Date of Filing : 19/01/2023

Date of Judgement : 24/09/2024

Sri Manish Deb, Hon’ble Member

The Brief Fact for the adjudication of the present  complaint are  that in the month of July 2021 the complainant  came to know from the advertisement of the opposite parties through internet that they are developing some plot of land in the Rajarhat Area, whose registered office at New Town, Action Area-1, Block-AE/41, Bikram Cooperative, second floor, Flat No.20. Accordingly the complainant  downloaded the copies of the advertisement and the details of the land and also location of the land.

That complainant firstly contact with the opposite parties over telephone and discussed categorically  regarding the land in question and after discussion the opposite parties invited the complainant to inspect the land also came to the office of the opposite parties as early as possible as the plots of land are limited.

That after inspection of the said project the complainant  being convinced with the terms and conditions for giving possession of land and also for payment. Being agreed to book the plot of land measuring more or less 4 cottach 5 Chattacks in the said project named Panchavati Garden and the total consideration amount of the plot (Plot No.D-222 D-23) was  fixed on Rs.48,00,000/-) only.

That accordingly the complainant showing her eagerness to purchase the particular plot of land as inspected on 16.08.2021 and on the next day i.e. 17.08.2021 the petitioner sent the booking amount Rs.50,000/- for the said plot through NEFT and the said amount was duly accepted by the opposite party.

That it was assured by the opposite parties after receiving the booking amount of the said plot land in question the agreement for sale will be executed in the name of the complainant  and the original receipt of booking amount will be provided to   and it was also assured by the opposite parties that the delivery of possession of the land will be given within 18 months from the execution of agreement for sale subject to payment of the total consideration amount by the complainant.

That elapsing of 15 months from the date of booking of the land, the opposite parties did not execute the agreement for sale and also not provide the original copy of the booking amount to the petitioner.

That in respect of the execution of agreement for sale and also obtaining the original receipt of the booking amount the petitioner called the opposite parties over telephone with the request to execute the agreement for sale and original copy of the receipt of amount but the opposite parties did not take any initiative to provide the same.

That having no alternative the petitioner visited the site of the plot to inspect and to assess the progress of the development work for habitable condition  of the plot but also found no development work have been done at all.

That after examining all activities of the Ops the petitioner/complainant requested them through email in different times with the request to refund the booking amount Rs.50,000/- immediately as they have failed to comply with the verbal assurance and also cheated to the bonafide customer. But till date of this complainant the opposite parties did not give any response in regard to refund of money of the petitioner.

That even day after day the complainant  requested the opposite parties either over telephone and through email for refund of the money but till the date of filing of the complaint petition, the opposite parties remain silent on this issue as a result the petitioner being suffered a financial loss  mental agony and harassment by the opposite parties.

That the petitioner also sent a notice to the opposite parties through her advocate on 12.11.2022 with the request to refund the booking amount and the said letter was duly received by the opposite parties but no response has been received by the complainant as on date of filing of case.

Finding no other alternative, the complainant has initiated this complaint before this Ld Commission.

POINTS FOR DISCUSSION

Whether complainant fall in the category of the “Consumer” under Consumer Protection Act 2019.

Whether the present complaint is within limitation under Consumer Protection Act, 2019.

Whether the commission has the jurisdiction to decide the present complaint

Whether the opposite party in deficient in providing its services to the complainant.

Is the case is maintainable or not

Is the complainant is entitled to get relief as prayed for.

OBSERVATION

The complainant falls in the category of the “Consumer” under Consumer Protection Act 2019.

It is filled within two years from the date on which the cause of action has arisen.

The commission has territorial jurisdiction to decide the present complaint as the property in question is situated at Panchavati Garden (Plot No.D-222, D-23), New Town, Kolkata under Hatisala Mouza.

The main question for consideration before us is whether the opposite party is deficient by not delivering flat in question within stipulated period as per sale agreement.

And our view is the opposite parties are liable in deficiency in service and unfair trade practice as alleged.

Our view regarding entitlement of getting relief sought by the complainant is also affirmative.

 The complainant booked a plot of land for residential purpose in the month of August 2021 in the Project named Panchavati Garden being Plot No.D-222, D-23 at consideration of Rs.48,00,000/-. The complainant paid Rs.50,000/-  as advance amount.

It was also expressed by the OPs that the delivery of the possession of the plot would be completed within 18 months from execution agreement for sale.

It is to be mentioned that the agreement for sale of the plot was not executed on the part of the OPs after lapse of 15 months from the booking of the plot.

The complainant several times requested the opposite parties but OPs did not take any initiative to execute sale agreement and delivery of the original money receipt for booking of plot.

The opposite parties did not take any initiative to provide the same, but E- mail Acknowledgement    of Rs. 50,000/- is there.

The complainant visited the site of the plot to assess the progress of the development work, but found no development work for habitable  condition, no development work have been  progressed there  at all.

That after observing all activities of the opposite parties, the complainant requested OPs in different times, to refund the booking amount of Rs.50,000/- but OPs did not give any response in this regard.

Our observation, a failure of developer to comply with the contractual obligation to provide the  plot to purchaser within a contractual  stipulated period  amounts to deficiency, there is a fault , shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed by in pursuance of contract, where ever  it is verbal or written  in relation to service.

It reflects that the opposite party was bound to enter written agreement and hand over the possession of the plot after receiving the Booking money against the plot. However the opposites parties miserably failed to offer the possession of the plot to the complainant.

Relying on the settled law , we hold that the opposite party is deficient in providing its service to the complainant ,  as the opposite  party had given false assurance to the complainant with respect to the time for execution of  sale agreement  and hand over possession of the plot and kept the hard-earned money of the complainant .   

The opposite parties are not entered into the case, after  service of notice upon opposite parties are satisfied but no written version was filed in this case on behalf of the opposite parties.

The complainant filed Affidavit-in-Chief, Documents and also Brief note of Argument, also submitted verbally before this commission  

The complainant files this complaint alleging deficiency in service on the part of OPS  and praying for the relief .

Keeping in view the facts of the present case and the provisions of  extensive law.

Hence it is

                   ORDERED

That in the instant Case No.38 of 2023 is allowed against Opposite Parties  with cost.

I) The Opposite Parties  are directed  to pay Rs.50,000/- to the petitioner along with @9% interest p.a. from the date of booking of the plot until actual payment of the amount.

II) The Opposite Parties are also directed to pay Rs.50,000/- as compensation for harassment, mental pain and agony and also pay Rs.10,000/- as litigation cost.

All the above mentioned payment should be made within 60 days from the date of this order, failing which the complainant shall be at liberty to proceed in accordance with law.

Dictated and corrected by                 

          Member