This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did neither take any step to provide him the peaceful vacant possession of the residential flat as mentioned in the schedule along with execution of the sale deed in his favour in respect of the said flat nor refund the advance money as paid by him along with interest.

The brief fact of the case of the Complainant is that the OP-1 is the proprietorship concern represented by the OP-2 and the OP-3 is the absolute owner of the land on which the questioned flat has been erected. The OP-1 and 2 have entered into registered development agreement with the OP-3 on 05.03.2013 and accordingly the OP-3 had executed a Power of Attorney under certain terms and conditions  for construction of a multi-storied building over the land as per the sanctioned building plan by the Rajarhat-Gopalpur Municipality or any other appropriate authority. For amalgamation of two plots separate development agreement was also executed on the same date by and between the OP-1, 2 and the OP-3.  On 26.05.2015 the OP-1 and 2 have entered into an agreement for sale with this Complainant to sell a residential flat measuring about 425 square feet  including super built-up area being flat no-G/A on the ground floor in the Block-H/P in the said multi-storied building consisting of 1 bed room, 1 drawing cum dining, 1 kitchen, 1 toilet and 1 balcony along with proportionate share of land including rights of the common areas at the said building namely Heaven Plaza at the total consideration of Rs.10,20,000/-. Out of the said amount the Complainant paid a sum of Rs.1,00,000/- at the time of execution of the agreement for sale through cheque being no-046319 dated 26.05.2017  and it was specifically mentioned that the Complainant shall pay the balance amount as per the payment schedule of the agreement, but in the payment schedule it was not specifically mentioned as and when the balance amount will be paid to the OP-1 and 2. The OP-1 and 2 have assured that they will arrange for bank loan for the said flat, but as the land being not bastu land the bank was not agreed to give bank loan for the said flat though it was specifically mentioned in the agreement for sale that the land is a bastu land. The Complainant informed the OP-1 and 2 about their misrepresentation of the actual fact regarding the status of the land, but the Complainant without going to any litigation requested them to refund the paid amount, but the OP-1 and 2 requested the Complainant to purchase the said flat as they would allow some time for the same and it was settled by and between the Complainant and the OP-1 and 2 that the OP-1 and 2 will allow the purchaser at least 5 years to purchase the said flat and in the meantime they shall convert the land from Pukur to Bastu and when the Complainant will pay the entire due amount to the Op-1 and 2 for the said flat, the OP-1 and 2 will hand over the peaceful possession of the flat along with execution of the sale deed immediately. Though there is no mentioning of the time for payment schedule, the Complainant paid a sum of Rs.1,50,000/-, hence till 05.06.2017 the Complainant paid a sum of Rs.2,50,000/- in total out of the said consideration money. On 19.01.2018 by issuing a letter the OP-1 and 2 demanded Rs.5,00,000/- within a week, otherwise the OP-1 and 2 will cancel the agreement for sale. The OP-1 and 2 directed the Complainant to meet at their office with original agreement, money receipts with prior intimation, but they did not mention in the said letter as to whether the land has already been converted or not as per their commitment and there is no whisper in the said letter regarding refund of the paid amount as already sought for by the Complainant. So the OP-1 and 2 have no right to cancel the agreement unilaterally. Upon receipt of the said letter the Complainant went to the office of the OP-1 and found that the office was closed and thereafter issued two letters, but the same were returned to the Complainant. The OP-1 and 2 in collusion with each other intended to deprive the Complainant from his legitimate right after receipt of the amount for the flat without providing him proper and valid documents as per description of the agreement for sale and now threatened him that the developers will cancel the said agreement for sale without refunding him the paid amount and conversion of the land. The Complainant is always ready and willing to hand over the balance amount for the flat if they will hand over the valid documents regarding the status of the land, inspite of this the OPs have refused his request. The Complainant got information that the OPs are taking initiative to sell out the said flat to the third party depriving him. The Complainant had invested his hard earned money for purchasing this flat, but inspite of his diligent effort and having no negligence on his part the OPs have failed to comply with the terms and conditions of the agreement for sale. The Complainant had tried to settle the dispute by way of amicable settlement, but to no effect and hence having no other alternative the Complainant has approached before the Ld. DCDRF, Barasat by filing this complaint praying for direction upon the OPs either jointly or severally to hand over the peaceful vacant possession of the said flat along with execution of the deed of conveyance in his favour in respect of the said flat, failing which deed of conveyance be registered through the machinery of the Ld. DCDRF or to refund the amount as paid by him to the OP-1 and 2 along with interest. The Complainant has also sought for compensation due to his mental agony, harassment and litigation cost from the OPs.

This complaint was initially filed before the Ld. DCDRF, Barasat. After establishment of this Ld. Forum, this record was transferred from the Ld. DCDRF, Barasat to this Ld. Forum in view of the order passed by the Hon’ble SCDRC. It is pertinent to mention that after enactment the Consumer Protection Act, 2019 the nomenclature of the Ld. Forum has been changed to Ld. Commission. This complaint was admitted before the Ld. Commission, Barasat. At the stage of service return the record had transferred, so upon receipt of this record this Ld. Commission was pleased to direct the office for issuance of notices upon the OPs. On 05.10.2020 it was evident that the OP-1, 2 and 3 received the notices, but did not turn up. As the OP-4 did not receive the notice further direction was given for issuance of the notice upon the OP-4. On 12.10.2020 the Complainant filed an application for correction of the address of the OP-4 by filing MA-34/2020. According to the amended complaint notice was issued upon the OP-4. But as the time limit for filing written version by the OP-1, 2 and 3 was expired, hence the Ld. Commission passed an order that the complaint will run exparte against the OP-1, 2 and 3. On 18.03.2021 from the postal track report filed by the Complainant it was evident that the OP-4 had received the notice on 22.01.2021. In the interest of justice further time was given to the OP-4 for filing written version. On 19.04.2021 as the OP-4 did not turn up to contest the complaint either orally or by filing written version inspite of receipt of the notice, hence order was was passed that this complaint will also run exparte against the OP-4. Thereafter the Complainant had adduced evidence on affidavit and BNA.

At the very outset we are to mention to the judgment passed by the Hon’ble NCDRC in the case of Singla Builders & Promoters Limited vs Aman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’

The abovementioned Ruling can be applicable in the case in hand as in the instant complaint inspite of receipt of the notices the OPs did not bother to turn up to contest the complaint either orally or by filing written version. Therefore in view of the said judgment the allegations as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations.

 We have carefully perused the petition of complaint and all related papers and documents as available and heard exparte argument advanced by the Ld. Counsel for the Complainant. It is seen by us that the OP-1 and 2 are the developers and the OP-3 is land owner. On the land of the OP-3 the OP-1 and 2 developed and erected the multi-storied builing for which development agreement was executed by and between the OP-1, 2 and the OP-3. The OP-3 had executed a Power of Attorney under certain terms and conditions for construction of a multi-storied building over the land as per the sanctioned building plan by the Rajarhat-Gopalpur Municipality or any other appropriate authority. For amalgamation of two plots separate development agreement was also executed on the same date by and between the OP-1, 2 and the OP-3.  On 26.05.2015 the OP-1 and 2 have entered into an agreement for sale with this Complainant to sell a residential flat measuring about 425 square feet  including super built-up area being flat no-G/A on the ground floor in the Block-H/P in the said multi-storied building consisting of 1 bed room, 1 drawing cum dining, 1 kitchen, 1 toilet and 1 balcony along with proportionate share of land including rights of the common areas at the said building namely Heaven Plaza at the total consideration of Rs.10,20,000/-. Out of the said amount the Complainant paid a sum of Rs.1,00,000/- at the time of execution of the agreement for sale through cheque being no-046319 dated 26.05.2017  and it was specifically mentioned that the Complainant shall pay the balance amount as per the payment schedule of the agreement, but in the payment schedule it was not specifically mentioned as and when the balance amount will be paid to the OP-1 and 2. The OP-1 and 2 have assured that they will arrange for bank loan for the said flat, but as the land being not bastu land the bank was not agreed to give bank loan for the said flat though it was specifically mentioned in the agreement for sale that the land is a bastu land. The Complainant informed the OP-1 and 2 about their misrepresentation of the actual fact regarding the status of the land, but the Complainant without going to any litigation requested them to refund the paid amount, but the OP-1 and 2 requested the Complainant to purchase the said flat as they would allow some time for the same and it was settled by and between the Complainant and the OP-1 and 2 that the OP-1 and 2 will allow the purchaser at least 5 years to purchase the said flat and in the meantime they shall convert the land from Pukur to Bastu and when the Complainant will pay the entire due amount to the OP-1 and 2 for the said flat, the OP-1 and 2 will hand over the peaceful possession of the flat along with execution of the sale deed immediately. Though there is no mentioning of the time for payment schedule, the Complainant paid a sum of Rs.1,50,000/-, hence till 05.06.2017 the Complainant paid a sum of Rs.2,50,000/- in total out of the said consideration money. On 19.01.2018 by issuing a letter the OP-1 and 2 demanded Rs.5,00,000/- within a week, otherwise the OP-1 and 2 will cancel the agreement for sale. The OP-1 and 2 directed the Complainant to meet at their office with original agreement, money receipts with prior intimation, but they did not mention in the said letter as to whether the land has already been converted or not as per their commitment and there is no whisper in the said letter regarding refund of the paid amount as already sought for by the Complainant. So the OP-1 and 2 have no right to cancel the agreement unilaterally. Upon receipt of the said letter the Complainant went to the office of the OP-1 and found that the office was closed and thereafter issued two letters, but the same were returned to the Complainant. The OP-1 and 2 in collusion with each other intended to deprive the Complainant from his legitimate right after receipt of the amount for the flat without providing him proper and valid documents as per description of the agreement for sale and now threatened him that the developers will cancel the said agreement for sale without refunding him the paid amount and conversion of the land. The Complainant is always ready and willing to hand over the balance amount for the flat if they will hand over the valid documents regarding the status of the land, inspite of this the OPs have refused his request. The Complainant got information that the OPs are taking initiative to sell out the said flat to the third party depriving him. The Complainant had invested his hard earned money for purchasing this flat, but inspite of his diligent effort and having no negligence on his part the OPs have failed to comply with the terms and conditions of the agreement for sale. The Complainant had tried to settle the dispute by way of amicable settlement, but to no effect and hence having no other alternative this consumer complaint is initiated by the Complainant praying for certain relief along with refund of the paid amount along with interest.

We have noticed that on 26.05.2015 the Complainant had entered into an agreement for sale with the OP-1 and 2 for purchasing one flat in the multi-storied building erected by the promoters and developers. At that point of time in the agreement for sale the nature and the status of the land was not mentioned properly by the OP-1 and 2 as it was not Bastu land. For which the Complainant did not get the house building loan from the Bank. The Complainant has expressed the same to the OP-1 and 2 and on reply after admitting the allegation the OP-1 and 2 assured the Complainant that they will take initiative to convert the land from Pukur to Bastu within a very short period and for this purpose the Complainant will get ample time. From the documents it is clear to us that the OP-1 and have miserably failed to keep their commitment, rather created pressure on the Complainant to pay more money out of the consideration amount. The Complainant being a peace loving person did not want to proceed legally against the OP-1 and 2, rather requested them to refund the paid amount of Rs.2,50,000/- to him along with interest. Though the Complainant was told by the OP-1 and 2 to come and meet at the office of the developers along with the all original documents, but in vain as the office was closed. The Complainant had issued two letters in this respect, but the same were also returned to him. Therefore it is crystal clear that for getting his legitimate refund the Complainant had to run from pillar to post, but to effect. It is also very surprising to us that when one agreement for sale is still persist, with the Complainant, then the developers have also executed deed of conveyance with another person on 27.03.2019, which is an example of unfair trade practice on the part of the OP-1 and 2. Therefore in our considered opinion the Complainant is very much entitled to get refund of the paid amount along with interest. 

Admittedly as the grievance of the Complainant have not been redressed by the OPs for a prolonged period, having no other alternative the Complainant has approached before the Court of Law for his redressal and by filing this complaint he has to incur some expenses, for which the Complainant is entitled to get litigation cost from the OPs.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-RBT/CC/91/2020 is thus allowed exparte against the OPs with cost.

The OPs shall refund either jointly or severally an amount of Rs.2,50,000/- to the Complainant along with interest @12% p.a.in the form of compensation on the said amount for the period from 26.05.2017 till the date of entire realization of the amount within 45 days from the date of passing this judgment along with litigation cost of Rs.15,000/- to the Complainant within 45 days from the date of passing this judgment, in default the Complainant will be at liberty to put the entire decree in execution as per provision of law.

Let plain copy be given to the parties free of cost as per the CPR.

Dictated and corrected by

 [HON'BLE MRS. Silpi Majumder]
               MEMBER