Date – 17.11.2021
SRI SWADES RANJAN RAY
President
That after receiving notice Opposite Party No.-1 to Opposite Party No.-3 were appeared before this Commission through their Ld. Advocate and prayed for time for filing Written Version. Thereafter, Opposite Party No.-1 to Opposite Party No.-3 remained absent without any step. Hence, this complaint case proceeded ex parte against Opposite Party No.-1 to Opposite Party No.-3.
After receiving notice Opposite Party No.-5 and Opposite Party No.-6 were remained absent. Hence, this complaint case proceeded ex parte against Opposite Party No.-5, to Opposite Party No.-7.
Thus, this complaint case proceeded ex parte against all the Opposite Parties (O.P.s)).
Fact of this case in short, is that, the Opposite Party No.-1 to Opposite Party No.-5 are the absolutely joint owners of the land and property measuring about 74 cottahs 11 chittacks 30 sq. ft. lying and situated at R.S. Dag No. 4285, 4286, 4287 and 4290. R.S. Khatian Nos. 807, 252, 2524, corresponding to L.R. Dag Nos. 4285, 4286,4287,4288, 4290, under L.R. Khatian Nos. 3311/8, 1956/2, 1416/6, 804/1, 6702, 6703, 8760, Mouza-Gopalpur, J.L. No. 2, Police Station- Airport within the limits of Rajarhat - Gopalpur Municipality, Ward No.-5, Holding No. RGM-5/155, 5/156, 5/174, 5/175, 5/176, 5/177, 5/178 District-North 24-Parganas.
That the Opposite Party No.-6 is a company incorporated under the Companied Act, 1956, having its registered office at P-186, Rajarhat Road, Kolkata- 700186 and the Opposite Party No.-7 and 8 are the authorized signatory and C.E.O. & M.D. of the Opposite Party No.-7. Opposite Party No.-8 is also the constituted Attorney of the Opposite Party No.-5.
That the Opposite Party No.-6 to 8 approached to Opposite Party No.1 to 5 for constructing the multi storied building as per sanctioned plan, sanctioned by Rajarhat–Gopalpur Municipality (R.G.M.) vide sanction Plan No. 295/13/14 dated 23.07.2013 on the land as mentioned above.
That the Complainants approached the Developer (Opposite Party No.-6 to 8) to purchase one self contained residential flat being Flat No.-A604, on the 6th floor, measuring about 1,742 sq. ft. super built up area together with unpartiable proportionate undivided share or interest in the land along with one covered car parking space on the ground floor in the project Bellagio LVI Nxt at a total consideration of ₹68,77,751/- (Rupees Sixty Eight lakh Seventy Seven thousand Seven hundred and Fifty One only) including club membership legal charges, transformer charges, generator charges etc. to the Complainants and thereafter a Flat Sale Agreement dated 04.12.2013 was executed by and between the parties.
That Complainants paid ₹38,51,435/- on different dates to the Opposite Party No.-6 to 8 as a part payment and the Opposite Parties (O.P.s) issued provisional allotment letter in favour of Complainants on 04.12.2013 in respect of Flat No.- A604 in the Project Bellagio LVI Nxt.
That as per agreement for sale of flat dated 04.12.2013 the Opposite Parties stated that construction work shall be completed with 40 months from the date of agreement and it can be extended by a period of 6 (Six) months and thereafter possession of flat handed over to the Complainants.
That after expiry of the stipulated period, Opposite Parties are failed or neglected to complete even ground floor piling work.
That on 24.04.2018, the Developers agreed to refund the entire deposited earnest money if they failed to complete construction work by 27.11.2018.
That the developers failed to complete the construction works as per their promise and ultimately, refunded ₹19,00,000/- (Rupees Nineteen lakh only) and a cheque of ₹15,00,000/- (Rupees Fifteen lakh only) and the said cheque was dishonored on the ground of “ Payment stopped by Drawer”.
That the developers failed to returned the rest amount even after demand notice.
Hence, this case,
Points for decision
- Whether complainants have any cause of action to file this case or not?
- Whether Complainants able to prove the deficiency of service on the part of Opposite Parties under Consumer Protection Act, 2019 or not?
- Whether complainants will entitle to get any relief / reliefs as prayed for or not?
Decision with reasons
All these points are taken up together for sake of convenience and brevity.
In support of this complaint case, Complainants were filed Affidavit-in-Chief and other related documents.
I have carefully perused the Affidavit-in-Chief along with other supporting documents.
It appears from allotment letter dated 04.12.2013, that Complainants made payment of ₹38,51,435/- on different dates which acknowledged by the developers by issuing provisional allotment letter dated 04.12.2013 and thereafter entered into agreement for sale of the allotted flat dated 04.12.2013.
As per agreement for sale dated 04.12.2013, developers would complete the construction work within 40 months and which may be extended by 6 months.
As per terms of agreement for sale, developers failed to complete the construction within 40 months even after completion of extended period and did not returned entire money paid the Complainants.
Non-delivering of possession of allotted flat, it is certainly deficiency of service on the part Opposite Parties / Developers under Consumer Protection Act, 2019 and Complainants have cause of action to file this case against the Opposite Parties.
Hence, Complainants will entitle relief as prayed for.
All the points disposed of accordingly.
In the result this complaint case succeeds.
Court fee paid correct.
Hence,
It is
O R D E R E D
that this Complaint Case No. 44/2021 be and the same is allowed ex parte against all the Opposite Parties.
Opposite Parties are directed to make payment of ₹19,51,435/- (Rupees Nineteen Lakh Fifty One thousand Four hundred and Thirty Five only) jointly and severally along with the interest @ 5% per annum from the date of payment as per agreement for sale i.e. from 04.12.2013 till the date of realization of the entire decreetal amount.
Opposite Parties are directed to make payment of compensation of ₹25,000/- (Rupees Twenty Five thousand only) jointly and severally for mental harassment and agony and litigation cost of ₹10,000/- (Rupees Ten thousand only).
All the above payment should be made by the Opposite Parties within 3 (Three) months from the date of this order, in default, liberty given to the Complainants to file Execution Case for realization of the same.
Hence, this complaint case is disposed of accordingly.
Let a copy of this judgement be handed over to the Complainants at free of cost.
