Date of Filing : 13/09/2021
Date of Judgement : 29/09/2022
Mr. Dhiraj Kumar Dey, Hon’ble Member
The instant case arises when the Complainant, Smt. Paromita Banerjee, filed a complaint with annexure U/S 35, read with Sec. 38 & 39 of the Consumer Protection Act, 2019, herein after called the said Act, against the Opposite Parties namely, 1) M/s. Aspirana Infraventure Pvt. Ltd. and 2) M/s. Dharitri Infraventure Pvt. Ltd., for deficiency in service on the part of the O Ps seeking reliefs.
The brief statement of the complaint is that the Complainant, while seeking for a new residential flat near Rajarhat-New Town area, came across the advertisement of a new project named and styled as Aspirana Malabar Residency of O P No. – 1 and contacted with them. Being satisfied by the description of the project complainant applied for a flat measuring about 783 sft super built up area and marked as Flat – 3D, 3rd Floor, Tower – 7 at the Aspirana Malabar Residency at Mouza – Jirangachi uder Kashipur Police Station, South 24 Paraganas, for a total consideration of Rs. 17,61,750/-. She paid Rs. 20,001/- through a cheque along with the application on 21.08.2016. Later she paid Rs. 1,67,367 on 01.09.2016 as booking money along with a duly filled up application titled as General Particulars. The complainant repeatedly requested the O P – 1 company to enter into the Agreement for Sale in respect of the subject flat but each time they have not given any agreement copy. Waiting for a year and getting no information about the progress of the project complainant decided to change her decision of purchasing a smaller flat of 375 sft for a consideration of Rs. 8,43,750/- which was informed to the O P – 1 company through her letter dated 18.10.2017. This time also the O P – 1 company could not give any Agreement for Sale, rather on 02.11.2017 O P – 1 company sent via mail a draft copy of Memorandum of Understanding (MOU) which was not executed afterwards. On 10.01.2018 the O P – 1 company informed the complainant through a letter stating that the project will start shortly. In this letter they marked her booked flat as 3BHK which she booked earlier but has changed afterwards. But the complainant when visited the proposed project site in March 2018 she found that the project was not started till then. Being aggrieved for such inaction from the part of O P – 1 company the complainant gave a letter on 24.3.2018 for cancellation of the booking of the subject flat as per the condition of the General Particulars and requested them to refund the paid amount of Rs. 1,87,368/-. After more than five months O P – 1 company informed that it was not possible to refund the booking amount to the complainant. Instead of the refund O P – 1 company assured the complainant that they would arrange a flat for the complainant at the same terms and conditions as per the General Particulars of dated 01.09.2016 under Dharitri Infraventure Pvt Ltd (Royal Enclave project) referred to as the O P -2 herein above. The O P – 1 company assured the complainant that the O P – 2 company is their sister concern and after giving written application to the O P -2 for change of site location of the flat by the complainant the said amount of Rs. 1,87,368/- will be transferred to the account of O P – 2 company as the booking money in favour of the complainant for purchasing a flat. Having no other alternative the complainant gave the application for change of site location from Aspirana Malabar Residency to the proposed Royal Enclave on 18.08.2018 to book a residential flat measuring about 450 sft super build up area being Flat No. – D, 3rd Floor, Block – 17, Tower – 43 in Phase – I to be constructed by the O P – 2 company. On 24.01.2019 the O P – 2 company issued a letter of allotment in favour of the complainant for the Flat – D stated above and they gave also a brochure. The O P – 2 company took Rs. 800/- from the complainant on 24.01.2019 as Notary charge and on 08.02.2019 the O P -2 company, in collusion with O P -1, executed notarized Agreement for Sale with the complainant for the said Flat being Flat – D, of the proposed Royal Enclave situated at Mouza Hudrait, New Town Action Area – 3, Sapoorji Paloonji Bus Stop, New Town, West Bengal – 700 135, measuring about 450 sft super build up area for a consideration of Rs. 9,11,250/- including all charges. In this Agreement for Sale it is mentioned in the Receipt Schedule that a sum of Rs. 1,87,368/- has been received by the O P -2 company from the complainant as the earnest/advance money under this agreement. Thereafter O P – 2 demanded more money unnecessarily from the complainant which created doubt in the mind of the complainant and when she visited the office of the O P -2 company and enquired about her proposed flat she found that there is no existence of the subject flat in their site location, even the O P – 2 company told her that the Agreement dated 08.02.2019 is null and void and has no meaning. Finding no other alternative complainant filed an application for refund of money to the O P – 2. She informed the whole fact to the O P -1. Complainant sent registered letters to both the O Ps – 1 & 2 demanding refund of Rs. 1,87,368/-, which amount she deposited to O P -1, but both the O Ps have not given any response to the complainant. Finding no other way she lodged her complaint before this Commission alleging deficiency in rendering proper service to the complainant from the O Ps and praying for refund of Rs. 1,88,168/- paid by her to the O Ps along with 18% interest thereon, a compensation of Rs. 2,00,000/-, Rs. 50,000/- as litigation cost and other relief(s) as this Commission thinks fit.
After receiving this complaint on 13.09.2021 this Commission served notice to the O Ps and in spite of repeated opportunities given no step was taken by the O Ps. Thus the case was directed to be proceeded ex parte. Later the complainant submitted Affidavit-In-Chief and Brief Notes of Argument. Ultimately Argument was heard and this Commission has decided to deliver Final Order/Judgement on the Complaint. It is to be noted that if the Opposite Parties appeared before this Commission and contested the case then it would be better to decide by this Commission that whether there is indeed any deficiency in service on the part of the O Ps or not.
Gone through the statement of the complaint and annexure, Affidavit-In-Chief and Brief Notes of Argument and the only points required determination are whether the complainant is a consumer to the O Ps and whether she is entitled to the reliefs as prayed for. Let us take these two points together to reach in a decision and to avoid repetition.
Decision with reasons
It is an admitted fact that the Complainant, being an intending purchaser of a flat, paid an amount to the O P – 1 company and signed an application which is termed as General Particulars which contains certain terms and conditions related to the construction and purchase of the flat. So there is a Consumer –Service Provider relation between the complainant and the O P – 1 as defined in the Consumer Protection Act, 1986/2019. Finding delay in construction of the project she changed her decision for purchasing a flat of smaller area. It is also a fact that the O P – 1 failed to provide the desired flat, even they insisted the complainant to change her decision of purchasing the flat to a new project called Royal Enclave to be constructed by their sister concern which is the O P – 2 company stated herein above. O P – 1 also assured the complainant that the terms and conditions as stated in the General Particulars, issued by O P – 1, would not be changed for the new flat. Accordingly, finding no other way, she applied for her desired flat from the O P – 2 company and the O P – 2 company executed and notarised an Agreement for Sale in this effect and thereby assured the complainant to provide her desired flat. So, it is clear that both the O Ps have given written assurance to provide some service in for form of constructing of a flat which ought to be handed over to the complainant. Moreover, the complainant has waited for nearly four years and found that there is no progress in construction of the project sites, first at the Aspirana Malabar Residency and later at the Royal Enclave. Consequently she applied to both the O Ps for refund of the amount she has already paid for purchasing her desired flat. The Hon’ble National Consumer Disputes Redressal Commission and the Hon’ble Supreme Court have observed in different cases that a consumer is not bound to wait indefinitely to get possession of his or her flat. Here the complainant paid the booking money on 01.09.2016 to the O P-1 who assured to hand over possession within 40 months from the date of signing the General Particulars which they could not accomplish. Moreover they compelled the complainant to sign the Agreement for Sale with the O P – 2 on 24.01.2019 – a long period of almost two and a half years after deposition of booking money. Even after signing this Agreement for Sale O P – 2 tried to extort money from the complainant though no progress in development in the project is found. Even the O P – 2 company informed the complainant, when she insisted to visit the construction site, that the particular flat which she intended to purchase has no existence. As a consequence the complainant felt the compulsion for demand of refund, fearing that the O Ps could not provide her the subject flat. This Commission thinks the demand of refund made by the complainant is justified as both the Opposite Parties failed to comply with their responsibility for providing the desired service. Consequently this Commission justifies the prayer of refund of the booking amount along with an interest to the tune of 9% from the date of the respective payments as a compensation for harassment and mental agony caused by the O Ps and also a further sum of Rs.10,000/- towards the litigation cost.
Hence
ORDERED
CC/436/2021 is allowed ex-parte. The Opposite parties are jointly and severely directed to pay the Complainant Rs.1,87,368/- along with 9% interest from the date of respective payments within 60 days from the date of this order. They are also directed to pay jointly Rs. 10,000/- to the Complainant as litigation cost within this stipulated date.
