FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The present consumer complaint has been filed U/s 35 of the Consumer Protection Act, 2019 by the complainant against the OP-1 M/s Viswakarma Construction and its sole proprietor in relation to a residential flat booked in the proposed building situated at KMC Premises No. 4/1R/1A, Abinash Chowdhury Lane, Kolkata-700046.
The brief facts leading upto the present complaint are that OPs 2 to 5, 7 and mother of OP-6 namely Chanda Datta, since deceased are the joint owners of a land measuring about 02 cottahs 06 chittaks and 26 sq. ft. more or less situated at KMC Premises No. 4/1R/1A, Abinash Chowdhury Lane, Kolkata-700046. The above named owners decided to develop the said premises by constructing a multistoried building thereon through OP-1 and also executed and registered a Development Agreement. Land owners have also executed and registered a Power of Attorney in favour of OP-1. Complainant being the existing tenant of a room of existing structure agreed to purchase a self contained room measuring about 180 sq. ft. super built up area on the ground floor or 1st floor of the proposed building from the allocation of the OP-1 at total consideration of Rs. 4,50,000/-. In Agreement for sale, it was executed with OP-1 on 23.06.2017. Out of total sale price complainant had paid Rs. 4,05,000/- to the OP-1 against money receipts. As per said agreement, the OP-1 was under obligation to handover physical possession of the booked flat to the complainant within a period of 24 months from the date of execution of the Agreement for Sale. According to the Agreement for sale, the complainant is liable to paid balance sale price of Rs. 45,000/- to the OP-1 with six months from the date of delivery of possession of the booked flat. The grievance of the complainant is that possession is not offered to her and construction is not commence. The period of delivery of possession expired on 23.06.2019. The complainant therefore, served a notice dated 01.06.2021 to the OP-1 seeking refund of her deposits with interest. It is also alleges that non executing of the proposed building despite of amounts to negligence in service and complainant, therefore, served a notice dated 01.06.2021 to the OP-1 seeking refund of her deposits with interest. It is also alleges that non execution complainant, therefore, served a notice dated 01.06.2021 to the OP-1 seeking refund of her deposits with interest. It is also alleges that non execution of the proposed building despite of receipt of deposits from time to time amounts to negligence in service and she is accordingly before this commission with the following prayer:-
- Refund of deposited amount of Rs. 3,05,000/- along with interest @ 18 % per annum from the date of payments till realization;
- Compensation of Rs. 50,000/- for suffering mental agony and harassment;
- Litigation cost of Rs. 25,000/-;
Any other reliefs which the commission may deem fit and proper in the facts and circumstances of the case.
Despite service of notices, the OPs did not turn up to contest the case filing WV within the specified period as provided U/s of the CP Act, 2019. Thus, the consumer case runs ex parte against the Developer and landowners.
In support of her case the complainant has filed E/chief supported by an affidavit. She also relied the documents annexed with the complaint petition.
We have heard argument on merit. Perused the consumer complaint including E/chief of the complainant and documents on record. We have also gone our thoughtful consideration.
The complainant by way of un-contradicted testimony has proved that the owners of a land measuring about 02 cottahs 06 chittaks and 26 sq. ft. more or less situated at KMC premises No. 4/1R/1A, Abinash Chowdhury Lane, Kolkata-700046 belong to OPs 2 to 5, 7 and mother of OP-6 namely Chhanda Dutta, since deceased and the land owners decided to develop the said premises by constructing a multi storied building thereon through OP-1 by executing and registered development agreement. The above named land owners also executed and registered a power of attorney in favour of OP-1 and on perusal of the agreement for sale dated 23.06.2017 it appears to us that OP-1 has entered into an agreement for sale of the subject flat measuring about 180 sq.ft. super built up area on the ground floor and/or first floor of the proposed building from the allocation of the OP-1 and the total sale price of the subject flat is Rs. 4,50,000/- with the complainant. As per said agreement, the OP-1 is supposed to handover physical possession of the subject flat to the complainant within a period of 24 months from the date of execution the agreement for sale and the complainant is also liable to pay balance sale price of Rs. 45,000/- to the OP-1. We have it from the memo of receipt that the complainant has already paid Rs. 3,05,000/- to the OP-1 out of the total sale price. Despite the expiry of 24 months of the subject flat is not handover to the complainant. Despite service of legal notice dated 01.06.2021 the OP-1 did not refund the deposited amount with interest to the complainant. It is pertinent to note that the OP-1 being the developer has not filed any WV and/or evidence to support his case regarding non-delivery of subject flat to the complainant though the complainant has already paid Rs. 3,05,000/- to the OP-1 out of the total sale price even no possession has been offered to the complainant so far as the OP-1 even though several request and legal notice.
The decision of NCDRC in Yogesh Mann and Anrs. Vs. M/s Imperia Structures Ltd., (Supra) very specifically upheld the status of the complaint as a consumer and awarded him refund with interest and cost in view of the incomplete status of the project. The OP-1 has not produced evidence to defend his case to the contrary of the consumer case. Therefore, we have no hesitation in concluding that the OP-1 has committed deficiency in service as also has indulged in unfair trade practice. As per agreement for sale, there is no liability of the remaining OPs with regard to refund of deposited amount. The liabilities of We are, therefore, inclined to accept the contention of the Ld. Counsel of the complainant.
We are of the considered view that there is deficiency in service by the OP-1 in not delivering the subject flat even after expiry of the promised delivery period under the agreement for sale dated 23.06.2017. In view of the admitted non completion of the flat, we allowed the complaint and direct to refund of the amount deposited by the complainant with interest as follows:-
i) The OP-1 is directed to refund the amount deposited by the complainant (Rs. 3,05,000/-) with simple interest @ 9 % p.a. from the respective dates of deposit to the complainant within a period of 90 days from the date of receipt of this order;
ii) Litigation cost of Rs. 10,000/- to be also paid by the OP-1 to the complainant;
iii) This directions shall be complied by the OP-1 within 03 months of the receipt of this order failing which shall attract simple interest @ 12 % p.a. for the said period.
Thus, the consumer case is allowed in part ex parte against the OP-1 and also dismissed ex parte against the remaining OPs.
Copy of the judgment be supplied to the parties free of cost as per CP Act. Upload the judgment on the website of this Commission for perusal of the parties.
