Order-11.
Date-30/06/2015. .
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant intended to purchase one flat to be sold by the OP as per advertisement made in the year 2012 (October) wherein it was specifically mentioned the date of delivery of possession to be the month of December, 2014 as such the complainants had paid to the OP and/or parties a total sum of Rs.2,14,080/- by cheque dated 15-12-2012 for purchasing a flat of the building as described in Schedule ‘C’ of the copy supplied to the complainant and the flat for which the complainant paid the above stated sum for purchasing is at 3rd Floor, Flat No.D1/3C, at Vibgyor Housing Ltd. at Barasat, North 24 Pgs. Complainant after a few days before visit to the project site at Gunjan Phase II to see the possession and progress of construction but nothing is yet been started not even foundation pillar has been fixed or raised in the land and there is no sign of any construction or developments and in the above act of the OP complainant was astonished and considering his future complainant went to the OP and expressed that it is impossible for them to wait for long period, so prayed for cancellation of the agreement through their Ld. Advocate vide a letter dated 31-01-2014 with a prayer to return the advance money for purchase of the said flat but in spite of cancellation of the booking agreement dated 31-01-2014 OP did not refund the advance money including the interest etc.
Subsequently, OP issued a letter dated 06-09-2014 wherein they mentioned that Vibgyor will repay the amount after taking the service charge and it will be repaid by three instalments at the rateRs.68,221/- from November, 2014 and also sent a cheque of Rs.20,000/- dated 16-02-2015 which was bounced and for which the complainant paid Rs.112 to SBI for cheque bounce. So, in the above circumstances, for negligent and deficient manner of service and also for adopting deceptive manner of payment complainant has filed this complaint for redressal.
OP appeared in this case after receipt of notice. Thereafter, prayed for filing written version after their appearance this Forum granted prayer subject to payment of Rs.5,000/- in default hearing of the argument of this case and on 24-06-2015 Ld. Lawyer for the OP and complainant’s Ld. Lawyer are found but cost was not deposited and written version was not filed so the argument was heard in presence of the lawyers of both the parties
In the above situation the case is heard contested.
Decision with Reasons
After hearing of Ld. Lawyer of the OP and the complainant and also considering the arguments including the letter of the OP to the complainant after cancellation of the agreement to sale dated 30-05-2013 and further considering the cancellation of the said agreement by the complainant and accepted by the OP we are convinced that OP no doubt received Rs.2,14,080/- as advance and by a letter OP informed that the amount shall be refunded but it shall be paid by three instalments but ultimately did not pay any instalment and fact remains as per OP’s demand it would be paid by 14-01-2015 but we have gathered that up to 14-01-2015 the sum has not been paid but at the time of argument of hearing Ld. Layer of the OP submitted that they are willing to pay it with some interest but compensation may be considered.
On overall evaluation of the materials on record and admission of the OP including the documents it is clear that the agreement has been cancelled but the payment was made by the complainant in the year December, 2014 as advance and this amount is Rs.2,14,080/-. Thereafter, it was observed by the complainant at the development site that no construction has been started and that is the fact which has been admitted by the OP’s Ld. Lawyer in the open Forum. So, it is proved that OP is willing to refund the sum but the question is when he shall have to refund it. According to OP it would be paid by 14-01-2015 and now it is 25-06-2015 that means already 5 months expired and in the meantime by spending this amount OP has made many types of profits whereas complainant suffered very financial loss and also failed to enjoy the flat and even after cancellation he has failed to enjoy the monthly interest if it would be fixed for 2 or 3 years. No doubt at present banking interest of fixed deposit above Rs.1 lakh is 9.25 percent, invariably OP shall have to pay that interest over the said amount with effect from 20-10-2012 till its full payment and Ld. Lawyer for the OP also admitted that they will give some banking interest. Whatever it may be the conduct of the OP as promoter or developer or as company is no doubt deceitful in manner and from this complaint it is proved that many customers have been deceived by the OP and they are also loitering for getting money and in the meantime so many cases are being filed before this Forum against VIBGYOR for refund of money so, we are convinced to hold that this OP has been/had been running a deceitful manner of trade or deceiving the customer in such a manner and in fact OP has been receiving the money from those people who are in need of flat and then OP are placing them on the street and also enjoying the profit of the said capital and such sort of practice on the part of the OP is unfair trade practice and it is proved beyond any manner of doubt. Truth is that the directors or the actual owner of the business is in the jail custody. Truth is that this OP has misappropriated huge amount by such means. So, the allegation as made by the complainant against the OP is proved beyond any manner of doubt. Invariably complainant is entitled to get refund of Rs.2,14,080/- with interest at the rate9.25 percent p.a. over the sum from 20-10-2012 and till its full payment by the OP and further entitled to get litigation cost because he has filed this complaint for redressal which has not been redressed by the OP though OP committed to do that by 14-01-2015.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OPs.
OPs are hereby directed to refund the entire advance received amount of Rs.2,14,080/- and also interest at the rate9.25 percent over the said amount with effect from 20-10-2012 till its full payment to the complainant but the entire amount including litigation cost will be paid to the complainant within one month from the date of this order.
In that case for non-compliance of the Forum’s order penal damages at the rateRs.200/- shall be assessed till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.
Even if it is found that OPs are reluctant to comply the order in that case penal action u/s.27 of the C.P. Act, shall be started against them for which further penalty and fine shall be imposed.
