Order-8.
Date-31/12/2015.
In this complaint Complainant Smt. Sumana Bhattacharyya by filing this complaint has submitted that ops published an advertisement in the leading News Paper and Website of Vibgyor Housing Ltd. for booking flat at Chandramukhi Apartment situated at Duttapukur and after reading the aforesaid advertisement made by ops, on good faith with an intention to purchase a residential flat booked Flat No. A4/1/B, situated at Chandramukhi Apartment at Duttapukur measuring about 660 sq. ft. being super built up area.
Thereafter an agreement for sale was executed on 18.04.2013 and complainant paid a sum of Rs. 2,11,200/- only as part of earnest money out of the total consideration money of Rs. 10,56,000/-.
Complainant paid an earnest money by three different cheques i.e. Rs. 20,000/- vide cheque No. 61348 dated 21.09.2012 of Bank of India at Free School Street Branch, thereafter Rs. 30,000/- vide cheque No. 61349 dated 30.09.2012 of Bank of India at Free School Street Branch, Bowbazar, Kolkata and subsequently a sum of Rs. 1,61,200/- vide cheque No.392160 dated 20.12.2012 drawn on State Bank of India at Sashi Bhusan Street.
Ops issued an allotment letter dated 01.03.2013 on receipt of Rs. 2,11,200/- and handed over it to the complainant by post from Vibgyor Tower of 87, Dr. Suresh Sarkar Road, Kolkata-14.
After receipt of allotment letter dated 01.03.2013 the op executed an Agreement for Sale on 18.04.2013 with the complainant in respect of allotment of Flat No. A4/1/B at 1st Floor of Tower-A4 at Chandramukhi Apartment at Duttapukur, Barasat and as per terms of the aforesaid agreement dated 18.04.2013 op obtained a sanctioned plan for the proposed construction and op informed the complainant that the construction had already been started and requested the complainant to pay the further payment as per terms of agreement dated 18.04.2013.
But to satisfy himself about progress of work complainant on investigating the spot was surprised to see that no construction has yet been started there.Thereafter complainant’s husband visited the office of the op and expressed their grievance.When on 18.09.2014 op offered the complainant by sending a letter for taking a flat in its mother project in lieu of the aforesaid allotted flat at Chandramukhi at Duttapukur and that letter was sent by post from Corporate Office Godrej Water side, 5th Floor, Block-DF, Plot No.6, Salt Lake, Kolkata- 700091.
By the aforesaid letter dated 18.09.2014 op also offered the complainant that if it is not suitable to take one flat in another project in lieu of the proposed flat at Chandramukhi at Duttapukur, the complainant may claim for refund of earnest money as per prescribed format attached therein along with this letter as complainant was not agreed or interested to take any flat in another project,so the complainant on 22.11.2014 deposited all the money receipts in original along with other documents as per the prescribed formats sent by the office of op before the op and op issued a receipt against complainant’s deposit of documents along with prescribed format and assured the complainant to refund the money within three months by Sri Avijit Das, the cancellation section.
But in spite of service of notice to the op, they are silent and complainant is willing to purchase the flat at Duttapukur but same has not been constructed and till date of filing the instant case op did not take any initiative or positive steps regarding the delivery of the flat or by handing over of completion certificate or have not refunded the amount as yet and in fact op deliberately and intentionally avoided to serve the complainants and by that way complainant has been harassed by the op continuously and at the same time complainant has been suffered mentally and physically andfrom financial loss and ops completely avoided the complainant and the above act on the part of the ops is no doubt unfair trade practice and negligent and deficient manner of service for which this complaint is filed.
On the other hand notices were duly served upon the ops but ops have not appeared for which this case is fixed for exparte hearing finally.
Decision with reasons
On overall evaluation of the complaint and the documents and also considering the non-appearance of the ops and their no intention to contest this case, we have gathered that there is no other alternative but to dispose of this case on the basis of the materials as produced by the complainant.
Fact remains that ops got chance to contest this case, but they have not appeared before this Forum and it was the practice of the Vibgyor company not to appear before this Forum because they have already cheated the complainant including many consumers for which the Director and other high officials are in the jail custody and they are in screening of Enforcement Directorate Government of India.
Anyhow in this case after considering the materials, it is found that Agreement to Sale dated 18.09.2014 was executed and as per agreement, developer obtained sanctioned plan from the Kashimpur Gram Panchayat dated 25.07.2012 and they reported that construction of the project had already been commenced.But in reality on the spot no construction has yet been started and as per said agreement Clause 6.4.1 developer shall have tomake the flat tenable within 36 months from the date of obtaining the plan.
Fact remains that sanctioned plan was issued on 25.07.2012.So invariably possession of the flat should be delivered by 25.07.2015.But in fact no construction has yet been started and that matter was reported and fact remains the total price of the flat was Rs. 10,56,000/- and no doubt complainant already paid a sum of Rs. 2,11,200/- but that has not been denied by the op or challenged by the op.
From the letter dated 31.05.2014 issued by Vibgyor Housing to the complainant, it is found that op asked the complainant to take any other flat at different project at same price as per choice of the complainant and it is also noted by that letter if complainant can adjust his amount for different location as per stock availability and from that letter it is proved that the present construction has not been started.
Subsequently by letter dated 18.09.2014 op reported to the complainant that if complainant does not find itsuitable as per their requirement, complainant can approach to the op for refund of claim as per prescribed format and in the above situation complainant prayed for refund of the claim as per prescribed format and same was submitted to the op and op issued receipt but ultimately did not refund the same and most interesting factor is that this is the common practice of the Vibgyor Housing Group and in fact they deceived so many customers and already collected more than Rs. 700 crores and which has been otherwise used in some other business and thereby deceived the customers like the complainant.
When the ops got chance to defend the case but did not contest,then relying upon the ops’ own document, we are convinced that complainant is being deceived by the ops and no doubt op has admitted the acceptance of the said amount of Rs.2,11,200/-.But as per agreement nothing has been done and as per contract i.e. agreement to sale ops have not discharged their liability properly and did not render service also and further the very act of the op tantamounts to deficiency of service and also unfair practice.In view of the above findings and materials, we are inclined to hold that complainant has been able to prove all sorts of deficiency and negligence and unfair practice as practiced by the op regarding this agreement to sale and thereby they have deceived the complainant and has also caused mental pain and agony and financial lossthough the entire amount of Rs. 2,11,200/- was received ultimately on 20.12.2012 and since then complainant has not got any interest of the same and no benefit has yet been received from the op and for which the present complaint succeeds and complainant is entitled to get relief as prayed for.
Hence, it is
Ordered,
That the complaint be and the same is allowed exparte against the ops with cost of Rs. 10,000/-.
Ops are hereby directed to refund the entire advanced amount of Rs. 2,11,200/- along with 12 percent interest p.a. over the same w.e.f. 20.12.2012 and till its full payment to the complainant.
For harassing the complainant and also for deceiving the complainant in such a manner and further for adopting unfair practice, ops shall have to pay a sum of Rs. 50,000/- to the complainant.
Ops are jointly and severally shall have to pay the entire decretal amount within one month from the date of this order failing which for non-compliance of the Forum’s order, they shall have to pay penal damages of Rs. 2,000/- per month 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 this order, in that case, a penal proceeding u/s 25 read with Section 27 of C.P. Act, 1986 shall be started against them for which further penalty and fine shall be imposed upon ops.
