Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No.85/2021

This  case has been filed by the complainant against the OP for passing direction to the OP to return back the booking amount of Rs. 1,20,000/- in respect of the flat under ‘Bhalobasa’ Project  alongwith interest and also for payment of compensation and  litigation cost.

Case of the complainant  -  The case of the complainant which is deciphered  from the complaint petition in bird’s eye view  is that the complainant  intended  to purchase  a self-contained flat in the ‘Bhalobasa’ Project at the 3^rd Floor of the building bearing   Premises No. 24, South Raynagar, Ward No. 112, KMC, Kolkata – 700 070 constructed by the respondent  Company.  It is stated  that the complainant  entered into  an Agreement for Sale dtd. 30^th December, 2019 with the respondent  in respect of purchase of said flat and the said Agreement for Sale  has been  executed by the representative / Managing Director of the respondent  Company and the complainant agreed  to purchase  the said flat which has been described  in the B Schedule property  at the total consideration of money  of Rs. 22, 00, 000/-  out of which the complainant  has paid Rs. 1, 20,000/-  through Cheque No. 065802 dtd. 30.12.2019  to the respondent  which has been  fully described in the Memorandum of Consideration in the said Agreement for Sale .  It is pointed out that complainant was in urgent need of money loan to purchase the said flat  and for that reason  applied to State Bank of India, Makardah Branch and the Branch Manager intimated  the complainant by a letter dtd. 26.02.2020 that as per  valuer it has been  observed that the area  stated in the Agreement for Sale  and the physical position  of the said flat is different  in size and measurement  and so it is not possible  for the Bank to process the said loan.  According to the case of the complainant  it was better for abstaining  herself from completing  the purchase  and for that reason the complainant  requested the respondent  Company to cancel  the said agreement  and to refund the advance  money of Rs. 1,20,000/- alongwith  interest  but  the complainant did not pay any heed  in such appeal of complainant  and for that reason the complainant  had sent  notice  and in spite of  receiving the said notice  the OP had not refunded  the said amount  and so finding no other alternative  the complainant  has instituted this case against the OP. 

Defence Case  -   After  service of the notice the respondent  appeared before this District Commission  and filed W/V where the  respondent has denied  each and every allegations  of the complainant  which has been described  in the complaint petition.  This specific  case of the OPs  in a nutshell   is that the complainant in the year 2019 approached  the OP and expressed her desired to purchase self-contained  flat  at Premises No. 24, South Raynagar,  Ward No. 112, KMC, Kolkata – 700 070 and the OP after scrutinizing  the documents  nodded its approval  in the matter of purchasing  of said  flat and accordingly paid a sum of Rs. 1,20,000/- as an advance non-refundable  deposit  and thereafter  the complainant  & OP executed  an Agreement for Sale dtd. 30.12.2019 and after passage of time the complainant  adopted the story of the bank would not disburse  the complainant  had no other alternative  but to restrain herself  from purchasing the said flat and she sought for refund  of the advance amount.  It is alleged that the OP is a developer  who entered into a development agreement with the owner of the land  and on the basis  of mutual arrangement entered into a development agreement  along with  confirming parties .  It is further  submitted that upon the death of the owner the confirming parties of the agreement  did not  intend  to renew  the agreement  and due to such non renewal of the said agreement  the contractual  obligation  is now existing  at a standstill condition.  It is further alleged that  the legal heirs  of the original owners are now demanding exorbitant  money which is  possible for the OP for payment  and due to such condition  the developer is  unable to proceed  with the work  and to continue  the said project.  For all these reasons  the OP has paid  before this District Commission for dismissing this complaint case with heavy cost.

Points of consideration  -  On the basis of the pleadings  of the parties this District Commission for the interest of proper and complete adjudication  of this case  and also for the purpose  of arriving at just and proper decision in this case is going to adopt the following points of consideration :-

1. Is this case maintainable  in present form and in the eye of law?
2. Whether this case under the jurisdiction of this District Commission or not ?
3. Is the complainant consumer under the OP or not?
4. Whether the complainant  is entitled to get refund  of the advance  money of Rs. 1,20,000/- alongwith  interest  and compensation amount as well as litigation cost or not?
5. To what other relief / reliefs  is the complainant  is entitled to get in this case?

Evidence on record  -  The complainant  in order to prove her case has filed her evidence on affidavit but the OPs in spite of getting sufficient  opportunity  has neither filed any questionnaire against the  said evidence on affidavit  of the complainant in order to file any evidence on affidavit to disprove  the case of complainant.

Argument highlightedby the parties  -  In course of argument the complainant side has filed her Brief Notes on Argument and in addition to the said Brief Notes on Argument the complainant side  has also highlighted verbal submission  and in course of argument has given emphasis  on the oral and documentary  evidence  lying in this case record.

Decision with reason -  All the above noted points of consideration are clubbed together and taken up for discussion jointly for the interest of convenience  of discussion  and also on the reason that the questions involved  in the above noted points of consideration are interlinked and / or interconnected  with one another.

For the purposeof arriving at just and properdecision and also for the interestof proper and complete adjudication of the fate of this complaint case, this District Commission finds that there is urgent necessityof making scrutiny of the evidence on record .After going through the material of this case recordand also after examiningthe evidence on record, this District Commission finds that the complainantin order to purchase the flat which has been describedin the B Scheduleof the complaint petition has paid Rs. 1,20,000/- to the respondentCompany and one agreement was also executed.The OP in the W/V has admitted the said fact.In this regard, it is important to note that it is the settle principle of law ‘fact admitted need not be proved’.This legal principle has been laid down in the provisions of Section 58 of the Indian Evidence Act.

Under the above noted circumstances it is crystal clear that the complainantis a consumerunder the OP and for that reason this case is maintainablein its present form as well as in the eye of law.It is also very important to note thatthe OP in spite of making admissionof acceptingthe advance money of Rs. 1,20,000/-,had not refunded the sum particularlywhenthey failed to complete the project due to the disturbance cause by the legal heirsof the ownerof the said land.This matteris clearly indicatingthat the complainanthas cause of actionfor filing this case.Moreover the complainant is a permanentresident of Makardah area under P.S. Domjur which is situatedwithin the District of Howrah.

In view of such positionthis District Commission finds thatit has its territorialjurisdiction to try this case and the total claim of the complainant is far below thanthe pecuniary limit of Rs. 50,00,000/-.So, it is crystal clearthat this District Commissionhas its pecuniary jurisdiction as well.

On the backgroundof the above noted facts & circumstances, this District Commissionafter makingscrutiny of the evidence on affidavitfinds that the OP has not filed any interrogatoriesagainst the evidence on affidavit filed by the complainantand for that reason it is crystalclearthat the OP has admittedthe fact which has beendescribed in the evidence on affidavit submitted by the complainant.On close compareof the complaint petitionwith the evidence on affidavitfiled by the complainant,this District Commission finds thatthe evidenceon affidavitwhich has been filed by the complainant is the replica of the complaint petition .Moreover, when there is no cross examination on the part of the OP, it is crystal clear that the evidence which has been given by complainant has not beencontroverted and / orshakened in anyway.There is nothing but possible the unchallenged / uncontroverted testimony of the complainant.On the basisof the evidencegiven by the complainant which remains unchallenged this District Commission finds that the complainant has proved her case in respect of all the points of consideration which has been adopted in this case.

Thus, it is crystal clearthat complainant is entitled to get relief which has been prayed in this case and so all the points of considerationtaken up for discussionin this case, are decided in favour of the complainant side .

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 85/2021 be and the same is allowed on contest against the OP.

It is heldthat the complainant is entitled to get back the advance money of Rs. 1,20,000/- from the OP and OP is directed to pay the said amount alongwith interest@ 9% per annumto the complainantwithin 45 days from the date of passing of this judgment.Otherwise the complainant is given liberty to execute this award as per law.No order is passed in respect of compensation and litigation cost.

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment be uploaded in the official website of this District Commission immediately.

            Dictated & corrected by me

                President