Date of Filing: 23/12/2020
Date of Judgment: 03/12/2024
Sri Manish Deb, Hon’ble Member
That the complainants for their own residential accommodation have been jointly applied for a flat within the category of UMIG having seen of an advertisement in a newspaper published by the Bengal Shelter Housing Development Limited (A joint sector company with West Bengal Housing Board) on 14/01/2010 by filing an application at SOHINI-II (UMIG), Block-2, “NEEL DIGANTA” Barasat, 24 -Parganas (North) West Bengal. That the time of submission of the said application form the complainants have paid the sum of Rs.50,000/- only towards the application money by a demand draft bearing No.682196 dated 12/01/2010 in favour of the opposite party .
The OP by their letter dated 05/04/2010 intimated to the complainant No.1 that the lottery for provisional allotment of flats of SOHINI I & II of the NEEL DIGANTA Housing Project will be held on 17/04/2010.
That in the event of the said lottery the names of the complainants were selected and thereby on the basis of the said selection, the opposite party concern have allotted one flat being apartment No. ND/S-II/2/ID (typed) of SOHINI II (UMIG), Block-2 at 1st floor, measuring an area 820 sq.ft. (approx.) at NEEL DIGANTA Housing Project, Barasat at 24-Parganas (N) and thereby the opposite party herein intimated the same to the complainants by an ALLOTMENT LETTER dated 24/08/2010 . in the said allotment letter it was mentioned that the cost of the said flat was Rs.10,49,600/- only and the cost of one parking space is Rs.1,00,000/- only in total Rs.11,49,600/- in the said allotment letter it has also mentioned that there is instalment payment plan for the said total amount of Rs.11,49,600/- only.
That the opposite party along with the said allotment letter dated 24/08/2010 sent some other papers stating the terms and conditions of the development project SOHINI-II (UMIG) Block-2, being the part of the allotment letter dated 24/08/2010.
That the complainant in terms of the payment schedule mentioned in the said allotment letter dated 24/08/2010 have paid the sum of Rs.3,12,400/- only to the OP by a Demand Draft bearing No.151215 dated 07/10/2010 drawn on Indian Overseas Bank.
That the opposite party further demanded the sum of Rs.6757/- only from the complainant as by way of service tax on the amount of Rs.2,62,400/- only by issuing a demand notice dated 23/02/2011.
That the complainant in pursuance of the said demand notice dated 23/02/2011 have paid the sum of Rs.6757/- only as tax to the opposite party against money receipt bearing No.141571 dated 11/03/2011.
That in the manner aforesaid the complaints have paid to the opposite party the sum of Rs.3,69,157/- only in total i.e. Rs.50,000/- on 24/08/2010, with the application, Rs.3,12,400/- on 25/09/2010 towards 1st instalment and Rs.6,757/- only as Tax on 11/03/2010.
That the opposite party after receipt last payment of Rs.6,757/- only from the complainants has made no communication and/or asked for payment for further instalment from the complainants in respect of the said flat and parking space in terms of the said allotment letter.
But the opposite party concern by their letter dated 24/03/2012 intimated to the complainants that their office have shifted from BA0-2 Sector-1 , Salt Lake City, Kolkata-700 064, to CB-63. Sector –I, Salt Lake City, P.S. Bidhan Nagar, Kolkata – 700 064.
That it has specifically mentioned in the terms and conditions of the said allotment letter, that the possession of the said flat and parking space shall be given to the allottee i.e. the complainants herein within 48 months from date of allotment. The allotment letter was issued to the complainants on 24/08/2010 and as such the delivery of the said flat and parking space was due on or within 23/08/2014 which is within the period of 48 months but the opposite parties herein neither constructed the building at the said project area, thus no allotment of the said flat and parking space was given to the complainants till the date filing of the complaint petition nor the opposite party made the contact with the complainants either by demanding the payments by instalment in terms of the allotment letter or did not intimate the complainants for the reason of delay for construction of the building at the said project site or the tentative date for delivery of possession of the flat and parking space to the complainants.
That the complainants on several time went to the office of the opposite party for making payment of further instalment in terms of the allotment letter and as to know the progress of the said proposed Housing Project but person concern of the opposite party did not accept the payment of further instalment and was unable to give satisfactory reply to the complainants rather the persons of the opposite party concern herein gave negative reply to the complainants with regard to the prospect and progress of the said propose Housing Project
That the complainants considering the negative answer of the person concern of the opposite party with regard to the progress and prospect of the propose housing project have decided to take return of the entire money of Rs.3,69,157/- only together with interest there on and from the date of the receipt of the each payment by the OP up to the date of realization of the full amount from the opposite party and with such intention the complainants have served one letter to the opposite party on 16/01/2017 and the opposite party concern herein have received the said letter by putting their seal and signature with date.
That the OP after receipt of the said letter dated 16/01/2017 from the complainants have intimated to the complainant by their letter dated 17/01/2017 by stating that they will make refund advance amount after arranging the fund within the next 12 months.
The OP further mentioned in their said letter that if the complainants were interested to transfer their booking from NEEL DIGANTA to their another project SISIR KUNJA the same will be given to the complainants in discount price.
That the complainants have not consented with the alternative proposal of the OP for shifting their flat & car parking from the project NEEL DIGANTA to SISIR KUNJA and still they are willing to take refund of money from the OP.
That the OP concern after 17/01/2017, neither did any communication with the complainants nor the OP refunded the said amount of Rs.3,69,157/- with interest to the complainants till date of filing of the case.
That the complainants applied for the said flat on 14/01/2010 and car parking space but till the date of filing of this complaint petition the OP neither constructed the said flat and car parking space and to deliver possession of the said flat and car parking space within time , nor refunded the earnest money as demanded by the complainant within time, the OP is liable to compensate the complainants by paying the amount to the complainants which is equivalent to the present market price of the said flat measuring 820 sq.ft. and one car parking space of the said locality.
That the opposite party being the developer of the proposed housing project and have accepted the considerable amount of Rs.3,69,157/- from the complainants through a allotment letter in respect of the one flat and one car parking space as mentioned in the schedule of the complaint petition, who is the service provider to the complainants and as such complainants are entitled to get protection under Consumer Protection Act.
POINTS FOR DECISION are
- Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act, 2019.
- Whether the complainant is within limitation under C.P. Act, 2019.
- Whether the commission has the jurisdiction to decide the present complainant.
- Is the case is maintainable or not.
- Is the complainant is entitled to get relief as prayed for.
OBSERVATION
The complainant is fall in the category of the “consumer” under C.P. Act, 2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The main question for consideration before us is whether the opposite parties are deficient by non Execution and registration of the deed of conveyance of the flat and car parking space and deliver of the possession of the same alternatively non refunding of advance money with interest .
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged by the complainant.
And we considered that entitlement of getting relief sought by the complainant is also affirmative.
DISCUSSIONS AND FINDINGS
The OP has contested the case by filing written version, and adduced Examination in chief by affidavit, whereas in reply the opposite party Bengal Shelter Housing Development Limited (A joint sector company with West Bengal Housing Board) denied all allegation and contented that there is no deficiency in service on their/its part since the complainant did not come with clean hand , misrepresented the material facts where the OP has denied all allegations of the complainant paragraph wise and which are matter of record are admitted by the op, maximum words and sentence are used for it’s self estimation and self propaganda , the op has admitted that the complainant has booked the flat being apartment No. ND/S-II/2/ID (typed) of SOHINI II (UMIG), Block-2 at 1st floor, measuring an area 820 sq.ft. (approx.) and one parking space at NEEL DIGANTA Housing Project, Barasat at 24 -Parganas(N), application No. 0073 and said allotment.
The OP has categorically admitted the allegation of the complainant in his evidence, Being Para No.18 of affidavit. It is further submitted by the opposite party that opposite parties was prevented from performing or discharging it obligation, because of the circumstances beyond it’s control.
It is also fact that the opposite party have intimated (on 17.01.2017) to the complainants that they will make refund of the advance money after arranging the fund within 12 months , or the opposite party has placed an alternative option upon complainant to choose another project of the opposite party “SISIR KUNJA” in lieu of flat at NEEL DIGANTA with discount price in a deferent place far away from the NEEL DIGANTA, Barasat , North 24 Parganas.
They also admitted that the project NEEL DIGANTA, Barasat, North 24 Parganas was not ready for possession and registration of any unit or Flat, although they have taken advance consideration money from the complainant.
From the above discussion, it is clearly proved that the opposite party has committed grave deficiency of service and serious unfair trade practice and caused enormous mental pain and agony to the complainant.
Our opinion is that the opposite party never complied with the mandatory requirement despite receipt of notice issued by the complainant and opposite party deliberately failed and neglected to provide proper service towards complainants.
The opposite party stated that due to unfortunate circumstances construction of the project could not be completed , according to them the delay was on account of , local syndicate problem , inability to install electric sub Station, permanent interruption in supply of materials or utilities serving to the project ( NEEL DIGANTA) in connection with the work, non availability of workmen as per requirement etc, all of which according to them constituted due to force majeure.
The complainants adduced evidence together with copy of documents which includes allotment letter and money receipt.
We have applied our mind and meticulously gone through the materials on record. In the written version submitted by Opposite Party, we do not find any reasonable ground and proof in support of OP’s contention that the project was delayed due to unfortunate circumstances. Moreover there was no denial on the part of the OP with respect to receipt of the payment made by the complainant in terms of the allotment letter dated 24/08/2010.
Further OP by way of making submission that they will provide alternative flat to another project to the complainant, made it crystal clear that the project was not ready for delivery and there was an established fact of deficiency in service by way of making breach of contract as per terms the agreement or allotment letter 24.08.2010.
Above all the opposite party in its written version as well as in its reply never explained why the complainant shall not be a consumer and how they are not deficient on their in respect of giving proper service after taking advance amount or allotment money from complainant for sale of flat and car parking space.
By all means we are of the opinion that non delivery of the possession of flat and Car parking space within 23/08/2014 i.e within 48 month from the date of allotment is a clear cut proof of deficiency in service on the part of the Opposite Party.
That the opposite party is the guilty of unfair trade practice and also of deficiency in service as well for not non delivery of possession of the schedule property in favour of the complainants within the stipulated period of 48 months despite receipt of payment of a considerable amount of Rs.3,69,157/- from the complainants an secondly by not refunding the said money with interest to the complainants within the period mentioned in the letter dated 17/01/2017 and finally by withholding the said money illegally in their wrongful custody till date with the intent to deceive and defraud the complainants.
Thus, the case of the complainant stands successfully established and thereby the complainant is found eligible to get the relief.
Hence it is
ORDERED
That CC No.355/2020 is allowed on contest with cost
- Opposite Party is directed to refund the amount of Rs.3,69,157/- along with interest @12% p.a. for the period from the date of first payment made by the complainants i.e. 12/01/2010 till the date of actual payment.
- Opposite Party is further directed to pay Rs.1,00,000/- as compensation causing mental agony, harassment and for other damages to the complainants.
- OP is also directed to pay Rs.10,000/- towards the cost of litigation to the complainants.
All the above payments should be made within 45 days from the date of this order.
In the event of non compliance by the OPs, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Dictated and corrected by
Member
