This complaint petition is filed u/s 35 of the Consumer Protection Act’ 2019 at the instance of the Complainant against the Opposite parties for alleged deficiency of services on the part of the Opposite parties in a consumer dispute of housing construction.

The facts of the complaint case in a capsulated form is that OPs are the Directors of a Private Limited Company namely Dharitri Infraventure Pvt. Ltd. having registered office at Sector V, Salt Lake City, PS: Electronics Complex, Kolkata 700091. The Opposite party was scheduled to construct housing complex namely ‘Dharitri Universia’ comprising flat units, car parking space, commercial spaces etc. at Mouza BhagwanpurJL no 17 comprising RS Dag no. 2498 and 2499, PS: Kashipur, Bhagwanpur gram panchayat, Bhangar in the district of South 24 Parganas.

The complainants Sri Dulal Chandra Dey s/o late Sunil Kumar Dey and his daughter Oindrilla Dey both from Garia, Kolkata 700084 wanted to purchase a residential flat and so entered into a Memorandum of Understanding on 03/10/2017 with the OP company. It was agreed as per MOU that the complainant would purchase a 3 BHK flat having super built up area of 900 sq. ft. more or less. In that MOU it was agreed that the total consideration money of the said flat would be as Rs. 38.75,000/- (Rupees Thirty Eight Lac Seventy Five Thousand) only including 1 car parking space and amenity charges.

The complainant paid Rs.7,20,000/- (Rupees Seven Lac Twenty Thousand) only vide various instruments to the OP company as advance payment and earnest money to book the subject flat out of total 38,75,000 /-. An allotment letter dated 27.06.2017 was issued by the developer cum OP company in favour of the complainants. As per the said MoU dated 03.10.2017, it was agreed between the parties that the said flat would be completed and handed over by the OP within 48 months from the date of signing of that MoU i.e. by 03.10.2021.

Further, the case of the complainant is that they did not find any physical progress about development of the said project and so the complainants again visited the office of the OPs on several occasions and sent letter on 25.02.2020 seeking refund of the tendered amount that was paid by them as advance for purchasing the flat from the OP. On 12.04.2021 the OP company responded by an e- mail to the complainants stating that the said advance money would be refunded back to complainants for Rs. 6,76,562/- only in 11 / 12 instalments after deducting GST and Service tax. The complainants thereafter got back a refund of only Rs. 69,000/- in 5 instruments from time to time but the balance amount remained unpaid. Next, a cheque no. 534524 dated 21.08.2022 drawn on Punjab National Bank , Sreebhumi Branch was tendered by the OP company to the complainant but upon presentation of the said cheque it got dishonoured due to ‘01-insufficient fund’.

Complainant files exhibits such as MOU (Annx A), allotment letter (Annx B), all the money receipts in bunch for Rs 7,20,000/-(Annx C) and the letter from complainants for refund dated 25.02.2020 (Annx D) in support of their claims.

As the OP did not take any step and no progress or development was made in the said project construction in compliance of the said MoU and as the OP neither refunded balance amount to the complainant inspite of having letter issued to the complainants promising to refund, all such requests and persuasions of the complainant went in vein. Hence, the complainants approached this Commission with a prayer for a relief inter-alia to pass an order to give direction upon the OP to refund the balance principal amount for Rs.6,51,000/- plus 15% interest for delay alongwith a compensation of Rs. 2,00,000/-  for mental agony & harassment and a litigation cost of Rs. 50,000/-.

The submission made by the Ld. Advocate for the complainant were considered and the materials on record were scrutinised. On behalf of the complainant, the contents of the petition of complaint supported by affidavit and the documents annexed therewith were treated as evidence through affidavit. The OP neither filed written version nor availed the opportunity to participate in the adjudication process nor adduced evidence. Hence the case was heard ex-parte against the OP company.

On perusal of the petition of complaint and the evidence on record, it transpires that the OP was going to construct a housing complex known as ‘Dharitri Universia’ comprising flat units, car parking space, commercial spaces etc. at Mouza Bhagwanpur, JL no 17, RS Dag no. 2498 and 2499, PS: Kashipur, Bhagwanpur gram panchayat, Bhangar in the district of South 24 Parganas.

It also transpires from records and evidences on affidavits and annexures exhibited by complainant as per Sl (A) to (D) of the complaint petition that the complainant and the Opposite party entered into a Memorandum of Understanding on 03.10.2017 and by this agreement the complainant booked one 3 BHK flat having super built up area of 900 sq. ft. more or less and 1 car parking space. It also appears that at that time of the booking of the said flat the complainant paid Rs.7,20,000/- to the OP company as per receipts exhibited by the complainant.  It also appears that the OP did not take any step for the development of the said project and neither they took any step to refund the booking money to the complainant. It is not in dispute that the OP has received the said amount of Rs. 7,20,000/- and failed to construct the housing construction project, to develop the said building and to deliver the possession of the said 3 bhk flat and car parking to the complainants.

The facts and circumstances and materials on record, more particularly, relying upon the evidence on record, it is palpably clear that the OP could not keep their promise and as such, they are deficient in rendering services towards a consumer.

In view of the above, the complainants are entitled to get relief as prayed for.

In a similar complaint case in the matter of 2016 CPJ 328 (NC), the Hon’ble National Commission held that :-

“Para 9. As far as the allottees in tower E & F are concerned, they have already sought refund as an alternative relief, along with compensation under several heads. Therefore, we have no hesitation in holding that in the facts and circumstances of the case the allottees in both the complaints are entitled to refund of the money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them. They are also entitled to appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the opposite party to deliver possession of the flats booked by them. In this regard, it is to be kept in mind that a person books a residential flat for the purpose of having a roof over his head, and in the hope that on completion of the construction within the time promised by the builder he will be able to live in a house of his own. Therefore, he is bound to feel disappointed and frustrated when the builder does not deliver upon its promise for years together”.

In a complaint case no. CC/780/2019, the Hon’ble SCDRC, West Bengal which is similar in it’s contents and merit and the complaint case filed against the same OP company during near period on 27.09.2019, Rs. 4,30,000/- was paid by the complainant on 25.01.2016 as advance for booking for a 2 BHK flat (with part refund of 1,10,000/- on 12.07.2019) for a total consideration money of Rs.21,50,000/- and a Car parking for Rs. 3,50,000/- to which the bench of Hon’ble President and Member (Female) held in para 23, 24 & 25 of their Order dated 01.08.2022 that :

“That the complaint case No. CC 780 of 2019 be and the same is allowed ex parte against the Opposite parties. The Opposite parties are hereby directed to refund the amount of Rs.3,20,000/- (Rupees three lakh and twenty thousand) only to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the date of each payment till the date on which the entire amount along with compensation is paid, in the form of compensation. The Opposite parties shall pay Rs. 10,000/- (Rupees ten thousand) only as cost of litigation. The payment in terms of this order shall be made within three months from this day”

In another complaint case no. CC/327/2019 at Hon’ble SCDRC, West Bengal which is identical in it’s contents and merit and near period of flat booking against the same OP company during similar period on 06.05.2019, Rs.1,55,000/- was paid by the complainant on 22.05.2017 as advance for booking for a 3 BHK flat and one car parking for a total consideration money of Rs.15,50,000/- to which the bench of Hon’ble President of the State Commission and the Member (Female) held in their Order dated 24.03.2022 that :-

                        “That the Complaint case no. CC/327/2019 be and the same is allowed ex-  parte against the Opposite Party. The Opposite Party is hereby directed to refund the amount of Rs.1,55,000/-(Rupees one lakh fifty five thousand) to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the date of each payment till the date on which the entire amount along with compensation is paid in the form of compensation .

The Opposite party shall pay Rs.10,000/- (Rupees ten thousand) as cost of litigation.

The payment in terms of this order shall be made within three months from this day.

If the Opposite party fails to comply with the direction made above within the period mentioned above, then the complainant is at liberty to get the order implemented with due course of law”

Again, in 2016(3) CPR 279 (NC) Hon’ble National Commission held thus –

“Para 10. Since the opposite party has failed to offer possession of the flat agreed to be sold to the complainants by the date stipulated in the Buyers Agreement in this regard and 5/6 years have already expired from the said committed date for delivery of possession. The complainants cannot be compelled to wait any more for the builder to deliver and they are entitled to seek refund of the money paid by them along with appropriate compensation.”

In view of the above decisions of the Hon’ble National Commission, we hold that the complainants are entitled to refund of the money paid by them along with appropriate compensation for the financial loss and for mental agony and harassment suffered by him on account of the failure of the OPs to deliver possession of the flat booked by them. We hold that there is deficiency in service on the part of the Opposite parties in the matter of construction of flat and delivery of possession as per terms and conditions of the MOU. In the result, the Complaint case succeeds.

            Hence, it is Ordered :-

That the complaint case no. CC/204/2022 be and the same is allowed ex parte against the OP. The OPs are hereby directed to refund, jointly and severally, the amount of Rs.6.51,000 = (7,20,000 – 69,000) (i.e. Rupees Six Lac Fifty One Thousand) only to the complainant with a simple interest @ 9% per annum, with effect from the date of respective payments that the complainants made to OP company, till the date of final realisation of the entire amount.

The OPs are also jointly and severally liable and directed to pay a compensation of Rs. 50,000/- (Rupees Fifty Thousand) only to the complainant for deficiency in services, mental pain and agony suffered by the complainant.

The OPs are also jointly and severally directed to pay a litigation cost of Rs. 25,000/- (Rupees Twenty Five Thousand) only to the complainant.

All the above said payments in terms of this order will be made by the OPs to the complainants within two months from this day I/D a simple interest @ 12% per annum will get accrued till the date of final realisation.

If the Opposite party fails to comply with the above said direction within the period mentioned above, then the complainant is at liberty to put the entire order into execution as per due course of law.

Let a plain copy of this Order be provided to both the parties free of cost as per CPR.