State Consumer Disputes Redressal Commission
Sri Sujit Kumar Ghosh vs M/S. R.N.B. Industries Ltd. on 26 February, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/240/2015 1. Sri Sujit Kumar Ghosh S/o Lt Sukumar Ghosh, 1/C,Mohan Lal Street, P.O - Shyambazar, P.S - Ultadanga, Kolkata - 700 004, Dist - South 24 Pgs. ...........Complainant(s) Versus 1. M/s. R.N.B. Industries Ltd. D.P Block, Plot No. - 5, 5th Floor, Sector - V, Salt Lake City, Kolkata - 700 091. 2. M/s Rita Enterprise 95,Goswami Para Road, Post & P.S - Bally, Dist - Howrah, Pin -711 201. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Priyabrata Basu , Advocate For the Opp. Party: Dated : 26 Feb 2018 Final Order / Judgement Date of Filing - 03.07.2015 Date of hearing - 07.02.2018 The instant complaint under Section 17(wrongly mentioned under Section 12) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of an intending purchaser against the developer / builder on the allegation of deficiency in services on the part of the builder in a dispute of housing construction.
In a nutshell, complainant case is that on 23.08.2014 he entered into an Agreement with the opposite parties to purchase of a composite unit of a flat measuring about 762 sq. ft. super built up area in a unit being studio unit lying and situated at Mouza - Bhatenda, P.S - Rajarhat, Dist - North 24 Pgs within the local limits of Bishnupur 1No. Gram Panchayat at a total consideration of Rs. 22,00,000/-. The Complainant has paid total sum of Rs. 4,40,000/-. However, the O.Ps have failed to construct the building and abandoned the project. The Complainant requested the O.Ps to refund the earnest money of Rs. 4,40,000/- and in this regard even the letter issued by the complainants dated 27.03.2015 evoked no response. Hence, the complainant has approach this Commission with prayer for several reliefs, Viz. - a) for refund of Rs. 4,40,000/- with interest @ 12% p.a. b) compensation of Rs. 1,00,000/-, c) cost of proceeding etc. The O.P. No. 1 did not contest.
The O.P. No. 2 by filing a Written Version has stated that due to financial hardship they could not start the construction of the project and approach O.P. No. 1 for development of the said property. The O.P. No. 2 has stated that he never received any earnest money or booking money or consideration money from any of the prospective purchasers including the complainant. Therefore, the complaint should be dismissed against him.
Both the complainant and O.P. No. 2 have tendered evidence on affidavit. They have also given reply against the questionnaire set forth by their adversaries. Besides the same, both the parties have relied upon some documents including the Agreement for Sale dated 23.08.2014.
Admittedly, the complainant applied before the O.Ps to purchase a composite unit of a flat at 'Kings Hut Phase - II' lying and situated at Mouza - Bhatenda, P.S - Rajarhat, Dist - North 24 Pgs within the local limits of Bishnupur 1No. Gram Panchayat and by paying Rs. 25,000/- as application money on 21.08.2014. Ultimately, an Agreement for Sale was executed on 23.08.2014 whereby the complainant agreed to purchase a composite unit in the said project measuring about 762 sq. ft. super built up area in a unit being studio unit lying and situated at Mouza - Bhatenda, P.S - Rajarhat, Dist - North 24 Pgs within the local limits of Bishnupur 1No. Gram Panchayat at a total consideration of Rs. 22,00,000/-. At the time of execution of Agreement for Sale the complainant paid to the O.Ps a sum of Rs. 4,15,000/-. Therefore, it is quite evident that the complainant has paid a total sum of Rs. 4,40,000/- to the O.Ps.
In their Written Version, O.P. No. 2 has admitted that due to financial crunch they could not start the construction for which they approach O.P. No. 1 to complete the said construction. Ultimately, O.P. No. 1 did not raise any construction. In that perspective, on 27.03.2015 the Complainant wrote a letter to the Director of O.P. No. 1 company asking them to refund the amount of Rs. 4,40,000/- paid by him as part consideration amount towards the total consideration amount of Rs. 22,00,000/-. Needless to say, the parties are bound by the terms of the agreement. Both the parties have signed the agreement with open eyes evaluating its pros and cons and therefore, nothing can be added or detracted from the terms and conditions of the contract. Therefore, the agreement between the parties towers above the rest. In AIR 1996 SC 2508 (Bharti Knitting Co. - Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.) the Hon'ble Supreme Court has observed thus -
"In an appropriate case where there is acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court establish under the CPC or appropriate State Law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract".
The Agreement for Sale clearly indicates that O.P. Nos. 1 & 2 put their signatures in the agreement as vendor and developer respectively. In fact, in each and every page of the agreement, the signatures of the complainant and O.P. No. 1 and OP No.2 appears. The O.Ps promised to hand over the flat on the basis of payment schedule as mentioned in Schedule 'E' to the Agreement for Sale. However, when O.P. No. 2 themselves have admitted that they could not start the construction work on account of financial hardship and further O.P. No. 1 has not come to refute the contention of the complainant, there is hardly any reason to disbelieve the evidence adduced by the complainant. In other words, the statement of complainant remain unimpeached. In his reply, O.P. No. 2 has admitted that Mr. Udayan Roy Chowdhury as Authorised Signatory of RNB Industries Ltd. being the vendor and Falguni Das as Proprietor of Ria Enterprise being the developer put their signatures.
Therefore, both the O.Ps are equally liable to refund the amount of Rs. 4,40,000/- along with interest thereon and compensation for the harassment and mental agony suffered by the complainant and O.P. No. 2 cannot absolve their liability by taking a plea that they handed over the construction to O.P. No. 1 for their financial hardship.
Considering the facts and circumstances, it appears to me that an order directing the O.Ps to refund the amount of Rs. 4,40,000/- along with interest thereon @ 9% p.a. from the date of payments till its realisation will meet the ends of justice. The unethical act of the O.Ps has caused tremendous mental agony and harassment to the complainant for a prolonged period of about 4 years and as such the complainant is entitled to compensation which I assess at Rs. 40,000/-. Under compelling circumstances, the complainant has to come before this forum and as such complainant is entitled to litigation cost which I quantify at Rs. 10,000/-.
In view of the discussion above, the complaint is allowed on contest against O.P. No. 2 and ex - parte against O.P. No. 1 with the following directions -
The O.Ps are jointly and severally directed to refund Rs. 4,40,000/- together with interest thereon @ 9% p.a. in favour of complainant within 60 days from date from the date of payments till its realisation, The O.Ps are also directed to pay compensation of Rs. 40,000/-.
The O.Ps are further directed to pay litigation costs of Rs. 10,000/-.
It is made clear that the amount of compensation and litigation costs amounting to Rs. 50,000/- must be paid within 30 days from date otherwise the said amount shall carry interest @ 8% p.a. from date till its recovery.
The Registrar of the Commission is directed to send a copy of the order to parties to the case at once for information and compliance.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER