Dated : 30 June, 2022

Final Order / Judgement

Hon’ble Mr. Ayan Sinha, Member

This is a complaint U/S 35 of the C.P Act, 2019 filed by Shri Mahadev Das against Usashi Realstates Pvt. Ltd. Developer (OP No. 1) & Supriyo Patra, Constituted Attorney of OP No. 1 (OP No. 2) alleging deficiency of services on the part of the OPs and accordingly, prays for a direction upon OPs to pay Rs.5,35,000/-  to pay compensation of Rs.5,00,000/-, to pay Rs.3,00,000/- for mental harassment and litigation cost of Rs.1,00,000/-.

                                                 FACTS IN BRIEF

The complainant being allured by the advertisement of the developer Ushasi Real Estates Pvt. Ltd. In daily newspaper “Ananda Bazar Patrika” on 12/02/2017 for selling of flats/garages etc. in their project “KINGTOWN NEW TOWN” visited the office of the developer and paid first consideration of Rs.3,00,000/-  through cheque on 18/02/2017 and thereafter on demand by the OPs paid Rs.2,35,000/-  on 24/07/2017 through two cheques for booking of a 3BHK flat of 728 sq. ft. @ Rs.2040/sq. ft. on first floor in South-East along with a car parking space of 12.5 sq. mtr. on the ground floor. Thereafter the constituted attorney i.e. OP No. 2 entered into an agreement for sale for the above said flat along with covered car parking area and other amenities in the said project with a total consideration of Rs.19,85,120/-, as stated in the complaint petition, the OPs were to complete and hand over the said flat along with car parking on and around 22/02/2021 i.e. within 40 months from the date of agreement for sale i.e. 23/10/2017, but the OPs never gave reply to the complainant when enquired about the current status and as mentioned no brick has been erected in the project even 14-15 months prior to the date of delivery of the said flat and car parking space. The complainant thereafter followed up with the office of the OPs who misbehaved with him and sent a letter to the complainant on 13/02/2020 where they twisted the facts and stated that the complainant intended to withdraw from the project without mentioning that the project has not started for which the complainant was disappointed. So finding no other option, complainant sent two legal notices on 06/03/2020 and 22/06/2020 respectively to which the OPs replied by their letter dated 09/07/2020 expressing their inability for not obtaining necessary permissions from BL & LRO department of Hatisala Mouja, Bhangar-II, Gram Panchayat, Rajarhat and requested the complainant to shift from Flat to Bungalow in the same project to which the complainant work shocked to receive such news since the agreement for sale clearly stated that the construction was had already started but actually it was not. So, he requested to the OPs for refund of money which he paid as advance for booking of the flat and car parking space. After several follow up & visits along with legal notices to the OPs, he found no other way and then approached at consumer grievance cell, Govt. of W.B where the mediatory procedure also failed due to non-cooperation of the OPs.

   Thus, being harassed by the OPs, causing his mental agony and torture, complainant filed this case.

   Notices were served upon all the OPs.

  OPs contested this case by filing W/V, stating inter alia, that the case is not maintainable in law and any disputes raised between the complainant and OPs should be referred to sole arbitrator for adjudication of the disputes. They stated that OP No. 2 is not the director of the company and also stated that the complainant has filed this case before completion of 40 months in respect to agreement for sale.  OPs have also stated due to pandemic situation the development work was not smooth and the construction work is still going on. So, OPs prayed for dismissal of the case with compensation to be paid to the OPs by the complainant for harassment.

    Complainant had filed evidence in chief on affidavit where he has reiterated the facts as mentioned in his complaint petition. It is pertinent to mention that in spite of giving repeated opportunities, OPs did not appear after filing W/V nor have filed questionnaire and evidence and thereafter the matter was fixed for argument.

   Brief notes of argument is also filed by the complainant during the course of final hearing along with some copies of judgments passed by Hon’ble Apex Court and Hon’ble National Commission. But OPs remained absent during final hearing also.

POINTS FOR DETERMINATION

1. Whether the complainant is a consumer and the case is maintainable?
2. Whether there was any deficiency of service on the part of the OPs?
3. Whether the complainant is entitled to the reliefs as prayed for?

                                     DECISIONS WITH REASONS

All the points are taken up together for the sake of brevity and avoidance of litigation of facts.

            We have carefully perused the all the documents filed by the complainant and the W/V filed by the OPs. It is very much clear that the complainant book a flat along with car parking on 18/02/2017 by making payment of Rs.3,00,000/-  and subsequently paid Rs.2,00,000/-  on 24/07/2017 on demand by the OPs and entered into an agreement for sale with the OPs on 23/10/2017 for a total consideration of Rs.19,85,120/-  including 3 BHK flat, covered car parking and other amenities. So, there is no doubt that the complainant is a consumer. On further scrutiny of the W/V filed by the OPs it is also noticed that OPs raised the 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 bar to file the complaint case. Therefore, we hold that the complaint case 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 10^th 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.”

            It is an admitted fact that the complainant paid Rs.3,00,000/- and Rs.2,35,000/-  to the OPs by way of two cheques on 18/02/2017 and 24/07/2017 respectively for booking of a flat and covered car parking area along with other amenities and accordingly confirmation letter on 30/03/2017 and money receipt dated 24/07/2017 in support of the same were issued by the OPs which are already annexed with the complaint petition. So, it is evident that the complainant booked a 3 BHK flat at Usashi King Town, New Town against the advance consideration.

            On perusal of the letter Ref. No. OC/20/01314 dated 13/02/2020 issued by the OPs against the request of cancellation letter by the complainant dated 03/02/2020, it is noticed that OPs have admitted that they are taking care of the matters related to refund. But in W/V, OPs stated that complainant had filed this case prior to 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 refund as per their letter dated 13/02/2020 and thereafter in the W/V their version was contradictory. Moreover, they have not refunded the advance amount also paid to them by the complainant. It is also noticed that there is no whisper in their W/V against the statement made by the complainant that 14 to 15 months prior to 22/02/2021, it is the date for handing over the possession, no brick was erected in the project for which the complainant being disappointed and claimed for the refund to which OPs did not refund.

         So, by this conduct of the OPs, we are of the view that there was certainly a deficiency of service on the part of the OPs for not refunding the advance amount i.e. Rs.5,35,000/- even after their assurance to the complainant and thus, the complainant is entitled to the reliefs.

                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.

            In the end, the complainant has succeeded in proving his case.

Hence,                         it is

ORDERED

The instant complaint and the same is allowed on contest against the OPs.

OPs are directed to pay Rs.5,35,000/- (Rupees Five Lakh Thirty-Five Thousand Only) to the complainant along with interest @ 10% p.a from the date of respective money receipts issued by the OPs i.e. 18/02/2017 for Rs.3,00,000/- (Rupees Three Lakh Only) and 24/07/2017 for Rs.2,35,000/- (Rupees Two Lakh Thirty-Five Thousand Only)  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.

Both the OPs are jointly and severally liable to pay the said amount to the complainant.

If the order is not complied by the OPs within the aforesaid period, the complainant is at liberty to proceed in accordance with law.