PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of intending purchasers against the Developer/Builder on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.

          Succinctly put, Complainants’ case is that they had applied for a Type-‘A’ flat measuring about 1675 sq. ft. super built up area in the ‘Teen Kanya’ project at New Town, Kolkata and on 04.08.2008 an Allotment Letter was issued in favour of the complainants in respect of the flat being Apartment No.TKL/T-2/8A (Type-‘A’) of Labanya-Tower-2 at 8^th floor measuring an area of 1675 sq. ft. at ‘Teen Kanya’, at a  price of said apartment at Rs.46,48,125/- + Rs.2,50,000/- towards cost of one covered car parking space totalling Rs.48,98,125/-.  The complainants have already paid Rs.46,25,551.10P on diverse dates in favour of OP as part consideration amount towards the said total consideration amount.  As per terms of the agreement, the OP was under obligation to handover possession within 36 months from the date of sanction of plan or permission for construction by HIDCO.  The complainants have alleged that even after expiry of the stipulated period, the OP has failed and neglected to handover possession.  Finding no other alternatives, the complainants by a letter dated 02.04.2014 through their Advocated requested the OP to refund the amount paid by them which yielded no result.  Hence, the complaint with prayer for several reliefs, viz. – (a) an order directing the OP to deliver possession of the flat in question or refund the amount of Rs.46,25,551/- with 18% interest thereon; (b) compensation of Rs.5,00,000/- for harassment and mental agony etc.

          Opposite Party by filing a written version did not deny the material allegations made by the complainants.

          In support of their case, complainant no.2 Srinivash Singh has tendered evidence through affidavit.  The OP has neither filed questionnaire nor filed any affidavit in support of their case.

          The uncontroverted and unchallenged testimony of the complainants clearly depicts that they had applied for a flat to OP and being satisfied, the OP issued one Allotment Letter on 04.08.2008 by which one apartment being Apartment No.TKL/T-2/8A (Type-‘A’) of Labanya-Tower-2 at 8^th floor measuring an area of 1675 sq. ft. at ‘Teen Kanya’, at a price of said apartment at Rs.46,48,125/- + Rs.2,50,000/- towards cost of one covered car parking space totalling Rs.48,98,125/-.  Evidently, the complainants have already paid Rs.46,25,551/- out of total consideration amount of the flat i.e. Rs. 46,48,125/-.  The allotment letter is accompanied with terms and conditions of transactions.  Clause 11 of the Agreement provides that the OP Company shall give possession of the apartment to the allotees within 36 months from the date of sanctioned of plans or permission for construction by HIDCO subject, however, to payment by the allotees of all dues in respect of the allotted apartment.

          After lapse of three years, OP could not start the construction of the project.  In their written version, the OP could not assure when they will be able to handover the possession of the subject flat in favour of the complainants.  The complainants by a letter dated 28.05.2014 have prayed for refund of the amount paid by them along with interest thereon @ 18% p.a. w.e.f. 12.09.2008.  In this regard, it may be pertinent to record that by a letter dated 07.09.2011 (after expiry of committed date of possession), the OP has admitted that they could not start the construction of the project and the said letter also could not assure the complainants as to when they will be able to start construction and complete the said construction.

          On evaluation of materials on record, it transpires that the complainants being ‘consumer’ as defined in Section 2(1)(d) of the Act hired the services of OP on consideration  and OP has failed to fulfil their part of obligations as per agreement and thereby deficient in rendering services towards the complainants within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.  Therefore, the complainants are entitled to some reliefs.  In our view, direction upon the OP to refund the amount of Rs.46,25,551/- along with compensation in the form of interest @ 8% p.a. (as per terms contained in Clause 16 of the Agreement) will sub-serve the object of justice.  Under compelling circumstances, complainants had to file this complaint for which they are entitled to litigation cost which we quantify at Rs.10,000/-.

          With the above discussion, we dispose of the complaint with the following directions –

1. The Opposite Party is directed to refund Rs.46,25,551/- along with compensation in the form of simple interest @8% p.a. in favour of complainants from the date of each payments till its full realisation;
2. The Opposite Party is directed to pay Rs.10,000/- to the complainants as costs of litigation;
3. The above payments must be paid within 30 days from the date of communication of order.