FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
Complainants’ case in short is that the OP1 is developer. Being allured by the advertisement published by the OPs the complainants booked a Plot of Land being Plot No. 423 of the scheme Plan of ECO City (South) , measuring about 5cottahsequivalent to 3600sq.ft be the same or more or less demarcated and comprised in Dag No. 259 & 276 lying and situated in Mouza-Kaikhali , J.L. No. 97under Police Station – Bishnupur , District – 24 Parganas (South) at the rate of Rs.50,000/- per Cottah which comes at total price of Rs.2,50,000/-. The complainants paid a sum of Rs.1,08,187/- towards the booking money and the balance consideration price of the said plot of land was agreed to be paid in 47 monthly of Rs.3107/- equal instalments. OPs have promised to execute and register conveyance in respect of the said plot of land after completion of development work and on making payment of balance consideration mount. The terms and conditions to purchase the developed plot of land in the said project were reduced into writing vide Agreement for Sale dated 26/06/2013. Although the OPs have promised to complete the entire development work and to hand over possession of the plot of land by 2017 as per Agreement but the OPs is totally failed and neglected to deliver and register the same in favour of the complainants.The complainants regularly visited the head office and branch office of the OPs in frequent interval but the OPs failed and neglected to give any response to the complainants. Moreover there was no progress in development work and the land was abandoned till the end of December 2020. Ultimately the complainant opted for refund of the deposited amount with interest. On reply OPs informed that delay in delivery of possession of the said land was occurred due to permission being not granted by the concern local authority for conversion of land. Having no other alternative the complainants sent a letter dated 26/12/2021 through registered post at the respective addresses of the OPs. But the same were returned unserved with remark ‘Left’. However the letter sent to Mr. AsitPramanik being one of the directors of the developer/company was returned unserved with remark ‘Deceased’. Complainants have made online search of the said company and its directors through official website of ‘ROC’ and found that the registered addresses of the company and the directors are the same as mentioned on the envelope and there is no update of their new addresses in the website. The complainants, therefore, has prayed before the Forum forrefund of money along with other reliefs.
OPs despite service of notice of the complaint have failed to file Written Version within the limitation provided u/s 38(2) of the Consumer Protection Act, 2019. No request for condonation of delay or extension of time for filing written version is made. Therefore, right of the OPs to file WV is closed.
Complainant has filed his evidence by way of affidavit supporting the allegations made in the complaint.Ld. Advocate for the complainant has taken us through the consumer complaint as also the evidence adduced of the complainant.
We have travelled over the documents on record namely MEMORANDUM OF AGREEMENT, money receipts in respect of EMIs as filed by the complainants. The admitted fact is that the complainant booked the said plot with the OPs on 26/06/2013 and a Memorandum of Agreement is signed by and between the parties. In terms of Clause 9 of the agreement it is stipulated that the OP developer shall complete all necessary works of the said land with construction of metal road to reach the plots of land along with side drains & other necessary works pertaining to the basic infrastructure and in terms of Clause 10 the development works of the project may be completed approximately by the year of 2017. So, the OPs are liable to develop the plot within stipulated period. The complainants alleged that via letter dated 26/12/2021 they asked the OPs to refund the money they have already paid along with interest. It appears that the OP developer has received Rs.1,08,187/- but has failed to make any development of the project.
On evaluation of materials on record, it transpires that the complainant being 'consumer' as defined in Section 2(7)(i)(ii) of the C.P.Act 2019 hired the services of OPs on consideration and OPs have failed to fulfil their part of obligations as per Memorandum of Agreementdated 26.06.2013and thereby deficient in rendering services towards the complainant within the meaning of Section 2(11) read with Section 2(42) of the Act. Therefore, the complainant is entitled to some reliefs. Despite payment of bulk consideration amount and agreed to pay the balance amount, when the complainants was deprived from having a roof of his own over their head for long years, certainly it caused tremendous mentally agony and harassment for which they are entitled to compensation and considering the loss suffered by him. Under compelling circumstances, the complainant has to knock the door of this Commission constituted under the Act.
It is pertinent to note that despite service of notice of the complaint, OPs did not put in appearance nor the OPs filed Written Version in response to the complaint. As the OPs has failed to controvert the allegations in the complaint by filing Written Version, the allegations in the complaint are deemed to have been admitted as correct. It is well settled that the allegation made in the complaint, if not denied is deemed to be admitted as correct. The complainants in their affidavit did support the allegations in the complaint. Therefore, it cannot be said that complainant has failed to prove deficiency in service. We think that OP developer is guilty of unfair trade practice. We are constrained to hold that the OP developer has set up a gesture of unfair trade practice apart from establishing a bad example of deficiency of service.
In that perspective, keeping in view the decision of the Hon'ble Supreme Court reported in (2018) 5 SCC 442 (Fortune Infrastructure - Vs. - Trevor D'Lima) it can be held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and in such circumstances entitled to seek refund of the amount paid by him along with compensation. Keeping in view of the decision of the Hon'ble Supreme Courtreported in (2019) 5 SCC 725 (Pioneer Urban Land & Infrastructure Ltd. Vs.- GovindanRaghavan) it appears to us that in the facts and circumstances when there is clear deficiency in rendering services on the part of the OPs in handing over the possession within the time frame, the complainant is entitled to get the relief as prayed for along with compensation.
In result, the case succeeds.
Hence,
ORDERED
That the instant case be and the same is allowed on ex parte against the OP.
- OPs are jointly and severally directed to refund the entire amount of Rs1,08,187/- to the complainant within 30 days from the date of this order.
- OPs are further jointly and severally directed to pay an amount of RS.20,000/- as litigation cost within stipulated period.
- OPs are also jointly and severally directed to pay an amount of Rs.30,000/- for causing mental agony and harassment within stipulated period.
Let the copy be supplied to the parties as per C.P regulation.
