Hon,ble Mrs. Dipa Sen (Maity), Presiding Member

The instant complaint petition has been made by the Complainants against the Developer alleging deficiency in service in relation to housing construction.

The brief fact as set out by the Complainants is that being an intending purchaser of a residential self-contained flat situated at 1^st floor, South Eastern Portion measuring about 1000 sq. ft. super built up area more or less consisting of 3 bed rooms one drawing, dinning, kitchen, one toilet and one W.C in a proposed G+3 building together with undivided proportionate share of land lying and situated in Ward No.104, at Purba Jadavpur, Dist-24Pgs(s).   The total consideration amount of the said flat was decided as Rs.32,00,000/-.  The Complainants have paid Rs.5,00,000/- on the date of execution of the agreement for sale and thereafter paid sum Rs.20,00,000/- on various dates.

The Complainants have entered into an agreement for sale with the O.P No.1 for purchasing the said above mentioned flat on 21-02-2017.  It was agreed between the parties that the said flat will be handed over in a habitable condition within 12 months from the date of the agreement with extended period of three months.  But in spite of laps of stipulated period of fifteen months the subject flat was not handed over to the Complainants.  Recently Complainants came to know that O.Ps have initiated a civil suit No.677 of 2017 which is pending before the Ld. 4^th Civil Judge(Senior Division) at Alipur for disposal and in that case the Ld. Court has been pleased to pass an order of injunction against the O.Ps along with the O.P No.1 on 05-07-2017 which is well within the knowledge of the O.P No.1 and as a result of that order of the Ld. Court the construction work of the suit property is still pending.  Even after knowing of the said fact of the title suit being No.677/2017 the developer O.P No.1 after hiding the said information fraudulently taken sum of Rs.25,00,000/- from the Complainants.  Subsequently, the Complainants have visited the site and found that the entire construction has been stopped and intimated that due to an order of court the construction work has been stopped.  The developer also admitted the said fact.  Thereafter, the Complainants have requested several times to refund the entire amount of Rs.25,00,000/-.  But the O.P did not refund the said amount to the Complainants and nor deliver the possession of the said flat.  Complainants sent Advocate’s letter through their Ld. Advocate Sri Kamal Bandhopadhyay for refunding the said amount of Rs.25,00,000/- .  But the O.Ps did not reply the same. Without getting any other way Complainants approached before this Commission with the prayer to refund amount of Rs.25,00,000/- from the O.Ps with interest and compensation of sum of Rs.8,00,000/- and litigation cost of Rs.1,00,000/-

Heard the Ld. Counsel for the Complainants.

Perused the materials on record.

It appears from the scrutiny of the record that none of the O.Ps file W/V and the case was fixed for ex-parte hearing.  On 01-09-2019 O.P No.1 files questionnaire.   Complainants files evidence on affidavit and reply has also been filed by the Complainants against the said questionnaire filed by O.P No.1   In spite of opportunities O.Ps did not file any W/V or evidence on affidavit.  It clearly appears that in spite of payment of huge amount of Rs.25,00,000/- by the Complainants the construction work of the said project was not completed within the stipulated period of time.  The O.Ps are withholding the hard earned amount of the Complainants illegally. Complainants have categorically stated that the O.P No.2 has initiated a Civil Suit against all the O.Ps for partition and injunction being Title Suit No.677 of 2017 which is pending before the Ld. 4^th Civil Judge at Alipore.  But in spite of that the Developer has taken amount of Rs.25,00,000/- from him.  The Complainants have attached receipts dated 05-06-2017, 30-12-2017, 31-01-2018, 12-02-2018, 20-08-2017 wherefrom it appears that Complainants have made payment sum of Rs.20,00,000/-on different dates.  Complainants have made payment of another Rs.5 Lakh at the time of agreement.  As such, the Complainants have made payment of Rs.25,00,000/- (altogether) to the O.Ps/Developers.

O.Ps did not file any W/V or evidence on affidavit.  As such the averment made by the Complainants remain uncontroverted and unchallenged.

Careful perusal of materials on record clearly demonstrate that the Complainants being “Consumer” as define U/s.2(1)(d) of the Consumer Protection Act as the Complainants have hired services associated with housing construction.  But in spite of payment of huge amount of Rs.25 Lakh as part consideration amount the O.Ps/Developers did not handover possession of the said flat, not even complete the construction work and withholding the huge amount of Rs.25 Lakh of the Complainants illegally.  Which we consider deficiency in service as well as unfair trade practice adopted by the O.Ps. 

With the above discussions the Complainants are allowed ex-parte with the following directions against O.P No.1:-

1. The O.P No.1 is directed to refund of Rs.25,000/- to the Complainants with @ 9% interest from the date of payment till actual realization.
2. The O.P No.1 is further directed to pay Rs.5000/- as cost of litigation.  The above payment must be paid within 60 days from the communication of this order.

The Complainants are at liberty to put the order into execution after the stipulated period is over.