Sri Ashoke Kumar Pal, President
The crux of instant complaint case in short is that the complainants being the father and son with the intention to purchase a self-contained flat measuring about 1040 Sq. ft. along a covered car parking space more fully described in the schedule of the petition of complaint as well as the Agreement for Sale dated 08.07.2016, the complainants applied to the O.P. and the O.P. confirmed booking through allotment letter dated 25.04.2016. The consideration amount was settled at Rs. 32,66,000/- (Rupees thirty two lakh sixty six thousand) only (Rs. 30,16,000/- for the flat + Rs. 2,50,000/-) for one covered car parking space and the other charges and expenses are settled as follows :
- Infrastructure and development charges and electric connection as well as generator charges of 1040 Sq.ft. (Super built up area) @ Rs. 150/- per Sq.ft.;
- Maintenance deposit of 1040 Sq.ft. (Super built up area) @ Rs. 30/- per Sq.ft.;
- Club membership fee @Rs. 1,50,000/- (plus service charge).
The complainants altogether paid Rs. 7,28,691/- (Rupees seven lakh twenty eight thousand six hundred and ninety one) only by cheques on different dates and the O.P. acknowledged the receipts of the same (Annexure B to E). Thereafter, on 08.07.2016 an agreement for sale has been made by and between the parties (Annexure F). But the O.P. did not put his signature in the said agreement. The complainants by 3 e-mails (Annexure G) requested the O.P. to deliver the possession of the scheduled flat with one covered car parking space within 36 months and latest within a grace period of 6 months e.g. within January, 2020 as per terms and conditions of the agreement for sale. But ultimately the OP failed and neglected to hand over the delivery of possession of the scheduled flat along with covered car parking space. As the construction work of the project was discontinued, the complainants by letter dated 21.12.2021 asked the O.P. to refund the money received by them so far along with interest (Annexure H & I). Thereafter, three reminders were given to the O.P. on different dates (Annexure J, K & L). But the O.P. despite receipt of the letters as aforesaid did not respond the same. As such, the complainants lodged a complaint before the Assistant Director, Consumer Affairs & Fair Business Practices, South 24 Pgs, Regional Office at Baruipur. But ultimately no fruitful result has been achieved and hence, this complaint case has been filed on the reliefs sought for in the petition of complaint.
The O.P. despite receipt of the notice did not come forward to contest this case by filing W/V. As such, by Order No. 5 dated 11.07.2023 the instant complaint case was declared to be proceeded ex-parte against the O.P.
Points for Consideration :-
- Are the complainants consumers?
- Is the O.P. guilty of deficiency in service and unfair trade practice?
- Are the complainants entitled to get reliefs as prayed for?
Decision with Reasons :-
Point No.1:-
On perusal of the case record along with copies of documents available on record, it appears that the complainants were willing to purchase a self-contained flat measuring about 1040 Sq. ft. along with a covered car parking space more fully described in the schedule of the petition of complaint as well as the agreement for sale dated 08.07.2016 and the O.P. agreed to sell the same to the complainants. The complainants altogether paid Rs. 7,28,691/- (Rupees seven lakh twenty eight thousand six hundred and ninety one) only by installments on different dates out of the total consideration amount of Rs. 32,66,000/- (Rupees thirty two lakh sixty six thousand) only including other charges and expenses. Therefore, the complainants are consumers as defined U/S 2(7) of the Consumer Protection Act, 2019.
As such, the 1st point is decided in favour of the complainants and against the O.P.
Point No: 2:-
The complainants booked a self-contained flat measuring about 1040 Sq.ft. along a covered car parking space more fully described in the schedule of the petition of complaint as well as the agreement for sale dated 08.07.2016. The complainants altogether made payment of Rs.7,28,691/- (Rupees seven lakh twenty eight thousand six hundred and ninety one) only on different dates and the O.P. acknowledged the receipt of the same (Annexure B to E). The complainants observed that the construction of the proposed project has not been started and there was no sign of completion of the construction work by 2020 and to handover the said flat along with covered car parking space by the O.P. to the complainants. The O.P. neither handed over the scheduled flat with one covered car parking space nor refunded back the amount of Rs. 7,28,691/- (Rupees seven lakh twenty eight thousand six hundred and ninety one) only which has been received from the complainants on different dates (Annexure B to E). Therefore, it is clear from the averments of the complainants that the O.P. is guilty of deficiency in service and unfair trade practice.
As such, Point No.2 is also decided in favour of the complainants and against the O.P.
Point No. 3:-
The complainants intended to purchase a self contained flat along with covered car parking space from the O.P. and made payment of Rs.7,28,691/- (Rupees seven lakh twenty eight thousand six hundred and ninety one) only. It was agreed upon by and between the parties that the scheduled flat along with car parking space will be handed over within 36 months and latest by January, 2020. But ultimately the O.P. failed to deliver the possession of the scheduled flat with covered car parking space within the stipulated time and violated the terms and conditions of the agreement. The O.P. also failed to execute and register a proper Deed of Conveyance in favour of the complainants in respect of the scheduled flat along with covered car parking space. As such, there is no hesitation to hold that the complainants are entitled to get the reliefs as prayed for as the O.P. neither delivered possession of the scheduled flat with covered car parking space nor executed and registered a proper Deed of Conveyance in respect of the scheduled flat along with covered car parking space in favour of the complainants receiving the balance consideration amount. The complainants failed to get service from the O.P. and were also harassed by the O.P. by various ways. Therefore, the complainants are entitled to get relief as prayed for.
Thus, the Point No. 3 is also decided in favour of the complainants and against the O.P.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the instant complaint case be and the same is hereby allowed ex-parte against the O.P. with cost of Rs. 25,000/- (Rupees twenty five thousand) only.
The O.P. is liable and is directed to deliver the scheduled flat along with covered car parking space more fully described in the petition of complaint as well as the agreement for sale and to register a proper Deed of Conveyance in respect of the same within 45 days from the date of passing this order after receiving the balance consideration amount from the complainants at the time of registration of the Deed of Conveyance.
Alternatively, the O.P. is liable and is directed to refund the entire amount of Rs. 7,28,691/- (Rupees seven lakh twenty eight thousand six hundred and ninety one) only along with Simple Interest in the form of compensation @12% p.a. w.e.f. 31.03.2016 (date of payment of the booking amount) till the date of final realization within 45 days from the date of passing this order.
The O.P. is liable and is directed to pay the litigation cost of Rs. 25,000/- (Rupees twenty five thousand) to the complainants within 45 days from the date of passing this order.
The complainants are at liberty to put the order into execution after the expiry of 45 days in case the orders are not complied with by the O.P. within 45 days from the date of passing this order.
Ld. Member Smt. Shampa Ghosh joined today on 12.12.2023 and did not take part in the hearing of argument of this case and as such, she did not sign the Judgement.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.in.
Dictated and corrected by me.
President
