to deduce 10% of apartment cost as penal charges in case of a cancellation after 15 days. In respect of the said clause of the application for allotment we  are of the opinion that upon careful perusal of the application we did not find out on which date the application was made by the complainant, not only that within the forecorners of the application there is no column of writing any date. Therefore we are not in a position to count 15 days or whatever it may be in view of the clause no. 5. So the application or allotment along with the abovementioned clause cannot be applicable in the case in hand. During hearing ld. Counsel for the complainant has argued that the Hon’ble Supreme Court has held in the case of Gaziabad Development Authority Vs. Balbir Singh (reportable judgment) in case of non- delivery of the flat, delay delivery etc. interest should be imposed @18% per annum and hence according to the complainant he is entitled to get interest over the paid amount @18% per annum. We have carefully perused the said judgment passed by the Hon’ble Supreme Court and it is seen by us that Their Lordships have mentioned in the said judgment that interest @18% p.a. shall not be imposed flatly and interest shall be imposed after considering the facts and circumstances of the each case. Therefore, the contention as argued by the ld. Counsel for the complainant cannot be entertained. In the prayer portion the complainant has prayed for interest @16% p.a. In our view it will meet justice if we direct the ops for making payment of interest @6% per annum over the paid amount. The complainant has prayed for compensation to the tune of Rs. 5, 00,000=00 towards mental agony and harassment. In this respect we are to say that admittedly the complainant had to face mental agony and harassment due to inaction of the ops as the ops neither sent down the agreement for sale nor refund the amount as paid by him after cancellation of the questioned flat. The complainant has also prayed for litigation cost and in this respect we are of the view that he is entitled to get it because the ops did not settle the matter before filing of this complaint and he had to incur some expenditure towards this litigation obviously.

          Going by the foregoing discussion hence, it is

O r d e r e d

that the complaint is allowed on contest with cost. The ops are directed to refund the entire amount of Rs. 7,50,900=00 as paid by the complainant towards the consideration price of the questioned flat along with interest @6% per annum from the date of filing of this complaint till realization of the entire amount along with interest within 45 days from the date of passing of this final order/judgment, in default, the entire amount Rs. 7,50,900=00  along with interest amount shall carry penal interest @8% per annum for the default period. The ops are further directed for making payment of Rs. 3,000=00 towards compensation due to sufferings, harassment and mental agony and litigation cost of Rs. 1,000=00 within 45 days from the date of passing of this order, in default, the complainant will be at liberty to put the entire order in execution as per provisions of law.

Let plain copies of this final order/judgment be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.

                   (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                 President       

                                                                                                          DCDRF, Burdwan

                      (Silpi Majumder)                                                     

                             Member                                                                   

                    DCDRF, Burdwan

                                                   (Pankaj Kumar Sinha)                           (Silpi Majumder)

                                                           Member                                              Member    

                                                     DCDRF, Burdwan                             DCDRF, Burdwan