FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainant filed the instant claim application U/s 12 of CP Act 1986.
The fact of the case in brief is that the complainant Mr. Samir Kabiraj has filed this case through his full blood brother Sri Symal Kabiraj son of late Nityananda Kabiraj of Joykrishnabazar, PO and PS- Trarakeshwar, Dist.- Hooghly because at the time of filing of this case, the complainant was staying and working at USA. He has also executed a general power of attorney dated 12.01.2017 to that effect which is annexed herewith as “Annexure-1”.
It is further stated by the complainant that he had entered into an Agreement for Sale of the plot No. B-29 of the Basundhara Project with the OP-1, Unnayan Builders through the OPs 2 and 3 to develop the case plot No. B-29 situated at Mouza-Bamangachi within PS-Sonarpur, Dist.- 24 Pgs (S) at a consideration of Rs. 9,50,000/- . Accordingly, the complainant paid Rs. 1,92,000/- being 20 % of total consideration amount on and before the agreement and the rest amount being Rs. 7,68,000/- was of total consideration amount was agreed to pay by the complainant in 48 monthly installments. It is further stated by the complainant that as per agreement dated 23.06.2012, It was agreed by the OPs that they shall handover the developed case plot of Basundhara Project to the complainant after 48 months on completion of development works of plot in question. The agreement dated 23.06.2012 is annexed as “Annexure-2”.
It is the further case of the complainant that he has already pad Rs. 7,52,000/- only to the OPs but no development work has yet been done at the site without assigning any reason by the OPs thereafter, sometimes in month of Feb, of 2015 the complainant had came to know from the office of OPs that the said Basundhara Project has been cancelled but no official communication to that effect has ever been made by the OPs to the complainant then the complainant had stopped to pay the rest of monthly installments and decided to seek refund of entire amount of consideration money paid by him to the OPs on the basis of agreement dated 23.06.2012. The consideration money of Rs. 7,52,000/- apart from initial payment of Rs 1,92,000/- out of total consideration of Rs. 9,60,000/- and all such payments have been made by the complainant by account payee cheque to the OPs and he had never been a defaulter in respect of payment of installment to the OPs. The statement of payments made by the complainant to the OPs is annexed as “Annexure-3”.
It is further stated by the complainant that he has tried his level best to make contact with the OP-3 i.e. Managing Director of OP-1 but in vain. Thereafter, the complainant sent several emails but the OPs did not give any response to that effect. On 02.05.2015, the complainant sent a request letter to the OPs to refund the consideration amount paid by him as per agreement dated 23.06.2012 for the plot in question but the OPs did not refund the amount to the complainant even on receipt of request letter dated 02.05.2015. The copy of the demand letter is annexed as “Annexure-4”.
It is further stated by the complainant that on 13.05.2016, the authorised signatory of the OP-1 had proposed the complainant to switch over the Topoban Project near Rajarhat, 24 pgs (N) and subsequently, intimated that the refund of amount would take some time in the event the complainant was not agreed to switch over to the Topoban Project but the OPs were kept mum in their letter dated 13.05.2016 about the Basundhara Project.
The photocopy of letter dated 13.05.2016 is annexed as “Annexure-5” then the complainant informed his unwillingness to switch over to Topoban Project from Basundhara project vide its email dated 17.05.2016. The photocopy of email dated 17.05.2016 is annexed is “Annexure-6”.
Thereafter, the Sales and P. R. Manager has informed the complainant vide letter dated 11.07.2016 that due to some unforeseen reasons the Basundhara Project getting delayed and they are offering their customers of Basundhara Project to switch over to the plots available in other projects and if the complainant intends to take refund the amount paid by him, the OPs shall deduct 25 % of the same actuality paid by the complainant. The photocopy of letter dated 11.07.2016 is annexed as “Annexure-7”.
Thereafter, the complainant made a reply dated 11.07.2016 through his Ld. Advocate claiming the refund of the entire amount being Rs. 7,52,000/- only along with interest @ 10 % on the same amount for the failure of the OPs to perform their part as per agreement dated 23.06.2012. The complaint further stated that as there was no latches on his part so question of deduction of 25 % of the amount actually paid by him does not arise at all. The photocopy of letter dated 07.11.2016 is annexed as “Annexure-8”.
It is alleged by the complainant that he has already paid 80 % of total consideration amount for purchasing the B-29 of plot in question of Basundhara Project but the OPs neither develop the project as per agreement dated 23.06.2012 nor handed over the same to the complainant and they also denied to refund the amount paid by the complainant towards the consideration money of plot in question which is amounting to deficiency in service, harassment, mental pain and agony as well as huge financial loss of the complainant.
Under such circumstances, without having any other alternative, the complainant compelled the instant petition of complaint with a prayer to give direction to the OPs to refund the amount of Rs. 7,52,000/- of the consideration money paid by the complainant for the plot in question along with interest @ 10 % on the same amount as per agreement dated 23.06.2012 and also prayed for giving direction to the OPs to pay compensation of Rs. 7,00,000/- to the complainant either jointly or severally for harassment, mental pain and agony due to deficiency in service and unfair trade practice on the part of OPs along with litigation cost of Rs. 50,000/-.
The OPs have contested the claim application by filing a WV denying all the material allegations leveled against them. It is the case of the OPs that the complainant has/had no cause of action to file the instant case. The complainant has filed this case with an ulterior motive with unlawful gain.
It is further case of the OPs that the complainant being foreign national cannot sue in an Indian Consumer Forum.
It is also denied by the OPs that the complainant is a consumer under the CP Act, 1986. The OPs denied that development work was not done in Basundhara Project in question as alleged by the complainant but it is admitted fact that the project work in question could not develop in time due to unforeseen reasons beyond the control of the company. It is also denied by the OPs that Basundhara Project was cancelled but due to some un-avoidable reason, there was some delay in completion of the project work for that reason an opportunity was given to the complainant and other customer of said project to switch over his plot from Basundhara Project to Topoban Project . Such intimation letter has already been annexed by the complainant as “Annexure-5”.
It is further alleged by the OPs that as per clause 3 of agreement, the complainant has bound to pay the monthly installments by 15th day of each successive month which he never did. Thus, the contention of the complainant that he was never a defaulter in payment of installments is baseless. It is also stated by the OPs that as per clause 4 of said agreement for such delayed payment. The complainant is bound to pay interest which he never paid. On the contrary, the OPs always contact with their customers and they had replied the complainant every time as it is seen from annexures. It is also stated by the OPs that as and when the complainant had asked for refund, he cannot be treated as customer as per CP Act, 1986, rather the complainant was at his liberty to switch over from Basundhara Project to Topoban Project and asked for refund of the admissible amount which the complainant paid. So, question of deficiency in service or negligence or unfair trade practice on the part of the OPs does not arise at all.
It is also stated by the contesting OPs in their WV that the agreement in question is covered by Arbitration Clause and Arbitral Tribunal is the appropriate forum to resolve the dispute but the complainant by passing that opportunity has come before this forum and filed the written complaint without having any basis and without having any cause of action in that case the petition of complaint is liable to be dismissed.
In view of pleadings, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- has the complainant any 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 relief as prayed for?
- To what other relief or reliefs is the complainants entitled to ge
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
From the material on record and considering the position of law, it appears that the complainant is a consumer as per provision of CP Act, 1986 as admittedly, the complainant entered into agreement with the OPs for purchasing plot of land being B-29, of scheme plan Basundhara Project of the OP on 23.06.2012 and paid a sum of Rs 7,52,000/- in total out of total consideration of Rs. 9,60,000/-. The OPs also admitted in WV and their evidence as well as written argument that they have received a forementioned amount of Rs. 7,52,000/- from the complainant towards consideration money of the subject plot situated within the jurisdiction of PS- Sonarpur, Dist.- 24 Pgs (S) , Mouza-Bamangachi. So, since then the complainant is a consumer.
From the materials on record as well as position of law, it is also revealed that this forum has got the territorial and pecuniary jurisdiction to try this case and the case is filed by the complainant with the period of limitation.
On a close scrutiny of the materials and on perusal of the evidence of the parties con record, it appears that the complainant paid Rs. 7,52,000/- out of total consideration of Rs. 9,60,000/- . The OPs even on receipt of the amount mentioned above did not take any fruitful part to develop the subject plot B-29, in Basundhara Project rather, the complainant has come to know from the Office of OP-1 that the work of Basundhra Project has been cancelled then he served a demand notice to refund the amount paid by him to the OPs but in vain. So, cause of action was very much there to file this case by the complainant through his representative cum constituted attorney who is full blood brother. It is needless to mention here that the complainant has/had sufficient cause of action to file this case.
From the context of the petition of complaint, WV as filed by the parties to this case and the annexures, evidence on record, it appears that the complainant and the OPs have entered into an allotment agreement of a plot of land No.- B-29, in Basundhara Project situated at Mouza-Bamangachi, JL No -86 PS-Sonarpur, Dist.- 24 Pgs South at a consideration of Rs. 9,60,000/- and accordingly, the complainant paid Rs. 1,92,000/- as earnest money out of the total consideration. From the materials as well as evidence on record, it is also revealed that the complainant and the OPs had entered into the agreement in question on 23.06.2012. As per agreement dated 23.06.2012 (annexure -2), it was agreed that total amount of the consideration money being Rs 9,60,000/- (annexure-3) has to be paid by the complainant in 48 monthly installments and the OPs shall handover the subject plot B-29, Basundhrara Project to the complainant on completion of development works in the said plots.
It is also evidence on record rather admitted by the OPs in the evidence and WV that the development work of Basundhara Project was stopped and the complainant has come to know about this fact in the month of Feb 2015 on an enquiry in the office of the OPs and he stopped the payment of monthly installments.
Under Such circumstances, the complainant also took the decision to demand the refund of consideration money paid by him till then.
From the evidence on record, it is also revealed that the complainant paid 35 installments out of 48 installments apart from the initial payment of Rs. 1,92,000/- he paid Rs. 7,52,000/- in total But without completion of the development work subject plot the OPs stated that the development work of the Basundhara project has been cancelled and the OPs suggested the complainant to switch over the another plot of Topoban Project situated at Rajarhat within dist 24 pgs North. In this context, it is stated by the OPs in their WV, evidence and written argument that admittedly, due to some reasons beyond control, the OPs could not be able to continue the project of Basundhara Project rather they offered the complainant to switch over to Topoban Project near Rajarhat and they also intimated the complainant in the case of refund of amount that would take some time if the complainant is not agreeable to switch over, the OP-1 sent that written intimation vide letter dated 13.05.2016 and it also admitted that the complainant expressed his unwillingness to switch over from Basudhara Project to Topoban Project vide letter dated 17.05.2016 and demanded the refund of the entire amount paid by him. The Ld. Advocate of the OPs drew the to attention of this forum that the complainant failed to pay the EMI in due time he only paid Rs. 7,52,000/- only by 35 EMIs or installments in this regard Ld. Advocate for the complainant argued that when the complainant was informed about the matter of cancellation of development work of Basundhara Project then he stopped the payment of installments which is quite natural . The forum is opined that being a prudent person and also being an ordinary purchaser the complainant has come to know that the project for which he has already paid a sum of Rs 7, 52,000/- in 35 installments, the development work of said project stopped or cancelled without giving him any prior notice from the end of the OP-1 then it is obvious that he would anxious about the future of the project and stopped payment of further installments. On the contrary from the conduct of the OPs, it is palpably clear that even after receipt the 80 % of total consideration money amounting to Rs. 7,52,000/- from the complainant for the subject plot No. B-29, Basundhara Project. The OP-1 failed to perform his duty to complete the project work rather it was cancelled and the OPs tried to convince the complainant to switch over the another project namely Topoban near Rajarhat, North 24 pgs but the complaint would not be agreed and the OPs did not refund the amount of Rs 7,52,000/- to the complainant as paid by him towards the consideration money. Rather they denied the same and stated that they have accepted only Rs 5,60,000/- for plot No. B-29 from the complainant rather from Annexure -3. It is palpably clear that the complainant has paid Rs 7,52,000/- to the OP-1 instead of Rs 5,60,000/-. From Such conduct of the OPs it is the crystal clearly proved their deficiency in service and unfair trade practice which caused the harassment, mental pain and agony to the complainant.
For which they have bound to pay compensation to the complainant and to refund the amount paid by the complainant to OP-1 .
The another point which has been argued by the OPs in their WV and Written Argument that the complainant is residing in foreign being a foreigner or foreign resident. He cannot sue in a Forum of India but it is revealed from the material on record that constituted Sri Shyamal Kabiraj being the full-blood brother of the complainant has conducted the case. He deposed in this case on behalf of the complainant and the complainant also deposed by himself. The complainant has given General Power of attorney in favour of his brother Shyamal Kabiraj to conduct his case which is permissible in eye of law so, the allegation of the OPs that being a foreign resident the complainant cannot sue in a Forum of India has no basis at all because the power of attorney holder Sri Shyamal Kabriaj who deposed in this case on behalf of the complainant is a resident of Tarkeshwar within the Dist.-Hooghly is looking the proceedings of this case. On the strength of General Power of Attorney dated 12.01.2017 moreover, if the OPs to this case are residing or running their business within the jurisdiction of this forum and if the cause of action of this case arose within the jurisdiction of this forum, the case is well maintainable in the eye of law in the instant Forum. The OPs has their office within the PS- Ballygunge, Kolkata-700019 which is well within the jurisdiction of this Forum. So, the complainant rightly filed this case in this Forum and the case is well maintainable.
In view of discussions made above it is well established beyond all reasonable doubts by the complainant through his evidence and also in support of facts and circumstances of this case that there was deficiency in service on the part of the OPs by their conduct and they are liable to give compensation to the complainant.
Hence, the complainant being a consumer is entitled to get relief as prayed for within the ambit of CP Act, 1986.
All the points of consideration are 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 against the OPs with cost of Rs 10,000/- only
The complainant do get decree as prayed for.
The OPs are directing to refund part consideration money of Rs. 7,52,000/- (Rupees Seven lacs fifty two thousand) only to the complainant either jointly or severally as paid by him with an interest @ 7 % p.a. on the foresaid amount from the date of filing of this case till realization within 45 days from this date of order.
The OPs are further directed to pay a sum of Rs. 2,00,000/- only on account of compensation to the complainant for harassment, mental pain and agony along with litigation cost 30,000/- either jointly or severally within 45 days from this date of order, id the complainant will be at liberty y to execute the decree as per law.
Copy of the judgment be uploaded forthwith on the website of the commission for perusal.
