Date of filing: 23/06/2022
Date of Judgment: 22/06/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Smt. Gita Devi Mishra and Sri Shyam Narayan Mishra under section 35 of the Consumer Protection Act, 2019, against opposite parties (referred as OPs hereinafter) namely (1) Avadh Merchants Pvt. Ltd. and (2) Skywood Developers Pvt. Ltd. represented by its Director Kalipada Saha and CEO Subhajit Saha, alleging deficiency in service on the part of OPs.
Case of the complainant in short is that opposite party (1) being the owner and OP 2 being the developer entered into a development agreement on 15/01/2013 to erect and construct residential building complex under the name and style “Skywood Greens” on the land described in the schedule of the said development agreement. A power of attorney was also executed and registered in favour of the OP 2 by the owner OP 1. Subsequently complainant being allured with the publications of banners and hoardings by OP 2, approached OP 2 to purchase a flat. So an agreement for sale was entered into between the complainant and the OP 2 dated 28/04/2017 whereby complainant agreed to purchase the flat described in the schedule ‘B’ of the said agreement at a consideration of Rs. 23,77,600/-. Complainant paid total sum of Rs. 9,93,487/- out of the said total consideration price of Rs. 23,77,600/-. As per the terms of the agreement, complainant was liable to deliver the possession by March, 2018. But the possession was not delivered and OP 2 by a letter informed the complainants that the housing projects have completed on 31/12/2019 and they are likely to hand over the possession within next couple of days. But the possession was not delivered. Complainant visited the said project site in the month of November, 2019 and found there was no progress as to the completion of the said project. So being compelled, they booked one another flat at Howrah in the name of their son. Thereafter they sent a legal notice to the OP 2 through their Ld. Advocate to refund the sum of Rs. 9,93,487/- paid by them. But the same was not paid. Thus the present complaint is filed praying for directing the OPs to refund the said earnest money of Rs. 9,93,487/- paid by the complainants together with interest @ 10% p.a., to refund Rs. 1,37,287/- towards the monthly rent paid by the complainants as he was compelled to reside in the police quarter on payment of monthly rent from April, 2018 as he had retired from his service as constable, to pay damages to the tune of Rs. 5,00,000/-, to pay compensation of Rs. 5,00,000/- towards mental agony and harassment and to pay litigation cost of Rs. 50,000/-.
On perusal of the record it appears that OP 1 did not turn up in spite of the service of notice. OP 2 being represented by its director even though had appeared through his Ld. Advocate Sri Debasish Roy but subsequently no step was taken and neither any written version was filed. So case was directed to be proceeded exparte against the opposite parties.
The only point requires determination is whether the complainants are entitled to the relief as prayed for?
DECISION WITH REASONS
In support of their claim, complainants have filed the agreement for sale entered into between the parties in the year 2017. No specific date and month of execution has been stated in the said agreement for sale. However from the said agreement it appears that OP 2 being the developer and constituted attorney of owner agreed to sell the flat as described in the schedule ‘B’ of the said agreement and as per the terms and conditions there in, possession of the flat was to be delivered by March, 2018. Memo of Consideration in the said agreement indicates that sum of Rs. 7,13,419/- was already paid by the complainants towards the consideration price. According to complainants they paid further sum of Rs. 35,000/-, Rs. 1,00,000/-, Rs. 45068/-, and further Rs. 1,00,000/- by four different cheques. So total sum paid by them was Rs. 9,93,487/-. But on a careful scrutiny of the pass book of the bank account of the complainants filed in this case, it appears that complainants paid Rs. 1,00,000/- on 21/04/2018 and Rs. 35,000/- on 03/08/2017 and further Rs. 4,000/- on 07/08/2017. So according to the said pass book complainants paid further sum of Rs. 1,39,000/- apart from Rs. 7,13,419/-. However it may be pertinent to point out that the complainants have also filed the reply dated 15.02.2020 sent by the OP 2 in response to the notice of the complainant wherein it has been stated that the said project work will be completed by 31/03/2020. In the said reply it has not been denied by the OP 2 that Rs. 9,93,487/- as claimed by the complainants was not paid by them. Another reply dated 05/12/2020 sent by the OP2, indicates that there was a settlement and he agreed to pay Rs. 9,48,419 to the complainants. So on consideration of those replies sent by the OP 2 in response to the notice of the complainants the payment of Rs. 9,93,487/- as claimed by the complainants remains more or less undisputed. According to complainants said sum has not been refunded by the OP 2, neither the flat as agreed was handed over. In such a situation complainants are entitled to the refund of sum of Rs. 9,93,487/- especially when before this commission there is absolutely no contrary material to counter the claim of the complainants. Complainants are also entitled to the compensation in the form of interest on the said sum as admittedly there has been delay in completion of the project. However, so far as the claim of the complainants to refund the amount of rent paid by them for retaining the police quarter, they have not filed any document in support of such claim.
Hence
ORDERED
CC/360/2022 is allowed exparte against OP2 and dismissed exparte against OP1. OP 2 is directed to refund Rs. 9,93,487/- to the complainants along with interest @ 10% p.a. on the said sum from the date of 1st payment by the complainants i.e. 19/11/2016 to till this date, within two months from date of communication of this order. OP 2 is further directed to pay litigation cost of Rs. 10,000/- to the complainants within the aforesaid period of two months. In default of payment, the entire sum shall carry interest @ 10% p.a. till realisation.
