In a bird’s eye view Complainant s’ case is that they on 26.10.2016 had signed an agreement with the O.Ps and had booked for the services to construct a flat at the residential complex names ‘Ushashi Princetown Platinum’ and accordingly Complainants had already paid on several occasions a total sum of Rs. 2,57,060/-.
Complainants state that it was a commitment by the O.Ps that possession of the said flat will be handed over in 36 months. Thereafter, O.Ps informed that by the end of 48 months (extension date) the possession of the said flat would be given. However, Complainants noticed that the project was not in sufficient progress and it is pertinent to note that the said project is still in the initial stage and has not been completed after the date of possession had been over.
Complainants allege that in the year 2019, the project was far from being ready to be handed over. And being fed up with the function of deficiency in service on the part of O.Ps and the Complainants actually were being in dire need of a lot of money on the ground of medical illness, Complainants requested O.Ps to refund the said advanced money. Thereafter, O.Ps issued a cheque being no. 827217, drawn on Yes Bank Ltd., ground floor, P901, Block A, Lake Town, Kol-700089, dated 25.04.2019 amounting to Rs. 2,57,060, but the said cheque had been bounced.
Thereafter Complainants sent several representations including a representation of Demand Notice dated 07.02.2019 to the O.Ps requesting to release the amount already paid by the Complainants. Complainants further state that action of the O.Ps shows a total deficiency in service.
Further Complainants state that Complainants sent Legal Notice to the O.Ps, however, O.Ps were reluctant to comply with the same.
Complainants also state that O.Ps shows a totally unable to deliver a proper complete peaceful possession of the property to the Complainants within the stipulated time framed and now O.Ps refrained from even refunding the said amount of Rs. 2,57,060/- to the Complainants. Hence Complainants instituted the present case praying for following reliefs:-
- A direction upon the O.Ps to refund of Rs. 2,57,060/-.
- A direction upon the O.Ps to pay a further amount of Rs. 2,00,000/- to the Complainants towards compensation and harassment.
- A Direction upon the O.Ps to pay an amount of Rs. 40,000/- toward litigation cost.
- A Direction upon the O.Ps to pay an interest @ 18% till realization of the amount.
- A Direction upon the O.Ps to provide their sanctioned plan by which they have carried on the construction of the said apartment and
- A Direction upon the O.Ps to pass further order/orders as may deem fit by this Commission.
O.Ps have contested the case by filing written version which is nothing but a complete denial of the Complainants’ case and O.Ps have also raised points that instant case is not maintainable and the present Consumer Complaint in speculative including Complainants have no cause of action of filing the instant case.
It is averred by the O.Ps that Complainants have not followed the condition of agreement where in point no. 14 it is specifically mentioned that if any dispute arises between the developers and purchaser, the said dispute shall be referred to concerned arbitrator and the sole arbitrator shall have the power to pass and give both interim order and award in regard to adjudication of dispute and differences between the parties, and Complainants have failed to do it. Finally, O.Ps have prayed for dismissal of the Complaint Case and O.Ps have also prayed for direction upon the Complainants to compensate the O.Ps for harassment and mental agony.
O.Ps have also prayed for cost.
POINTS FOR DECISION
- Whether the Complainants are the Consumers to the O.Ps?
- Whether this Commission (formerly Forum) has Territorial/ Pecuniary Jurisdiction to entertain and try this Case?
- Whether there is any deficiency in service or there is any trade unfair trade practice on the part of O.Ps?
- Are the Complainants entitled to get relief/s as prayed for?
DECISION WITH REASONS
For the sake of brevity of discussion all the points are taken up for discussion conjointly.
On close scrutiny of material on record it reveals that Complainants are the Consumers under Section 2 (7) of the C.P Act, 2019 to the O.Ps.
Complainants appear to be the resident of village Bachurdoba, Post Office: Jhargram, Dist: Jhargram, whereas O.P No. 1 having its office at 81, Golaghata VIP Road, flat no. 1B, Radhakunja Appartment, Kol-700048 and the address of O.P No. 2 is also the same. Considering the nature of the case and prayer of the Complainants it clearly indicates that the subject matter of dispute is nothing but a consumer dispute and it straightway gives clear signal that the pecuniary value of the case is within Rs. 50,00,000/- i.e. within the limit of this Commission. So, this Commission has Territorial/Pecuniary Jurisdiction to entertain and try this case.
In support of the case Complainant no. 1 has filed evidence on affidavit. It appears that the contents of the same are a replica of the contents of the petition of complaint.
Further it may be noted that inspite of opportunities neither O.Ps filed any questionnaire nor filed their evidence on affidavit when this Commission has fixed the same, which tantamounts that in fact in support of the contents of Written Version no oral or documentary is forthcoming before this Commission.
Considering the evidence on affidavit filed by Complainant no. 1 on behalf of the Complainants and the connecting photocopies of documents furnished on behalf of the Complainants no doubt altogether are supporting the case of Complainants.
As no questionnaire is filed on behalf of the O.Ps so it can be said that the evidence of the Complainants becomes an unchallenged oral testimony. That apart the photocopies of documentary evidence introduced on behalf of the Complainants also speak a volume in support of complainant’s. So, it can be said that there is nothing to disbelieve to unchallenged testimony on behalf of the Complainants.
In view of the foregoing discussion and considering the attending facts of the case including material on record this Commission is of the view that complainants have succeeded in proving their case and accordingly, they are entitled to have the relief/s as sought for.
Hence, it is,
ORDERED
That the case being no. CC/287/2020 be and the same is allowed on contest against O.P No. 1 and O.P No. 2 with cost.
O.Ps are directed to refund the amount of Rs. 2,57,060/- to the complainants with an interest @ 8% p.a. from the date of payment till realization of entire amount and such amount should be paid by the O.Ps within 45 days from this order.
O.Ps are categorically directed to pay Rs. 50,000/- to the Complainants for compensation toward harassment within 45 days from the date of this order.
O.Ps are further directed to pay Rs. 10,000/- to the complainant toward litigation cost within 45 days from the date of this order.
Let copy of this order be given to the parties free of cost.
Dictated and corrected by
[HON'BLE MR. Shri Sankar Kumar Ghosh]
PRESIDENT
