This is a complaint u/s 35 of the CP Act, 2019 made by the complainant alleging unfair trade practice on the part of the OPs and accordingly, prays for a direction upon the OPs to refund the amount of Rs.4,32,794/-, to pay compensation of Rs.50,000/- for mental harassment along with litigation cost of Rs.15,000/-. FACTS IN BRIEF The complainant being allured by the advertisement of the OPs USASHI REALSTATES PVT.LTD. in daily newspaper “Ananda Bazar Patrika”, approached the OPs for purchasing one flat of 3BHK on 3rd floor, measuring covered area of 728 square feet for a total consideration of Rs.5,08,254/-. The complainant filed an application being No .KTN 001346 for booking of the said flat and paid Rs.4,32,794/- (4,212,794/- + GST) out of the total consideration through cheque on different dates. Thereafter, the complainant was shocked when he came to know that the OPs had accepted the booking amount without the construction work being started and so requested the OPs for the refund of the booking amount as stated in the complaint petition. As alleged, OPs had requested to the complainant giving false assurance stating that if some more time be given as the construction work is under process. But after waiting for a long time, complainant submitted an application, in the year 2019 to the General Manager of USASHI REALSTATES PVT.LTD. requesting them for cancellation of the said flat as the same was booked in the year 2017. It is also stated that the complainant received only Rs.10,000/- on 21.08.2019 after requesting the OPs through email for the refund. Thus, having not received the flat nor the booking amount being refunded to him, complainant filed this instant case alleging false & misleading advertisement and unfair trade practice on behalf of the OPs. Notices were served upon the OPs. OPs appeared and filed written version, stating, inter alia, that the complainant had not followed the agreement wherein it is mentioned that any disputes raised between the complainant and the OPs should be referred to sole arbitrator for adjudication of the disputes. Moreover, their averments are that OP No. 1 is a private limited company under the Companies Act, 1956 and OP No. 3 is not the Director of the Company nor anywhere connected with this instant case. They also stated that there was an agreement entered between the complainant and the OPs in the year 2018 for a flat which was to be delivered within 40 months from the date of agreement but the complainant had filed this case before the completion of the time period. So in view of the said averments, OPs prayed for dismissal of the instant case. Complainant filed evidence-in-chief on affidavit where he had reiterated the facts as mentioned in the complaint petition. But thereafter, OPs did not file any questionnaire nor filed any evidence in spite of repeated opportunities being given and so finally the matter was fixed for argument. During the final hearing, the OPs remained absent also and the complainant was heard. POINTS FOR DETERMINATION - Whether the complainant is a consumer under the CP Act, 2019?
- Whether the complaint is maintainable?
- Whether there was any unfair trade practice on the part of the OPs as alleged?
- Whether the complainant is entitled to the relief(s) as prayed for?
DECISION WITH REASONS All points are taken up together for the sake of brevity and to avoid repetition of facts. We have carefully perused all the copies of the documents/annexures filed by the complainant and also the W/V filed by the OPs. It is very much clear that the complainant booked a 3 BHK flat in the year 2017 against payment of Rs.4,12,793/- out of total consideration of Rs.5,08,254/- through cheques on several dates which are as follows:- SL No. | CHEQUE NO. | -
| BANK & BRANCH | AMOUNT (Rs. | -
| -
| -
| Bank of Baroda, Park Circus Branch. | -
| -
| -
| -
| Canara Bank at Kolkata Science City. | -
| -
| -
| -
| Canara Bank at Kolkata Science City. | -
| -
| -
| -
| Canara Bank at Kolkata Science City. | -
| Total Rs. 4,12,793.00/- |
It is also admitted by the OPs in their W/V that the complainant is their customer. So, there is no doubt that the complainant is a “Consumer” as he had hired the service of the OPs. On further scrutiny of the W/V filed by the OPs, it is also noticed that the OPs raised a point in Para 4 on their W/V, stating that there is an arbitration Clause in the agreement. After considering the materials on record, and the contention of the OPs as raised in their W/V, we find that the arbitration Clause cannot be a part to file the complaint case. Therefore, we hold that the complaint is maintainable. In this regard we have relied upon the judgment of National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and another (2012) 2 SCC 506 Where Hon’ble Apex Court was pleased to hold that “The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Protection Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Protection Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996. Moreover, the plain language of Section 3 of the Consumer Protection Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.” In M/S Emaar Mgf Land Limited Vs. Aftab Singh on 10th December, 2018 where Hon’ble Apex Court was also pleased to hold that “We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.” On perusal of the Letter reference No.OC/19/00626 dated 18.02.2019 issued by the OPs against the replies of cancellation letter given by the complainant (which was also duly received with sign & seal by the OPs) on 02.02.2019, it is noticed that the OPs have admitted that they are taking care of the matters related to refund. But, in W/V, OPs stated that the complainant had filed this case prior to the date of possession as stated in the agreement for sale. So, it is very much understood that the OPs firstly admitted to proceed with the relevant refund as per their letter dated 03.09.2019 and thereafter in the W/V their averments is contradictory. Moreover, they have not refunded the advanced amount also paid to them by the complainant except Rs.10,000/- which was paid to the complainant as stated in their email communication dated 24.09.2019 and the same is also admitted by the complainant. So, by this conduct of the OPs, we are of the view that there was certainly unfair trade practice on the part of the OPs in not refunding the balance amount by them even after their assurance to the complainant and thus the complainant is entitled to the relief(s). On further scrutiny of the complaint petition and the copy of the receipt No.5053 for Rs.1,80,000/- issued by the OPs, it is also noticed that the amount of Rs.1,80,000/- paid by the complainant was including the GST amount and there is no scrap of paper forthcoming before us that Complainant has also paid Rs.20,000/- for GST in addition to Rs.4,12,793 as prayed for. Moreover, it is an admitted fact, that the OPs have refunded Rs.10,000/- only to the complainant. Considering the same we are not inclined to pass any order for payment of Rs.20,000/- by the OPs. We also opined that the complainant is entitled to for litigation cost. It would be just appropriate, if we can direct the OPs to pay Rs.5,000/- as Litigation Cost, justice will be served. Hence it is, ORDERED The Instant complaint and the same is allowed on contest against the OPs. OPs are directed to pay Rs.4,02,793/- (Rupees Four Lakh Two Thousand Seven Hundred Ninety Three Only) along with interest @9% from the date of last payment i.e. 23.07.2017 made by the complainant, until realization in full. OPs are also directed to pay Rs.5,000/- (Rupees Five Thousand Only) as Litigation Cost to the complainant. OPs are to pay the aforesaid awarded amount to the complainant within 45 days from the date of this Order. OPs are jointly and severally liable to pay the said amount to the complainant. If the Order is not complied by the OPs within a aforesaid period, the complainant is at liberty to proceed in accordance with law. Dictated and corrected by me. | 
