BEFORE THE DIST.CONSUMER DISPUTES REDRESSAL FORUM, KHURDA, BHUBANESWAR:

                                                -ooOoo-

PRESENT : 1)      MR.N.MOHAPATRA  :         PRESIDENT

                   2)      MISS K.NAYAK           :         MEMBER

C.D.CASE NO.  27/2015

Mrs. Chinu Rani Das, aged about 47 years,

W/o Mr.Chinmaya Kumar Das,

At : Plot No.1546/4178, Gobinda Prasad,

Jagannath Road, PO: Laxmisagar,

Bhubaneswar, Dist : Khurda

                                                          ….     Complainant

          -Vrs.-

1. Orissa Homes Pvt. Ltd.,

At: Plot No.175, Kuha, Jatni Road,

PO: Old Town, Bhubaneswar – 751002,

PS:

2. Orissa Homes Pvt. Ltd.,

Represented through its Director,

Mr. Lokanath Patra,

S/o Pratap Chandra Patra,

At : Plot No.175, Kuha,

Jatni Road, PO: Old town,

Bhubaneswar – 751002, PS: Airfield.

Dist : Khordha

                                                          …     Opp. Parties

For the complainant      …  Sri P.Choudhury & Another (Adv.)

For the OPs                             …  Sri L.K.Behera & Others (Adv.)

ORDER : DATED – 28/06/2017

MR.N.MOHAPATRA, PRESIDENT  :

1.       The case has been filed to direct the OPs  to refund  Rs.3,10,000/- , payment of compensation & litigation cost.  

2.       The complaint in nutshell is that the complainants being  aspirants for acquiring a residential flats, booked two flats for the same developed by the OPs at Jatni under the name & style as “Anand Homes” on payment of consideration amount of Rs.3,10,000/- to the OPs  (Rs.1,55,00/- for each flat) as advance money.  An agreement was also executed between the parties  on 03/05/2013 allotting flat Nos. 9 & 10 (2BHK) in 5^th Floor, Block- C of the said project where the total cost of the said two flats was fixed at Rs.15,50,000/-   which includes cost of car parking.  When the matter stood thus,  due to some unforeseen reason, the complainant could not pay the balance consideration money to the OPs, as such he requested them not to proceed with the project rather wrote letter to make refund of the advance money  and after long persuasions, the OPs did not pay the same. Finally being aggrieved the complainant sent pleader’s notice on 21/10/2014  &  24/12/2014   requesting the OPs to make refund of the consideration amount of Rs.3,10,000/- but the subsequent notice was returned with  postal remark that “the addressee is absent”.   It is averred that there is a clause in the agreement that if any customers cancel the agreement, they shall be entitled to get refund of the amount deposited after 90 days and within 120 days and in the instant case, the complainant though followed the same, the OPs paid no heed to refund the amount. Hence alleging deficiency in service on the part of the OPs,  the complainant  filed this case praying relief as stated above.

3.       The OPs in his written version filed in shape of affidavit stated that the case is not maintainable, there is no cause of action and the case is not maintainable for non-joinder of necessary parties. This Forum has no jurisdiction to adjudicate the present dispute in view of arbitration clause  contained  the agreement and there is no deficiency in service or unfair trade practice committed by the OPs and therefore the case is liable to be dismissed.

4.       The OPs,  after filing written version in shape of affidavit,  did not prefer to contest the case.

5.       The complainant has filed evidence affidavit.

6.       Heard the case on merit from the complainant and perused the materials placed on record.

7.       It is submitted by the learned counsel for the complainant that the OPs have received Rs.3,10,000/-  from the complainant on 03/05/2013 as part consideration money for the two flats under the project as stated above and in this respect the agreement was also executed between them allotting two flats but as the complainant could not able to pay the balance consideration money and as such requested for refund of the advance money of Rs.3,10,000/-  vide letter dated 30/04/2014  and though the OPs assured to refund the  same within a stipulated period of three months, they did not do so which is not justified and proper on the part of the OPs.  Hence the amount is liable to be refunded  by the OPs with interest.

8.       It appears from the record that the complainant has paid Rs.3,10,000/- in aggregate to the OPs in order to purchase   the flats in question. We find the dispute arises only when the OPs did not make refund of the deposited amount even after several persuasions & correspondences to the OPs. In our considered view, when the complainant cancelled the agreement and did not want to proceed with the project, the advance money deposited with the OPs is liable to be refunded by them but this having not done by the OPs, they are deficient in service and as such the complainant is  entitled to get refund of the entire amount of Rs.3,10,000/- with interest.  But the OPs,  after receiving the part consideration amount for the flats from the complainant,  slept over the matter and did not take any positive step to refund the amount.  As such the OPs are deficient in rendering proper service for which they are liable to be compensated.

9.       The submission as well as pleadings of the complainant remained un-challenged and uncontroverted as because the OPs took no step to contest the proceeding. Therefore, the entire act of the OPs amounts to gross deficiency in service & unfair trade practice.

10.     Further in this context, we rely on the decision of Hon’ble National Commission in the case of  M.Lakshma Reddy & Anr. Vrs: M/s Vishnu Homes & Builders & Developers reported in 2012 (3)CPR – 530 (NC) wherein it has been held “Delay in handing over possession of property constitutes deficiency in service.” Further, in another decision of Hon’ble National Commission in case No.313/10 in case of Smt. Kamna Malhotra Vrs: Samiah International Builders  Private Ltd. & Others reported in 2012 (3) –CPR-119 , it has been clearly stated  that “Misuse of advance money by construction companies amounts to unfair trade practice & deficiency in service.”  

11.     In view of the above findings, in our considered opinion, the complainant is entitled to get relief. Hence it is ordered.

ORDER

          In the result, the complaint  is hereby allowed on merit against the OPs. The OPs are hereby directed to refund the amount of  Rs.3,10,000/- (Rupees three lakhs & ten thousand) only to the complainant along with interest at the rate of 12% per annum thereon from the date of  respective receipt till the date of actual refund. The litigation cost is assessed at Rs.5000/- payable by the OPs to the complainant. The entire money be paid by the OPs  to the complainant  within a period of one month from the date of communication of this order, failing which the complainant is at liberty to recover the same from the OPs in accordance with law.

          The order is pronounced on this day the 28^th June, 2017  in the open Forum under the seal & signature of the Forum.

                                                          (MR.N.MOHAPATRA)

                                                                 PRESIDENT

Dictated & corrected by me 

          President

I agree

Member  (W)         

Transcribed by Smt.M.Kanungo, Sr.Steno :