FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the Complainant, is that, the Complainant entered into an Agreement For sale with the OPs 1 to 4 on 30.11.2018 for purchasing a flat measuring 300sq.ft. more or less consisting one bed room , one kitchen, with water facility on the 5th Floor of the propose new building at premises no. B/15/2/H/3, Ahiripukur 2nd Lane, P.S. – Karaya, Kolkata – 700019, K.M.C. Ward no. - 69 by paying an amount of Rs.2,00,000/- only as advance booking out of total consideration amount of Rs.8,00,000/-. But the OPs 1 to 4 denied to deliver the possession of the said flat and refuse to refund the advanced deposited amount to the Complainant. Thereafter the Complainant sent legal notice to the OPs 1 to 4 through his Ld. Advocate on 13.12.2022 and OPs 5 to 15 on 03.12.2022 to refund the deposited amount with interest but the OPs remained unturned. Having no other alternative the Complainant compelled to file this case before this Commission.
Upon service of notice OPs have failed to file WV within stipulated period and the case do proceed ex parte against them vide order dated 01/03/2023.
Complainant has tendered evidence supported by affidavit. We have gone thoroughly evidence adduced by the Complainant including documents on record and gave careful consideration to the arguments advanced by the Ld. Lawyers for the Complainant.
It is admitted fact that the complainant has executed an Agreement for Sale on 30/11/2018for purchasing one residential apartment at Premises No. B/15/2/H/3 by paying Rs. 2,00,000/-out of total consideration amount of Rs. 8,00,000/-, vide Money Receipt to one Sayed Sovan Ali, Building Contractor.It has been submitted by the Ld. Advocate for the Complainant that after execution of Agreement for Sale said Building Contractor was died and OPs 1 and 2 as legal heir (Son & Wife) of the deceased Building Contractor continued the construction work and they engaged OPs 3 and 4 as developer and the said construction work has been completed. It is argued by the Ld. Advocate for the Complainants that as per Agreement for Sale dated 30.11.2018 the possession of the said flat was to be handed over to the Complainant within 16 Months from the date of Execution. Photocopy of the Agreement for Sale dated 30/11/2018 support this contention. Photocopies of the Legal Notices dated 03/12/2022 and 13.12.2022 go to show that the complainant made the abovementioned demand to the OPs through his Ld. Advocate. It is noted that after receiving the legal notices OPs did not bother to reply the same by revealing any clear and transparent information about the booked flat. We think it is deficiency in service on the part of the OPs. The primary responsibility of a builder is to construct the flat and deliver the possession of the said flat to the purchaser within stipulated period as per Agreement for Sale for which the developer has received the money from the purchaser. If the builder does not deliver upon his contractual obligations, this would constitute deficiency on the part of the developer in rendering service to the consumer.
We have travelled through the documents on record and found that Complainants booked a flat in the said residential project of the OPs against Rs.8,00,00/-. But despite receiving of Rs.2,00,000/- as advance booking the OPs have neither handed over the possession of the subject flat nor refunded the deposited amount to the Complainant.
It is true that that no WV has been filed by the OPs though several opportunities were given to them for filing WV but they have failed to file the same as such the allegation stated in the complaint petition remains unchallenged. Regarding this matter, we can safely state that on failure to file WV by the OPs tantamount to admission of the allegations stated in the complaint petition.
In view of the above facts it is observed by us that, the incident is very unfortunate that OPs 1 to 4 have miserably failed to perform their responsibilities. It is not our expectation that the complainant by any means suffer from loss of money and time for the utter negligence on the part of the OPs. In this regard we are opined that, the complainant cannot made to wait indefinitely for possession of the flat, when there is absolutely no response from the OPs.
OPs 1 to 4 were under obligation to handover the subject in favour of the Complainant within the stipulated period and failure to handover the subject flat within the stipulated period tantamounts to deficiency in services on the part of the OPs 1 to 4.Under the above circumstances, unfair trade practice and the gross negligence and deficiency in service on the part of the OPs 1 to 4 is proved and the complainant is entitled to get relief/ reliefs.
Ld. Advocate for the complainant alleged that OPs 5 to 15(Land owners) are engaged in joint –venture business with the OPs 1 to 4. But no documentary evidence is attached with the Complaint Petition in this regard.
In the result, the Consumer Complaint is allowed on ex parte against the OPs 1 to 4 with a direction to them to refund jointly and severally the deposited amount i.e. Rs.2,00,000/-with simple interest @ 8%p.a. from the date of payment is made together with litigation cost of Rs.10,000/ and Rs.20,000/- for harassment and mental agony to the Complainants.
The Consumer Complaint is dismissed on ex parte against the OPs 5 to 15 without any cost.
This amount to be paid by the OPs 1 to 4 jointly and severally to the Complainants within 45 days from the date of this order, failing which, the deposited amount shall attract interest @12% p.a. for the same period.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
