FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, MEMBER.
Briefly stated, the facts of the case are that the complainant approached the OP Vibgyor Housing Limited for purchasing a flat being 1A/3B on the 3rd floor, measuring an area of 660 Sq.ft. of Tower-I at Jamtagar, village – Malikpur, P.S. – Barasat under IchapurNilgunge Gram Panchayaet . District – 24 Parganas (North) , West Bengal , under their project namely VIBGYOR HOUSING – GUNJAN (BARASAT) at a consideration of Rs.9,24,000/- and paid 10,000/- to the OP as booking money by cash on 14.05.2012 and as per terms and conditions of the application the complainants further paid a sum of Rs.1,75,000/- by demand draft bearing No.5084 dated 30.05.2012 and Rs.44,815/- by cash to the OP . Accordingly , as per OP’s demand the
complainant paid an amount of Rs.8,75,030/- to the OP time to time out of total consideration and the OP was bound and obliged to execute agreement for sale of the subject flat in favor of the complainants. But the OP took time day by day and finally sent a draft copy of agreement for sale to the complainants without putting any signature. In the meantime the complainant keep on knocking the OP regarding the status of the subject flat and also made several requests to execute the registered the agreement for sale. But the OP neither delivered and/or handed over possession of the flat in question nor refunded the amount which was paid by the complainants to the OP .Finding no other alternative, the complainant has filed the instant complaint before this Commission seeking redress and relief(s) as incorporated in the prayer of the complaint .
The OPs have contested the case by filing written version contending, inter alia, that the instant case is not maintainable either in fact as well as in law and the complainant has no cause of action to bring the case. The specific case of the OP is that OP is the sister concern of Vibgyor Groups and vide Memo No.1738(19)/IM-101/2013 dated 10-05-2013 the Government of West Bengal debarred the Vendor and its sister concerns from presenting any Deed before any Registering Authority throughout the West Bengal. As a result of such restriction, the OPs compelled to stop the construction work. The said order is still subsisting. The OPs filed writ petition before the Hon’ble High Court, Calcutta against such order and the said writ petition is still pending. Further case of the OPs is that various depositors/creditors filed Several Public Interest Litigations in the form of Writ Petitions before the Hon’ble High Court against the OPs including its sister concern companies and its directors where the Hon’ble High Court vide order dated 04-08-2016 in W.P. No.16946(W) of 2015 has been pleased to restrain the OPs to create any third party interest without leave of the Hon’ble Court and on the same date the in W.P. No.24667(W) of 2015 the Hon’ble High Court has been pleased to restrain the OPs to create any third party interest without ;eave of the Hon’ble Court . The OPs voluntarily filed an Affidavit before the Hon’ble Court disclosing its assets and liabilities prior to institution of the instant complaint with a prayer to sell the assets of the company with a view to liquidate the dues of the depositors. The Hon’ble High Court has been pleased to refer those PLIs before the Hon’ble One Man Committee for valuation. The Hon’ble Committee has been able to get valuation of some of the properties which worth Rs.98 crores and on the next date of hearing notice for auction of those properties will be given. The OPs also denied all the material allegations made out in the complaint and have prayed for dismissal of the complaint with exemplary costs.
In the light of the pleadings of parties, the following points necessarily came up for determination.
- Is the complaint a consumer under Section 35(7)(ii) of the C.P. Act, 2019?
- Have the OPs deficient in rendering proper service to the complainant?
- Is the complainant deserves any relief or reliefs as prayed for?
Decision with Reasons
Points No.1 to 3 :
All the points are taken up together for the convenience and brevity of discussion.
Upon taking into account of the entire fact of the complaint petition including the written version of the OP and also considering the argument as advanced by the Ld. Advocates of both sides and further on overall assessment and evaluation of the evidence as well as Annexures furnished by the complainant it is found that complainant approached to OP for purchasing a flat measuring about 660 sq.ft being No. 1A/3B on the 3rd floor of Tower-I atJamtagar , village – Malikpur, P.S. – Barasat under IchapurNilgunge Gram Panchayaet . District – 24 Parganas (North) , West Bengal , under their project namely VIBGYOR HOUSING – GUNJAN (BARASAT)at a consideration of Rs.9,24,000/- and paid an amount of Rs.10,000/- as booking money by cash on14-05-2012to the OP.On perusal of the Money Receipts dated 14-05-2012 , 30-05-2012 and 07.08.2013 we found that the complainant deposited an amount of Rs. 10,000/- and Rs.44815/-by cash and issued one Demand Draft/ Chequebeing No. 5084 amounting to Rs.1,75,000/- in favor of the OP in respect of the said flat and the OPs granted money receipts.Thus, the complainant has already paid Rs.8,75,030/- out of total consideration of Rs.9,24,000/- .One draft copy of an unregisteredAgreement For Salewithout signatures also annexed by the complainant which is provided by the OP to the complainant as submitted by the complainant.
In their written version the OPs have challenged the maintainability of the complaint case denying and disputing all the allegations made by the complainant by submitting that no draft copy of Agreement for Sale sent to the complainant without putting any signature.Ld. Advocate for the OP Submitted in the time of argument that OPis the sister concern of Vibgyor Groups and vide Memo No.1738(19)/IM-101/2013 dated 10-05-2013 the Government of West Bengal debarred the Vendor and its sister concerns from presenting any Deed before any Registering Authority throughout the West Bengal.
Photocopy of order vide Memo No.1738/IM-101/2013 dated 10-05-2013 annexed with the E/Chief of the OP including a photocopy of list of 73 companies of the State of West Bengal against which complaints have been received for indulging in Ponzi/MLM Schemes.On scrutiny of photo copies of those documents, we find that M/s. Vibgyor Allied Infrastructure Ltd. is included in the said list (Serial No.01) andthe suit property i.e. GUNJAN BARASAT is included in the list of the above mentioned movable property (Serial No. 08) . In the Memo No.1738/IN-101/2013 dated 10-05-2013 Additional Secretary, Finance Department and Inspector General of Registration and Commissioner of Stamp of Revenue, W.B. direct all the District Registrars/Registrar of Assurance, Kolkata under their control to refuse acceptance of presentation of any kind of documents either executed by any of the companies or on behalf of them until further order.
Photocopy of the order dated 12.08.2016 of the Hon’ble High Court Passed W.P.24667(W) of 2015 annexed with the E/Chief of the OP goes to show that the then Hon’ble Chief Justice ManjulaChellur and Hon’ble Chief Justice JoymalyaBagchi directed the Group of Company(s)/Firm(s)not to dispose of any of the movable and immovableproperties till further orders . Similarly , the Director(s) / Partner(s) of the respondent Group of Company(s) / Firm(s) are directed not to dispose of or shallnot create any encumbrances of their valuable movable or immovable properties till further orders . The embargostill continues.
The Hon’ble High Court vide order dated 15-02-2017 directed the petitioners of Writ petition Nos.W.P. 24667 (W) of 2015, W.P. 6327(W) of 2016, W.P. 16946(W) of 2015 , W.P. 430(W) of 2016, W.P. 8361 (W) of 2016, W.P. 22086(W) of 2016, W.P.24762(W) of 2016 and W.P. 30026(W) of 2015 to furnish the assets of the companies concerned before the One Man Committee.Upon ascertaining the assets and liabilities of the companies concerned, the committee shall have the assets valued through the Collectors in the Districts and through the Registrar of Assurance so far the town of Kolkata is concerned. Photocopy of the order dated 15-02-2017 of the Hon’ble High Court passed in PILs annexed with the E/Chief by the OP.Vibgyor Group of Companies furnished their assets including the property fully mentioned in the schedule of the complaint petition before the One Man Committee in terms of the order of the Hon’ble High Court, Kolkata .The Nodal Officer of the One Man Committee wrote to the various authorities like District Magistrates of different Districts seeking detailed list of the assets of the company concerned and valuation thereof.
OP is the Sister Concern of Vibgyor Groups.The Schedule property fully described in the complaint petition is under the disposal of the Hon’ble Court and Vibgyor Group challenged the order dated 10-05-2013 of the Directorate of Registration and Stamp Revenue, Government of West Bengal before the Hon’ble Court and their petition is still pending for disposal.In this context, it is pertinent to mention here that the orders of the Hon’ble High Court as well as the Directorate of Registration and Stamp Revenue, Government of West Bengal were passed prior to the draft copy of the Agreement for Sale dated January 2015 annexed by the complainant andmoney receipt dated 07.08.2013 issued by the OP and also presentation of the instant petition of complaint before this Commission .
Regard being had to the entire facts and circumstances of the case coupled with evidence and documents on record, we are of opinion that the complaint is not maintainable in its present form and in law before the Forum.We do not go into the merit of the case in view of the embargo of the Hon’bleHigh Court as well as Directorate of Registration and Stamp Revenue, Government of West Bengal though the complainant is a consumer under Section 2(7)(ii) of the C.P. Act, 2019.The complainant may approach his redressal before the appropriate forum.
In the result, the case fails.
Hence,
That the complaint case being No.535 of 2018 be and the same is dismissed on contest against the OPs.
No cost is imposed upon any of the parties.
