Ld Advocate for the complainant is present. Judgement is ready. It is pronounced in open Commission in 5 pages 3 separate sheet of papers.
BY - SMT.KABITA ACHERJEE (GOSWAMI), MEMBER
The facts of this case to put in a nutshell below.
The complainant is the citizen of India and has been permanently residing at the aforesaid address within the jurisdiction of this commission.
The complainant having intended to purchase a Flat from the Opposite Party made an application and, as per instruction, booking amount of Rs. 10,000/-(Rupees Ten thousand) was deposited at the time of making such application for allotment of Flat on 21.09.2018.
The allotment of Flat was made in favour of the complainant by the Opposite Party by issuance of an Allotment Letter for (Royal Enclave Project) by the Opposite Party on 08.10.2018 whereby the Complainant was allotted a Flat on 750 Sqft., Block-2, Tower-8, 3rd Floor, Flat-B, in Royal Enclave Project, having B.S.P. Rs.18,00,000/-, Amenities Rs. 1,25,000/-, Covered Car Parking Rs. 2,50,000/- and the Opposite party offered thanks to the Complainant for being a member of Dharitri Infraventure Pvt. Ltd. out of the total amount of Rs. 21,75,000/- the Complainant paid Rs. 10,000/- to the Opposite Party on 21.09.2018 as first installment and Rs. 2,07,500/- only to the Opposite party on 25.09.2018 towards second installment out of the total consideration money. Amount was received by the Opposite Party by issuance of necessary receipt therefore upon receipt of the amount from the Complainant.
Subsequently, the Opposite party failed to construct the Building/Flat within the stipulated period of time as per Agreement. Accordingly, the Complainant issued a letter to the Opposite party with the prayer for cancellation of the Agreement and also requested the Opposite party to make refund of the earnest money already taken by the O.P.
Upon receipt of the said letter, the Opposite Party made payment of Rs. 10,000/-(Rupees Ten Thousand) on 31.07.2020, Rs. 10,000/-(Rupees Ten thousand) only on 17.03.2022 and Rs. 10,000/- only on 22.03.2022 i.e. in total Rs. 30,000/- has been paid to the complainant by the O.P. till 22.03.2022.
The complainant made repeated request to the Opposite party to refund the balance earnest money but the OP has failed to do for the reason best known to here.
The Opposite Party has failed to perform as per the Agreement dated 08.10.2018 and also has failed to refund the balance earnest money.
Finding no other alternative, the Complainant sent a Legal Notice through his learned Advocate, demanding making payment of a sum of Rs. 1,87,500/-(Rupees one lakh eighty seven thousand and five hundred) only with interest.
Due to interaction on the part of the Opposite party to construct the Building at the place selected by them within the stipulated period of time and thereby the complainant has sustained severe financial loss, harassment, and mental paid due to gross negligence and severe deficiency/on the part of the Opposite party in rendering service promised to the complainant to be given by the O.P.
Finding no other alternative, the complainant is hereby filing this case before the Ld. Commission, In the above facts and circumstances, the complainant prays for the following reliefs:
An order or direction upon the Opposite Party for making refund of the balance earnest money of Rs. 1,87,500/- (Rupees one lakh eighty seven thousand and five hundred) only
An order for making payment of further compensation of Rs. 50,000/- to the complainant for deficiency of service, mental pain and agony;
An order for payment of litigation cost of Rs. 20,000/- to the complainant for conducting the case;
The cause of action of this case has finally occurred on 22.3.2022 when the op promised to give rest amount i.e. Rs.1,87,500 but till now due to the OP parties.
After filing the Postal Track report, it is found that OP received the notice and filed W.V. on 13.01.2023 and that thereafter they are not interested to proceed the case. So, the case shall run ex-parte against the OP vide order No. 13 dt. 22.11.2023.
Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the Complainant entitled to the relief(s) as sought for?
Decision with reasons
Both the points I and II, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
We have carefully perused the evidence of the Complainant along with all papers and other documents.
Having regards to the facts and circumstances of the case in the light of evidence, it is evident that there is no dispute that Complainant is a consumer having grievances against the OP, as such the case is maintainable in its present form and in law.
It is evident from the evidence of the complainant and other materials on record that the complainant has claimed Rs. 1, 87,500/- from the OP, Chandreyee Basu, Director, Manager Client support, M/s. Dharitri Infraventure Pvt. Ltd. for purchasing a allotted flat 750 Sqf. Block-II, Tower – 8, 3rd Floor, Flat B in Royal Enclave Project. But the OP through received the advanced amount/ 1st installment of Rs. 10,000/- and 2nd installment of Rs. 2,07,500/- but OP did not provide any flat to the complainant and it is further seen from the case record that the Opposite Party failed to construct the building/flat within the stipulated period of time as per agreement.
That thereafter the complainant issued a letter to the OP with the prayer for cancellation of the agreement and also requested to the OP to make refund of the earnest money which was already taken by the OP on 21.09.2018 and 25.09.2018.
That thereafter OP received the said letter and OP made payment of Rs. 10,000/- on 31.07.2020, Rs. 10,000/- dated 17.03.2022 and Rs. 10,000/- on 22.03.2022 i.e. all total of Rs. 30,000/- out of Rs. 2,17,500/-
That thereafter the complainant repeatedly requested to the Opposite party to refund the balance earnest money and the OP assured to pay back the remaining amount within a short period of time but till the date of filing of this case OP did not pay the reschedule amount of Rs. 1,87,500/- and i.e. why we are of the view that the complainant is entitled to get back the said amount of Rs. 1, 87,500/- along with the interest at the rate of 7% per annum which shall be calculated from the date of filing of the case i.e. 11.10.2022.
Both the points are decided in the favour of the complainant.
Thus, the complainant case succeeds.
Hence, it is
O R D E R E D
that the CC - 144 of 2022 be and the same is allowed ex-parte against the OP.
The OP is hereby directed to pay the rest amount i.e. Rs. 1,87,500/-(Rupees one lakh Eighty Seven Thousand and Five Hundred) only i.e. (2,07,500 + 10,000) = 2,17,500 – 30,000 = 1,87,500/- along with simple interest @ 7% per annum from the date of filing of this case i.e. 11.10.2022 to till realization.
In addition to that the OP, Chandreyee Basu, Director, Manager Client support, M/s. Dharitri Infraventure Pvt. Ltd. is also directed to pay Rs. 5000/- as compensation and Rs. 5000/- towards litigation cost.
The OP will comply the above order within 45 days from the date of this order, in default, the complainant will be at liberty to put this order into execution.
Let a copy of this judgment be supplied to the complainant and OP free of cost.
