Date of filing : 16.03.2017

Date of Judgment : 23.12.2019

Mrs. Balaka Chatterjee, Hon’ble Member

          This petition of complaint  is filed  under Section  12 of the Consumer Protection Act, 1986 by  Shri Bhaskar Ganguly alleging restrictive trade practice, unfair trade practice on the part of the Opposite Parties ( referred as OP hereinafter ) Sushovon Construction represented by (1) Pradip  Saha (2) Sandip Saha.

          Case of the complainant in brief is that the complainant along with his  family members used to reside in rented  accommodation and was in search of his own accommodation and while in search of such accommodation  he met with OP No.2 who  introduced himself  as a Promoter  and thereafter the complainant came  to know that the said OP No.2  happened to be  the brother of OP No.1 and was associated with his brother  i.e. OP No.1 who was the proprietor of a construction company namely Sushovon Construction. The complainant along with his father  went to the Office of the OPs and being satisfied with the proposal of the OPs intended  to purchase  a flat to be constructed  by the OPs and, therefore visited the proposed site lying and situated to khatian no.763/779, R.S. No. 275, Babupara, Kolkata – 700 093. The complainant  has stated  the OPs assured them that the construction of the building  would be completed within  15 months i.e.  The end of  May, 2014 and being satisfied  the complainant  booked a flat  measuring about  700 sq.ft.  in the project lodged by the OPs  at a consideration of Rs. 11,00,000/- and accordingly paid a sum of Rs. 10,000/- on 03.03.2013 in cash and Rs. 1,25,000/- on 11.03.2013 vide  cheque bearing no. 275856, another   amount of Rs.  1,25,000/-  vide  cheque no. 275857 dated 11.03.2013 and Rs. 2,50,000/- vide cheque no. 275854 dated 13.03.2013  totalling  an amount of Rs. 5,10,000/- vide cheque no. 275854 dated 13.03.2013 totalling  an amount of Rs.  5,10,000/-. The  complainant  has further stated that the said  cheques were encashed  in favour of the Ops but the flat in question had not been completed within agreed period of time and on repeated requests for delivery of possession of the said flat the OPs only  provided verbal assurances but that too had not been translated into reality. It is stated by the  complainant that OPs after receiving  several requests  from the end of the  complainant  agreed to refund Rs. 2,00,000/- on or about last week of February, 2013 and refunded the same  by two post dated cheques.  However, on deposition, said  cheques  were  dishonoured by the bank on the ground  of insufficient fund and remaining Rs. 3,10,000/- as stated by the Ops,  kept as earnest money.

          It is further stated by the complainant that the OP No. 1 on 24.07.2015 submitted before Ld. ACJM Alipore that he would hand over the possession of the flat within sixty days by swearing an affidavit but failed to do the same.

Being aggrieved,  the complainant by filing the instant case prayed direction upon the Ops to refund Rs. 5,10,000/- along with interest @10% P.a. amounting Rs. 2,88,500/-, to pay Rs. 2,66,000 towards rent paid by the complainant , Rs. 1,20,000/- towards compensation and Rs. 6,600/- as cost of litigation.

The complainant annexed money receipt dated 03.03.2013 of Rs. 10,000/-, money receipt  dated 11.03.2013 of Rs. 5,00,000/-, statement of account,  photocopy of cheque issued in favour of the complainant by the OP, returned memo,  other documents issued by the bank.

Notices were served but OPs  did not turn up. So the case  proceeded exparte vide  order dated 28.08.2018.

          The complainant prays for  treating the  petition of complaint  as affidavit in chief. Prayer was allowed.

Decision with reasons

          Complainant claimed to have  paid  Rs. 5,10,000/- to the OPs  for purchasing a flat  to be constructed by the OPs. It appears from money receipts dated 03.03.2013 and 11.03.2013 that the complainant  paid  Rs. 10,000/-  and Rs. 5,00,000/- respectively on the said dates to the OPs towards  consideration  of  a flat on the 3^rd floor,  South East side of  the building  to be constructed by them. It further appears from statement  of account that the  complainant paid said amount by three cheques amounting Rs. 1,25,000/- on 11.03.2013 and another  amount of Rs. 1,25,000/- on the same date vide cheque  being nos. 275856 and 275857 and paid Rs.2,50,000/-  on 13.03.2013 by cheque being no. 275854.  The complainant  claimed that the  OPs on receiving  several requests  from the end of the  complainant refunded Rs. 2,00,000/- to the  complainant. It appears from  photocopy of  cheque  issued on behalf of the  OPs that the cheques  were handed over to the complainant. It further appears from returned memo  issued from the end of the  State Bank of India that the  amount could not be credited  to the account of the complainant  for the reason of insufficient fund. It is, therefore,  evident that the complainant paid  Rs. 5,10,000/-  in respect of a flat to be constructed by the OPs. However, the flat has not been completed which was to have been  delivered  by  May, 2014 and the OPs  after expiry of the said period refunded Rs.2,00,000/- to the complainant by cheques which was  dishonoured  on deposition. The complainant paid  the entire amount for having his own accommodation but the  failure on the part of the  OPs to construct  the building  made  the complainant deprived  from having his own  accommodation and even after expiry of  agreed period of handing over the possession , OP neither  handed over the possession of the said  flat  nor did  refund the deposited amount , in  our view  such inaction on the part of the Ops  amounts  to deficiency  in service  and the complainant  is entitled to the reliefs. Furthermore the Ops were agreeable to refund the deposited amount which suggests that they were not in a position to construct the building. It appears  from affidavit dt. 24.07.2015 submitted in reference to P.S Case No. 324 of 2015 that the OP No. 1 namely Pradip Saha undertook to handover the flat in habitable condition to the Bhaskar Ganguly (Complainant herein) according to his choice within 60 days from that day subject to full payment of the total consideration price. The complainant prays for refund of deposited amount of  Rs. 5,10,000/- along with interest  @ 10% interest. In our view,  this prayer may be  allowed since the complainant  paid the amount by March, 2013 and instituted the case on 16.03.2017.  Regarding  prayer for  rent  we are of opinion that the rent  for the period from July, 2015 to September, 2018 if allowed  it will be  two fold benefits and we were not   inclined to allow  this prayer.  The complainant prayed  for compensation  to the tune  of  Rs. 1,20,000/- and cost of litigation  of Rs. 6600/-. In our view, if an amount of Rs. 50,000/- is allowed  towards the  compensation and Rs. 6600/- is allowed  towards  the litigation cost  justice would be  served.  In the result,  consumer complaint  succeed in part.

Hence,

                          Ordered

          That CC/153/2017  is allowed exparte against Opposite Parties  with costs. Opposite Parties  are directed to refund  Rs. 5,10,000/- along with interest @10% p.a. from the date of last payment i.e.  on 11.03.2013 till  realisation  within three months  from the date of this order.

          Opposite Parties  are further directed to pay Rs. 50,000/- towards  compensation  and Rs. 6,600/- towards litigation cost within abovementioned period.