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M/s. Jewar Construction Rep. by Debasis Barman v/s Payel Goenka Dave & Another

    First Appeal No. A/598/2019

    Decided On, 24 March 2021

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT & THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER

    For the Appellant: Abhisek Panda, A. Datta, Advocates. For the Respondents: Niladri Banerjee, Advocate.



Judgment Text

Ishan Chandra Das, President

This Appeal has been directed against the Judgment and Order dated 28.12.2018 passed by erstwhile ld. D.C.D.R.F., Kolkata Unit II in C.C.RBT No. 245 of 2018 where the ld. Forum concerned while disposing of the Complaint case allowed the same exparte against the OP with cost , directed the O.P., M/s. Jewar Construction represented by Debasish Barman to refund a sum of Rs.2,15,000/- (Rupees two lakh fifteen thousand) with interest @ 10% per annum from 25.3.2016 till the date of actual payment, litigation cost of Rs.10,000/- (Rupees ten thousand) to be paid within 30 days from the date of the Order, Rs.50,000/- (Rupees fifty thousand) for compensation for adopting unfair trade practice, misleading and false representations to the complainants, 50% of which shall be paid to the complainant and rest shall be deposited before the concerned Forum concerned within the stipulated period (30 days) with default clause.

Being aggrieved and dis-satisfied by such Judgement and order, the OP preferred this Appeal.

Briefly stated, the case of the complainant/respondent (hereinafter referred to as the complainant) was that the OP being the proprietor of the construction company was engaged in building , selling and re-selling of flats around Rishra, Hooghly and the complainant being allured by the hoarding of the project expressed their desire to purchase a 600 sq.ft. flat @ Rs.1500/- (Rupees fifteen hundred) per sq.ft. on the top floor of the said project, being the subject matter of the Complaint case. The complainants requested the OP to furnish a photo copy of all the papers of the said land but the OP instead of supplying relevant documents, convinced the complainants to pay a sum of Rs.2,15,000/- (Rupees two lakh fifteen thousand) . The OP /Appellant informed the complainants that the agreement would be prepared in the month of September, 2015 and the complainants agreed to pay the booking amount on the date of signing the agreement for sale. On 12th August, 2015 the complainants had to execute a special Power of Attorney in favour of the brother of the complainant no.2 namely Mr. Namit Dave, to execute all agreements regarding the said and monitored the progress of the same. Sometimes, on 24.9.2015 the OP had called upon the complainants to execute the said agreement for sale and accordingly on 24.9.2015 the complainants paid a visit to the office of the OP and upon payment of cheque of Rs.2,15,000/- (Rupees two lakh fifteen thousand) , the OP executed an agreement for sale in the name of said Namit Dave, the constituted Attorney of the complainant. At the time of executing such agreement for sale with the OP, the complainants were given to understand that the project site was free from all encumbrances, and the project would be completed within six months from the time of booking of the flat. After executing of such agreement and payment of the booking charges, the constituted Attorney of the complainants paid visit to the site of the project on various occasions and came to know that there were certain disputes regarding the said land and the project had been stalled for an uncertain period. The constituted Attorney of the complainants confronted the OP and asked for official papers regarding the title of the land on which the project was undergoing but the OP evaded the query about the papers and falsely re-assured the constituted Attorney . Thereafter, the said constituted Attorney of the complainant returned to the project site and enquired from the locality about the title of the land and was surprised to know that the title of the said land was under dispute. On hearing such dispute in the early part of the 2016, the complainants came to know about the problem cropped up at the project site with regard to their proposed flat. Then the complainants met the OP/Appellant to discuss the disputes and problems and asked for the papers regarding the title of the land but the OP re-assured to resolve the dispute regarding title within a couple of days and the construction work would be started. In the month of March, 2016, after waiting and on being falsely re-assured by the OP the complainants paid a visit to the office of the OP with a view to cancel their booking of the flat at the said project site and to claim the refund of the entire amount they paid for such booking but the OP avoided, put forward various excuse and with a view to killing time asked the complainants to wait for another six months but ultimately the complainants was convinced on 22.2.2017 that the project would be a flop project and asked the OP to refund the booking amount , amounting to Rs.2,15,000/- (Rupees two lakh fifteen thusand) with interest @ 10% per annum, compensation of a sum of Rs.1 lakh (Rupees one lakh) for mental agony and harassment and to pay Rs.20,000/- (Rupees twenty thousand) towards litigation cost.

In the impugned judgment ld. D.C.D.R.F. clearly expressed the back ground of the complaint case, what prompted the Forum concerned to hear out the case exparte against the Appellant herein. It was brought to our notice that the original Complaint case being C.C./122/2017 was transferred to D.C.D.R.F. Kolkata Unit II for trial as per order dated 28.3.2018, passed in T.A. 11 of 2017 before this Commission and that Transfer Application was allowed on contest. Subsequently, on transfer of the case to the D.C.D.R.F. Kolkata Unit II the OP/Appellant herein did not appear to contest the same and left the matter to be heard exparte against him. Ld. D.C.D.R.F. in the impugned judgment categorically discussed all the points and disposed of the Complaint case exparte against the OP and we are not in a position to take a different view over the matter . However, taking into consideration the facts and circumstances of the case we dispose of the Appeal by allowing it in part on contest and modifying the direction given in the judgment impugned for finality

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of litigation. We ask the Appellant herein to pay the respondents a sum of Rs.2,15,000/- (Rupees two lakh fifteen thousand ) with interest @ 8% per annum from 25.3.2016 till the date of actual payment, compensation of Rs.30,000/- (Rupees thirty thousand) and litigation cost of Rs.10,000/- (Rupees ten thousand) .The remaining part of the direction given in the judgement are set aside. The Appellant is directed to pay the decretal amount to the respondents within 30 days from the date of this order, failing which the respondents shall be at liberty to recover the amount through an Execution Process. The Appeal is thus allowed in part and disposed of.
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