Order-10.
Date-17/05/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant intended to purchase one flat to be sold by the OP and accordingly, complainant entered into an agreement for sale on 15.11.2013 wherein it was specifically mentioned the date of delivery of possession would be delivered after 36 months as such the complainants paid to the OP and/or parties a total sum of Rs.2,40,644/- inthe year 2013 for purchasing a flat of the building at Niketan Project as described in Schedule ‘C’ of the agreement supplied to the complainant and the flat for which the complainant paid the above stated sum for purchasing is at 2ndFloor, Flat No.A7/2/D area 663 Sq. Ft. a 2 BHK flat at Vibgyor Housing Ltd. at Baruipur, South 24 Pgs. Complainant after a few months visited the project site to see the positon and progress of construction but nothing is yet been started not even foundation pillar has been fixed or raised in the land and there is no sign of any construction or developments and in the above act of the OP complainant was astonished and considering his future complainant went to the OP and expressed that it is impossible for them to wait for long period, so prayed for cancellation of the agreement with a prayer to return the advance money for purchase of the said flat but in spite of cancellation of the booking agreement dated 15.11.2013 OP did not refund the advance money including the interest etc. but they did not pay any heed and kept silent.
So, in the above circumstances, for negligent and deficient manner of service and also for adopting deceptive manner of payment complainant has filed this complaint for redressal.
But OPs have not appeared in this case even after receipt of notice. In the above situation the case is heard contested.
Decision with reasons
After hearing of Ld. Lawyer of the complainant and also considering the arguments including the agreement to sale dated 15.11.2013 and further considering the cancellation of the said agreement by the complainant we are convinced that OP no doubt received Rs.2,40,644/- as advance but OP did not refund but we have gathered that up to this date the sum has not been paid.
On overall evaluation of the materials on record and the documents it is clear that the agreement has been cancelled but the payment was made by the complainant by 15.11.2013 as advance and this amount is Rs.2,40,644/-. Thereafter, it was observed by the complainant at the development site that no construction has been started and that is the fact which has not been challenged by the OP’s. So, it is proved that OP is not willing to refund the sum but the question is when he shall have to refund it. But it is now May, 2016 that means already two years expired but there is no construction and in the meantime by spending this amount OP has made many types of profits whereas complainant suffered from financial loss and also failed to enjoy the flat and even after cancellation he has failed to enjoy the monthly interest if it would be fixed for 2 or 3 years. No doubt at present banking interest of fixed deposit above 08.25 percent, invariably OP shall have to pay that interest over the said amount with effect from November, 2013 till its full payment. Whatever it may be the conduct of the OP as promoter or developer or as company is no doubt deceitful in manner and from this complaint it is proved that many customers have been deceived by the OP and they are also loitering for getting money and in the meantime so many cases are being filed before this Forum against VIBGYOR for refund of money so, we are convinced to hold that this OP has been/had been running a deceitful manner of trade for deceiving the customer in such a manner and in fact OP has been receiving the money from those people who are in need of flat and then OP are placing them on the street and also enjoying the profit of the said capital and such sort of practice on the part of the OP is unfair trade practice what is proved beyond any manner of doubt. Truth is that the directors or the actual owner of the business is in the jail custody. Truth is that these OPs have misappropriated huge amount by such means. So, the allegation as made by the complainant against the OP is proved beyond any manner of doubt. Invariably complainant is entitled to get refund of Rs.2,40,644/- with interest at the rate of8.25 percent p.a. over the sum from November, 2013 and till its full payment by the OP and further entitled to get litigation cost because he has filed this complaint for redressal which has not been redressed by the OP though OP was bound to comply the terms and condition of the agreement to sale dated 15.11.2013.
In the result, the case succeeds.
Hence, it is
ORDERED
That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OPs.
OPs are hereby directed to refund the entire advance received amount of Rs.2,40,644/- and also interest at the rate of8.25 percent over the said amount with effect from November, 2013 till its full payment to the complainant but the entire amount including litigation cost shall be paid to the complainant within one month from the date of this order.
In case for non-compliance of the Forum’s order penal damages at the rate ofRs.200/- per day shall be assessed till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.
Even if it is found that OPs are reluctant to comply the order in that case penal action u/s.27 of the C.P. Act, shall be started against them for which further penalty and fine shall be imposed.
