FINAL ORDER
The complainant, on 28.06.2017 has filed this case against the Opposite Parties u/S 12 of the Consumer Protection Act, 1986.
The case of the complainant, in brief, is that the OP No.1 is Shrachi Burdwan Developers Pvt. Ltd, having an intention to develop the land in the locality for the purpose of making construction and selling by way of demarcating plots whereas the OP No.2 is the superior authority of OP No.1 having registered office in Kolkata. The complainant proposed before the OP No.1 to purchase a unit of flat for making residential house and as such a unit of plot being No. RR/26F is booked on 30.09.2015 by way of depositing a cheque being No. 917951 dt. 30.09.2015 , amounting to Rs. 2, 03,860/- drawn on SBI and thereafter, a further sum of Rs. 7,410/- through a cheque being No. 917952 dt. 30.09.2015 drawn on SBI were deposited and an allotment letter is sent on 15.10.2015 giving a Customer Code RSD 2/RR/26F/188 and handed over the possession of the said plot within three months from the date of approval of the allotted plot to the complainant directing her to pay a sum of Rs.16,52,735/- As per the statement, the OP No.1 did not handover the possession of the said allotted plot due to disturbances of the company and the complainant tried to meet the officials of the OPs at Burdwan for the purpose of due payment but failed . The complainant, all on a sudden, got a cancellation notice written on 20.02.2016 from the OP No.1 requesting to remit the outstanding amount of Rs.20,17,456/- within March 06, 2016 failing which the allotment for the said unit will be cancelled and having had the notice, the complainant met the OP No.1 and told with his grievance about the administration of the company that she had no money at this stage but will try her best to collect money but she could not collect the aforesaid money through loan from some financial institution and as such failed to pay the amount as per the direction of the OP No.1. The OP No.1 was requested about the same for giving some times and OP No.1 gave assurance to consider the matter with an attention but did not keep the assurance; rather sent a notice on 08.04.2016 for cancellation of the provisional allotment of the said unit and the part earnest money has been forfeited . Then the complainant met the OP No.1 stating the matter but he did not hear the words of the complainant. Therefore, the complainant sent a notice dt. 02.01.2017 to the OPs through the Ld. Advocate demanding for cancellation of the booking of the aforesaid plot refunding the advance money doe to marriage of the niece of the complainant . The OP No.2 received the letter on 10.01.2017 but kept mum and this act of the OP Nos. 1 & 2 are deficiency in service and unfair trade practice.
The cause of action arose on and from 20.09.2015 and thereafter on 15.10.2015 the allotment letter was sent to the complainant and lastly on 20.02.2016 when the cancellation of the provisional allotment was given to the complainant without refunding the earnest money and it is a continuing cause of action. The complainant has deposited bank-draft of Rs. 2,00/- for the purpose of getting against the OP s by a sum of Rs.3,61,270/-.
Upon this background, the complainant prayed for directing the OP No1 to refund the earnest money at the time of booking the plot amounting to Rs.2, 11,270/- along with an interest @ 10% p.a. along with a compensation of Rs.1, 00,000/- towards the complainant for committing unfair trade practice and Rs.50, 000/- as compensation for mental agony and sufferings of the complainant.
Both the OPs have contested the case by filing W/V denying all the material allegations contending inter alia that the present case is not maintainable in its present form and that the complainant is not a consumer under the Consumer Protection Act and that the complaint is totally mala-fide and vexatious and the complaint is barred by Law of Limitation , Specific Relief Act and the Indian Contract Act and the provisions of Arbitration and Conciliation Act and that the case is liable to be dismissed on the ground of pecuniary jurisdiction.
The specific case of the OPs is that the OPs are highly reputed Developer Companies and provisional allotment letter was issued on 15. 10.2015 along with General Contract-Booklet . During the phase the construction work for the unit of the complainant was going on full swing with the ultimate dream and object and aim to make the dream home of the complainant and her alike allotted with and from further superior experience but subsequently the project suffered from “Force Majeure” acts as some serious technical issues in connection to the Electricity Providing problem as the Electricity Department had been facing their own inconveniences to supply the electric line and the OP informed the customer about the “Force Majeure” condition. But suddenly during this period the happening of the most unfortunate and abnormal and unexpected Force Majeure condition but suddenly during this period the happening of the most unfortunate and abnormal and unexpected force majeure incidents in the Renaissance Township forcing them to clos their site office and to sop the entire work in Renaissance Township Project as some pe3rson under the banner of Paschim Barddhaman Krishi Kalyan Samity have forcefully occupied the site and due to which the entire work in the project has been stopped. Accordingly, the OPs did not commit any unfair trade practice or deficiency in service. The OPs again in Para 17 of the Written Version narrated the said fact of “Vis Major” which is the statutory defense for which the OPs cannot be held liable. He further stated that finally the dark cloud of dispute and dilemma have been eradicated by the intervention of the BDA and other organs , the company being the OP resumed its position and possession in respect of the project site and the running project again resumed its occupancy and construction process and intimated and informed its customers including the development of the project and the allotted bungalow of the complainant. The payment system of the said allotment is strictly mandatory in terms with its follow up and the said mandate has also been intimated to the comp0lainant . But the complainant did not make any contact or did not intimate anything to the OP in connection with stoppage of payment. Afterwards, the OPs issued one notice in favour of the complainant but the complainant did not revert back to the said notice. The complainant with ulterior motive initiated this case in this Forum , knowing fully well about her present locus standi and as the present case is not a consumer complaint but a pure Money Suit which is to be instituted in the Civil Court having jurisdiction and the said money suit is to be filed under Specific Relief Act and the Civil Court has jurisdiction to entertain the suit for Specific Performance of Contract .
Upon this background the OPs claimed for dismissal of the case.
Decision with Reasons.
In order to prove the case, the complainant has filed evidence-on-affidavit and Xerox copies of documents. The OPs also filed questionnaire to the said evidence and the complainant filed replies to the said questionnaires. OP files evidence-on-affidavit and the complainant also filed questionnaire to the said evidence. But no reply of the said questionnaire has been filed by the OPs. The complainant has also filed Written Notes of Argument in this case. Copy served but the OPs did not file any Written Notes of Argument.
On perusal of the evidence on record of the complainant, it is found that the complainant has corroborated the fact of the case depicted in the complaint but the OPs could not shake the evidence of the complainant by filing questionnaire, as it appears from the reply of the complainant to the said questionnaire.
The OPs have filed evidence-on-affidavit which support the case but when the complainant put questionnaires to the s aid evidence of the OP by filing question, the OPs did not file any reply i.e tantamount to keep mum against the question to his evidence and his evidence is very weak in nature for not giving reply to the said questionnaire put by the complainant.
In the Written Version the OPs took plea that due to “Force Majeure” or “Vis Major” , the work of the project was hampered and the Vis Major was due to problem of electricity in the Electric Department. But no such paper is forthcoming on behalf of the OPs regarding the said plea from the Electricity Department, rather this plea of “Vis Major” is taken by the OPs , it is the boundent duty and responsibility to prove the same by the OPs, but the OPs has failed to prove the same, i.e. rather it is found from the evidence on record that the OPs did not hand over the possession of the unit of flat within the stipulated period of time as per the terms and conditions of its. Furthermore, the complainant has deposited Rs. 2, 03,860/- and Rs. 7,410/- to the OPs as it appears from the documents filed by the complainant. It is also evident from the evidence of the complainant that even the OP did not pay any heed to the request of the complainant for handing over the possession of unit of plot after development and they also did not return back the said amount to the complainant. The plea of the OPs that Paschim Barddhaman Krishi Kalyan Samity have forcefully occupied the site due to which the entire work in the project has been stopped which was informed to the complainant but no such document is forthcoming to support his version. Rather the unit of plot is situated in the Renaissance Township Project at Purba Barddhaman. Therefore, this submission of the OPs cannot be believable.
According to the case of the complainant, the allotted plots were valued at Rs. 16,52,735/- and the complainant has paid earnest money a sum of Rs. 2,11,270/- and prayed for total compensation of Rs.1,50,000/- i.e. total claim of Rs.3,61,270/- . The value of the subject matter of the case is Rs. 16, 52,735/- and compensation of Rs. 1, 50,000/- ie. Total value of the subject matter for determination of pecuniary jurisdiction under Sec.11 of the Consumer Protection Act Rs. 18, 02,735/- . Accordingly, this Commission has pecuniary jurisdiction u/S 11 of the Consumer Protect ion Act, 1986 for entertaining this complaint and this case is not barred either by Specific Relief Act or by Indian Contract Act or by provisions of the Arbitration and Conciliation Act. More so, the complainant is a consumer under the Consumer Protection Act, 1986.
Ld. Advocate for the complainant submitted that lastly on 20.02.2016 the cause of action was arisen when the cancellation of the provisional allotment was given to the complainant without refunding the earnest money and the cause of action is continuing, the case was filed on 28.06.2017 i.e the complaint was filed within the period of limitation of two years as envisaged u/S 24 A of the Consumer Protection Act, 1986. Therefore, the case is also not barred by Law of Limitation. When the complainant is a consumer under the OPs then she has right to lodge the case before the Ld. Consumer Commission/Forum and she has option not to file any money suit for performance of Specific Contract Act.
Under the above circumstances, we are of opinion that the OPs have committed deficiency in service and negligent on their part for which the complainant has suffered a lot. As such the case succeeds.
The complainant is entitled to get return back of Rs. (2,03,860/- + 7,410/-) = Rs. 2,11,270/- along with interest @ 10% p.a. from the date of filing of this case i.e. on and from 28.06.2017 and she is also entitled to get compensation of Rs. 20,000/- for deficiency in service and negligence and Rs. 10,000/- for suffering from mental pain and agony. The complainant is entitled to get Rs. (2, 11,270 + 20,000/- + 10,000/-) = Rs. 2, 41,270/-.
Hence, it is
ORDERED
That the Consumer Complaint No. 108/2017 be and the same is hereby allowed on contest against the OPs but without any cost.
The OP Nos. 1 & 2 are jointly and severally liable to pay the said amount to the complainant.
The OPs are directed to pay Rs. 2, 41,270/- ( Rupees Two Lakh Forty One Thousand Two hundred Seventy only ) to the complainant by an account payee cheque along with interest @ 10% p.a. from the date of filing of this case i.e. on and from 28.06.2017 within 45 days from the date of receipt of this order , failing which the said amount shall carry further interest @ 10% p.a. till realization.
Let a copy of this order be supplied to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C, Purba Bardhaman. D.C.D.R.C , Purba Bardhaman.
