FINAL ORDER/JUDGEMENT

SMT.   SUKLA SENGUPTA,   PRESIDENT  

Both the complainants have filed a petition of complaint u/s 35 of CP Act, 2019 against the OP members.

It is stated by the complainants that both the complainants is residing under the jurisdiction of this commission and the OP members are not residing under the jurisdiction of this commission. Hence, the complainants filed a petition U/s 34 (2) (b)  by seeking permission to file the case before this commission which was registered and treated as MA-172/2022  and the said MA was considered and allowed by this commission vide order No.  03 dated 12.04.2022.

The fact of the case in brief is that the complainants intend to purchase the flat in question as described in the schedule B of the petition of complaint at a consideration of Rs. 28,00,000/- in total payable by three instalments. Accordingly, the complainants have entered into agreement for sale with the OP members on 11.07.2019 which was notarised on 18.12.2019. It is further stated by the complainants that they have paid Rs.  4,20,000/- out of Rs.  28,00,000/- on different occasion by cheques and in cash. The OPs gave assurance that they will provide all the relevant documents within 15 days from the date of agreement for sale but they did not provide any single piece of paper to the complainants. Thereafter the complainants fade up for all the incidents like pandemic situation and lame excuses of the OPs for non completion of the building and the flat in question and they decided to cancel the agreement for sale and demanded the earnest money of Rs.  4,20,000/- from the OP members as paid by them. The OP members assured to the complainant that they will return the earnest money to the complainants within 4 to 5 months along with interest @ 5 % per month again in the month of February,  2012  from the OP members and OP members again assured them that they will return the same. But they did not keep their assurance. As a result, on  05.03.2021 the complainants sent a demand letter  to the OP members in respect of the earnest money but the OP members did not reply the same. The complainants again sent a demand letter dated  06.02.2021 regarding  the refund of earnest money and the OP members then asking for time to  return  the earnest amount but ultimately, they did not return the same which cause harassment, mental pain and agony to the complainants.

Having no other alternative, the complainants have filed the petition of complaint before the commission with a prayer to give direction upon the parties to refund the earnest money of Rs.  4,20,000/- along with interest @ 18 % P.A till the disposal of the cases and also prayed for direction upon the OPs for giving compensation to the complainants of Rs.  3,00,000/- only for mental pain and agony and monetary loss and also prayed for litigation cost.

The OP members even after the receipt of the notice did not appear before the commission or contest the case by filing WV. As a result, the case do run ex parte against the OP members by this commission vide order No,.  5 dated  29.07.2022.

In view of above fact and circumstances, it has to be considered by this commission:-

1. Is the complainant a consumer?

2. Is there any deficiency and negligence on the OP members?

3. Is the complainant entitled to get relief/reliefs as prayed for?

Decision with Reasons.

On a close scrutiny of evidence materials on record and considering the fact and circumstances of the case it is found that the complainants intend to purchase a flat.  i.e B schedule property at a consideration of Rs. 28,00,000/- in total  from the OP members/the developer of the A schedule property and they entered into agreement for sale  dated 11.07.2019  on payment of Rs. 4,20,000/- in different instalments by cheque and in cash out of Rs.  28,00,000/-. But as per agreement for sale,  the OP members failed to complete the structure on the schedule property and also failed to handover the flat in question to the complainants i.e B schedule property within the stipulated period. Hence, the complainants decided to cancel the agreement for sale and they demanded the refund of earnest money paid by them of Rs. 4,20,000/- on different occasion by cheque and in cash.

From the materials on records (document)  and the unchallenged testimony of the complainants this commission did not find any reason to disbelieve the ex parte evidence adduced by the complainant.

From the evidence of the complainant, it is found that they demanded earnest money on several occasions and orally in writing and ultimately on 23.06.2021 they sent the demand notice to the OP members but the OP parties failed to return the earnest money.  So, from the evidence of the complainandt and the fact and circumstance of the case  as well as the materials on record, it is well established that the complainants have paid the money of Rs. 4,20,000/- as earnest money to the OP members as consideration out of Rs.  28,00,000/-  in total for purchasing suit flat ( schedule B property) and the OP members violated the terms and condition of the agreement for sale dated  11.07.2019 and they harassed the complainant by giving false assurance that they will refund earnest money of Rs.  4,20,000/- paid by the complainant towards part consideration in respect of the flat in question out of Rs.  28,00,000/-. They did not pay any heed to the request of the complainants. They harassed the complainants and neglected them which caused deficiency in service on their part.

So, the complainants could be able to prove their case in ex parte that they are consumers under the OP member and the OP members being service provider neglected them, harassed them and caused mental pain and agony without giving service which can safely be termed as deficiency in service on the part of the OP parties.

Hence, in view of the discussion made above, it is held by the commission that on the basis of the unchallenged testimony of the complainants, fact and circumstances and material on record the complainants could be able to prove their case and entitled to get the relief as prayed for against the OP members.

The case is properly stamped.  

The points of considerations are considered and decided favourably to the complainants.

Hence,

Ordered

That the case be and the same is allowed ex parte against the OP members

The complainants do get ex parte decree in this case against the OP members.

The OP members are directed to pay the earnest money of Rs. 4,20,000/- to the complainant either jointly or severally.

The OP members are further directed to pay compensation to the complainants of Rs.  1,00,000/- along with interest @ 9 % p.a.  from the date of filing this case till realisation  either jointly or severally and litigation cost of Rs. 5,000/- either jointly or severally.

The OP members are further directed to comply the decree within 45 days from the date of this order i.d. the complainants are entitled to further interest @ 6 % p.a. of the entire decreetal amount from the date of default till realisation of the entire amount.

If the OP members failed to comply the decree with stipulated period as mentioned above the complainant would be at liberty to execute the decree as per law.

Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act, 2019. The Judgement be uploaded forthwith on the website of the commission for perusal of the.