Date of filing :1.8.2017
Judgment : Dt.11.11.2019
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by (1) Mousumi Nag and (2) Milan Kumar Nag alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Shribhumi Realty Pvt. Ltd., (2) Mr. Gopal Malakar, (3) Mr. Soumitra Roy, (4) Mr. Biswabrata Maity and (5) Mr. Sagar Ganguly and (6) Mr. Samit Dutta (name of OP No.6 striked out by the order of Hon’ble State Commission).
Case of the Complainant, in short, is that the OP No.1 is a Real Estate Company which performs buying, selling, renting and operating of self-owned or leased real estate. OP No.2 to 5 are the directors and/or the former Directors of OP No.1 and have used the fund of company on different points of time to their benefits. By way of wide publication through internet advertising agency, Complainant got in touch with the representative of OP Company for purchasing a flat in the project namely Sribhumi under the LIG category and paid a sum of Rs.1,00,000/- in favour of OP No.1 by way of two cheques being cheque No.057523 and 057524 dt.15.3.2014 and 10.04.2014 respectively. Pursuant to the payment of Rs.1,00,000/- one money receipt being No.037 dt.9.4.2014 was issued in favour of the Complainants by the then authorized signatory of the OP. Complainants thereafter further paid an amount of Rs.1,52,000/- for the said flat by way of one cheque being No.057525 dt.1.7.2014 and accordingly a money receipt dt.29.6.2014 was issued in favour of the Complainants. An indenture of sale dt.29.6.2014 was also executed between the parties. But the OPs have failed to complete the said project within the stipulated time. They have also not refunded the booking amount to the Complainants. So, Complainants wrote a letter to the OP No.2 one of the Directors, on 6.7.2016, requesting for cancellation of the booking of the said flat and to refund the said amount paid by the Complainants. But the OPs have not refunded the said amount. A case was also filed earlier by the Complainants. But, due to some formal defects, said complaint case being No.527 of 2016 was allowed to be withdrawn on the prayer of the Complainant with liberty to file a fresh complaint on the same self cause of action. So, the present complaint has been filed praying for directing the OPs to jointly and severally return Rs.2,52,000/- towards booking amount paid by the Complainants along with an interest @ 10%, to pay compensation of Rs.1,00,000/- and litigation cost of Rs.20,000/-.
Complainant has annexed with the complaint petition, the copy of the receipt showing payment of amount by the Complainants, copy of the indenture for sale dt.26.9.2014 and copy of the order passed by the Forum on 27.3.2017 in CC/527/2016.
On perusal of the record, it appears that barring OP Samit Datta, no other OP took any step in spite of service of notice and so the case has proceeded ex-parte against them. The name of OP Samit Datta has been striked out by the order of the Hon’ble State Commission.
Complainants in support of their case have filed affidavit-in-chief, ultimately argument has also been advanced by the Complainants.
So, the points require determination are -
- Whether there has been any deficiency in service on the part of the OPs?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussion. Complainants have claimed that they booked a flat under LIG category and paid a sum of Rs.1,00,000/- and Rs.1,52,000/- by way of cheques. In support of the said claim and payments, Complainants have filed two receipts issued by the OP No.1 Company on 9.4.2014 and 29.6.2014 acknowledging receiving of the cheques issued by the Complainants. Complainants have also filed the indenture for sale dt.29.6.2014, wherefrom it appears that the said agreement was entered into between the OP No.1 Company being represented by its Director namely Gopal Malakar/OP No.2, Abhoy Makhal the owner and the present Complainants for purchasing a flat by Complainants as described therein in the agreement, at a total consideration of Rs.8,40,000/-. It is the specific claim of the Complainants that the said project has not been completed by the OPs and neither the OPs have refunded the amount paid by the Complainants. It may, however, be pointed out that Abhoy Makhal who is a party to the agreement as owner has not been made a party in this case. But on a careful scrutiny of the said indenture for sale, it appears that OP No.1 Company was also the owner in respect of some of the plots described therein. Since the money was paid by the Complainants to the OP No.1 Company and this case is filed only to refund the earnest money paid by the Complainants, non-adding of owner Abhoy Makhal as party in this case will not affect the maintainability of the case. So, as neither the flat has been handed over to the Complainants nor the money paid by the Complainants have been refunded, OP No.1 being the Company and OP No.2 to 5 the Directors, are liable to refund the amount paid by the Complainants, along with interest (in the form of compensation).
Hence
ordered
CC/442/2017 is allowed ex-parte. OP No.1 to 5 are jointly and severely directed to refund Rs.2,52,000/- to the Complainants along with interest on the said sum @ 10% p.a. from the date of last payment i.e. 29.6.2014 to till this date, within two months from the date of this order. OPs are further directed to pay litigation cost of Rs.12,000/- within the aforesaid period of two months, in default the entire sum shall carry interest @ 10% till realisation.
