w w w . L a w y e r S e r v i c e s . i n



Abhishek Agarwal v/s Ideal Real Estates Pvt. Ltd. & Others

    First Appeal No. A/764 of 2015

    Decided On, 21 January 2016

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. MRIDULA ROY
    By, MEMBER

    For the Appellant: In Person. For the Respondent: --------



Judgment Text

The instant appeal is directed against the order being No. 2 dated 29.06.2015 passed by Ld. District Consumer Disputes Redressal Forum, Kolkata Unit – I (hereinafter referred to as District Forum) rejecting the Petition of complaint in limini holding that the complaint u/s 12 of the Act is purely civil in nature as the prayer hs been made for refund of money only.

Being aggrieved and dissatisfied with the said order the Complainant has preferred the instant appeal.

The case of the Complainant, in brief, is that he , through his father as authorised signatory, jointly with his brother namely, Avinash Agarwal made an application in October, 2014 for allotment of a residential apartment being No.11D in Block ‘CAMELLIA’ along with covered car parking space to be constructed in the proposed complex of the Opposite parties under name and style ‘Ideal Greens’. The said application was accompanied with a cheque being No.000096 dated 14.10.2014 drawn on Kolkata New Alipore Branch of HDFC Bank Limited in favour of ‘Ideal Real Estate Pvt. Ltd.’ for Rs.3,11,124/- issued by father of the Complainant Sri Rajesh Agarwal towards application money of the said property to be purchased and the said cheque was duly received by the Opposite parties. The Complainant’s father stated that it was decided by the parties that after receiving the application money the O.Ps was to provide the draft of Standard Agreement for Sale but, the same has not been provided yet. The Complainant has stated that on pursuation on several occasions the O.P’s issued an allotment letter dated 8.10.2014 wherein it was mentioned as Rs.3,09,270/- instead of Rs. 3,11,124/-. The complainant receiving the said letter of allotment on 06.11.2014 informed the O.Ps over e mail dated 7.11.2014 informing the O.P’s that no copy of Standard Agreement for Sale had been provided to him and requested the O.P’s to refund the said booking amount with interest. The O.Ps, as the complainant stated, in spite of receiving the said e mail sent no reply to it but, instead, sent a new Allotment letter which was also dated 8.11.2014 along with a demand letter dt 22.12.2014 for Rs. 17,47,990/- only and in the Demand Letter, however, the amount of application money was correctly mentioned. The complainant specifically stated that seeing the unprofessional attitude of the O.P’s decided to withdraw his application and to get refund of the application money with interest and therefore, made several communication in writing to the O.Ps but to no avail. Hence, the complainant has filed the complaint before the Ld. District Forum praying for direction upon the O.Ps to refund the application money of Rs.3,11,124/- along with interest @ 18% p.a. till final payment/disposal of the matter whichever is later, to pay Rs. 10,00,000/- only as compensation for deficiency in service, unfair trade practices, harassment and mental agony, to pay Rs. 95,000/- to the complainant for cost of litigation.

In course of hearing of the Appeal, the authorised representative of the Appellant has submitted inter alia, that he paid Rs. 3,11,124/- to the O.Ps towards application money for a flat and covered parking space but, subsequently, seeing the unprofessional attitude of the Respondents decided not to purchase the same and requested the O.Ps to refund the deposited amount which he is very much entitled to get back. In support of his contention the authorised representative for the Appellant has cited the decisions of the Hon’ble National Commission in Revision Petition being No. 4729 of 2012 decided on 10.9.2013 in connection with 1) (Samarth Association Engineers & Others –vs – Ramesh RamchandraLokhande ) 2)Revision Petition No. 4288 of 2012 decided on 16.08.2013 (Rajbeer Singh -vs- the Manager the E marr MGF Land Limited and another)

Ld. Advocate for the Respondent has submitted that the Ld. District Forum rightly rejected the Petition of complaint since the case is not maintainable under the Consumer Protect Act, and moreover, the Ld. District Forum does not have the pecuniary jurisdiction to entertain the case. In support of his contention Ld. Advocate for the Respondent has cited the decision of the Hon’ble National Commission in Revision Petitions being No. 2679 of 2011 decided on 12.03.2012 (P.S. SRIJAN ENCLAVE 7 ORS –VS-SANJEEV BHARGAV) and Revision Petition being No. 2680 of 2011 (P.S ENCLAVE 7 ORS –VS- SANJAY DEWAN ).

Having heard the submissions made by the parties and on perusal of the materials on record, it appears that by filing up an undated Application Form the authorised signatory of Abhishek Agarwal and Avinash Agarwal applied to the IDEAL REAL ESTATE PVT. LTD. for allotment of the residential apartment No.11D in Block Camellia having superbuilt up area of 1815 sq. ft. and 02 covered car parking spaces. It also appears that an Allotment Letter dated 8.10.2014 in response to the addressee’s application dated 28.10.2014 was sent to Mr. Abhishek Agarwal allotting him a flat being No.11D (3 BHK) in CAMELLIA at IDEAL GARDEN GREENS, 591A, Motilal Gupta Road, P.S. Haridevpur, Kolkata, West Bengal, India PIN-700008 for agreed consideration of Rs.1,02,95,559/- . It also appears that in the said allotment Letter the authorised signatory of the Ideal Real Estates Pvt. Ltd. ascertained that the allottee has the right to opt out of booking by communication in writing within 15 days from the date of booking and in such event, after deducting 1% of the Agreed Consideration as forfeiture charges the authority would refund the balance amount of booking money.

It also appears from photocopy of the statement of account issued by the HDFC Bank in respect of Bank Account of Mr. Rajesh Agarwal that an amount of Rs.3,11,124.00/- was disbursed in favour of Ideal Real Estate. It appears from the decisions citedby the authorised Representative of the Appellant that the Hon’ble National Commission directed the builders to refund the amount paid by the potential purchasers towards Application /Earnest money as they opted for not to avail the housing construction service from the builders. But, in the both cases question of going beyond the pecuniary jurisdiction of the adjudicating Redressal Agency was not considered at all. In the instant case, however, the adjudicating Forum does not have the pecunicary jurisdiction to entertain the complaint and, therefore, passing any order beyond the jurisdiction of the adjudicating authority will be a a nullity.

Ther

Please Login To View The Full Judgment!

efore, when it appears that as per provision of section 11(1) of the C.P. Act, the value of the flat and car parking space which the Complainant opted to avail is much higher than the pecuniary jurisdiction of District Forum and even as per provision of section 17(1)(a)(i) of the C.P. Act, beyond the pecuniary jurisdiction of State Commissions, the Ld. District Forum has rightly refused to entertain the complain t. Therefore, on this score alone we are inclined to uphold the order of rejection of the petition of complaint by the Ld. District Forum. In the result, Appeal does not succeed. Hence, ORDERED, that the instant appeal is dismissed on contest but without any order as to cost.
O R