FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT           

This is an application u/s.12 of the C.P. Act, 1986.

 The brief facts relevant for the disposal of the present consumer complaint are that the complainant booked a flat measuring about 200 Sq. ft. on the 04^th floor at Premises No. 57, Dr. G.S. Bose Road, Kolkata – 700 039 with OP-1/ Developer, Mr. Chhabi Das. The total consideration of the subject flat is Rs.5,00,000/- . An Agreement for Sale dated 14.02.2018 was executed incorporating their  respective obligations in in respect of the aforesaid transactions. In terms of the Agreement for Sale complainant has paid Rs.2,00,000/- to the OP-1 as part consideration. As per Sale Agreement the possession of the flat is to be delivered within 12 months from the effective date. Complainant had been to the proposed building site and shocked that no progress of construction noticed. OP-1 expressed his inability to construct the building within the stipulated time and also agreed to refund the part consideration amount but failed to refund the advanced amount. Finding no other alternative, complainant issued legal notice dated 27.02.2019 to the OP-1 but such notice was unattended. There is deficiency in service and unfair trade practice on the part of OP-1. Hence, the complaint is before this Forum seeking refund of Rs.2,00,000/- along with litigation cost and compensation.

Despite of service of notices OPs did not turn up to contest the case. As such, the case has proceeded ex parte against the OPs.

Decision with Reasons

            To prove her case complainant led evidence through affidavit. Complainant has also filed Brief Notes of Agreement. We have heard the complainant in person and have also gone through the evidence as well as documents on record.

            Fact remains that OP-2 is the owner of a land measuring  about 02 cottahs 04 chittaks comprised in Dag Nos. 4,7, & 8 under Khatian No. 73, Mouza – Laskarhat within Kasba PS known as K.M.C premises No. 57, Dr. G. S. Bose Road, Kolkata – 700 039 who entered into a Development Agreement with the OP-1 for construction of a 4^th storied building at  the said premise. It is also true that the complainant had entered into an Agreement for Sale dated 14.02.2018 with the OP-1 for purchasing a flat measuring about 200 sq. ft. on the 4^th floor together with all easement right at a total consideration of Rs.5,00,000/- and in terms of the Sale Agreement complainant has already paid Rs.2,00,000/- to the OP-1 vide cheque Nos. 889271 & 614904 dated 15.02.2018 & 14.03.2018 drawn on Canara Bank and State Bank of India. Complainant  had  been to the proposed building site and shocked  that no progress of construction  noticed. The OP-1 expressed his inability to construct the building and also agreed to refund the consideration amount but failed to do so. Ultimately, complainant issued legal notice dated 27.02.2019 to the OP with a request to refund booking money but such notice was unattended. Complainant hired services from the OP-1 upon payment of consideration. Thus, she is the consumer under C.P. Act, 1986.

            OP-2 is the landlord of the plot of land where the OP-1 /  Developer proposed to construct  a 4^th storied  building. The OP-2 is not the party  to the Agreement for Sale  dated 14.02.2018 executed between the complainant and O.P.-1 in respect of the subject flat. There is no legal relationship of privity of contract between the complainant and OP-2 in so far as Agreement for Sale. Agreement for Sale goes to show that all payments were made to the OP-1. The OP-2 did not provide any service to the complainant. As such, there is no deficiency in service or unfair trade practice on the part of the OP-2. In our opinion, the OP-2 is unnecessary party to the instant consumer case.

            The OP-1 being the Developer has agreed to sell the subject flat to the complainant from his allocation. Neither the OP-1 construct the proposed 4^th stories building at KMC Premises No.57, Dr. G.S. Bose Road, Kolkata-700039 nor refund the booking money to the complainant. In fact, the OP-1 withhold the booking amount  of Rs.2,00,000/- without any cogent reason. There is no evidence on the part of the OP-1 to rebut the evidence of the complainant. Therefore, we are of the view that there is deficiency in service and unfair practice on the part of the OP-1.

            The Consumer Protection Act came in to force being the year 1986. It is the benevolent piece of the legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The act and conduct of the OP-1 is a clear case of deception which resulted in the injury and loss of opportunity to the complainant. The complainant cannot wait indefinitely to refund the booking money. The complainant has suffered mental agony and harassment. It is settled principle of law that the compensation should be commensurate with loss of suffered and it should be just, fair and reasonable and not arbitrary. In the circumstances, the complainant is entitled to get refund of Rs.2,00,000/- from the OP-1 along with compensation of Rs.25,000/-.

            In the result, the case succeeds in part.

Hence,

Ordered

That the complaint case be and the same is allowed in part ex-parte against the OP-1 with litigation cost of Rs.5,000/- and also dismissed ex-parte against the OP-2 without any cost.

            The OP-1 is directed to refund Rs.2,00,000/- (Rupees Two Lakhs) only along with compensation and litigation cost of Rs.25,000/- and Rs.5,000/- respectively to the complainant within 45 days from the date of this order, in default, the complainant  to put the order in execution according to law.