SAMIKSHA BHATTACHARYA,  MEMBER 

The complaint case  has been filed by the complainants under Section 17 (1) (a) (i) of CP Act, 1986 against the Ops alleging deficiency in service.

The facts of the case,  in brief, are that  the complainants  intended  to purchase one self-contained 2BHK residential flat having an area of more or less 750 sq. ft. on the   2^nd floor, Block No. 1, Tower 2, Flat No. B of the proposed housing complex known as Royal Enclave for a total consideration of Rs.18,00,000/- developed by the OPs. Accordingly,  the  complainants entered  into an agreement for sale on 23^rd May, 2018 with the OPs and on the  date of agreement, the complainants paid Rs.5,00,000/- only as earnest/advance money. Thereafter, the complainants paid further sum of Rs.10,000/- on 19.05.2018, Rs.1,50,000/- on 24.05.2018 and Rs.40,000/- on 25.05.2018. As per Part III of the said agreement for sale, the proposed date of completion was mentioned  as March 2019. But  the OPs  failed and neglected to complete the said construction of the residential complex within the stipulated time. In spite of repeated requests on the part of the complainants, the OP failed and neglected to handover the possession of the flat as well as to execute and register the deed of  conveyance in the name of  the complainants. Hence, the  application  praying for direction upon Ops to handover the possession of the  said flat to the complainants after taking the balance consideration and to execute and register the deed of conveyanc in  favour of the complainants or alternatively registration  be done through the machineries of this Commission, to handover the completion certificate along with compensation of  Rs.30,00,000/- and litigation cost of Rs.20,000/-.

Though the notice was served upon the OPs none appeared  before this Commission nor filed any written version to contest the case. Therefore, the case was proceeded  ex parte against the OPs.

We have gone through the entire material on record, particularly, the  evidence   on affidavit filed by the complainants.  Complainants have annexed the agreement for sale dated 23^rd May, 2018  entered by and  between the parties. From the agreement for sale, it appears to us that total consideration of the flat was Rs.18,00,000/- out of which the complainants  had paid Rs.5,00,000/-  on the date of execution   of the agreement which is reflected from the memo of consideration (Running Page 31 of the petition of complaint and internal Page 24  of the agreement for sale). Thereafter,  complainants  paid Rs.1,50,000/- on 24.05.2018 and Rs.40,000/- on 25.05.2018. In  support of their payment,  the money receipts have been annexed with the petition of complaint.  The complainants have stated in their petition, that they have also paid Rs.10,000/- on 19.05.2018 though  no money receipt has been annexed  to that effect. But, there is no doubt that that the complainants have paid Rs.5,00,000/-on the date of agreement and Rs.1,50,000/- on 24.05.2018 and Rs.40,000/- on 25.05.2018 i.e., the complainants  have paid Rs.6,90,000/- in total.

As per Part  III of  agreement for sale, the designated unit described in Part I of the Second Schedule shall be constructed and completed within March 2019 (internal  Page 24 of the agreement for sale).

As per Clause 11C of the agreement for sale (internal  page 18) is  reproduced as  under:

“In case the purchaser(s) complies/comply with and/or is/are ready and willing to comply with his/her/its/their obligations  hereunder and the vendor fails to construct the Designated Unit within the stipulated period, then the vendor shall be automatically allowed extension of 6 (six)  months and in case of failure on the part of the vendor to construct the Designated Unit even within such extended period then and only in such event, the vendor shall be liable to pay to the purchaser(s) a monthly sum calculated @ Rs.1/- per Sq. ft. per month of the carpet area of the  said unit for the period of delay beyond the extended grace period provided that the purchaser(s) shall be entitled  at any time after the expiration  of the extended grace period, to cancel    the contract placed hereunder by a notice in writing. In the event of such cancellation, the vendor shall refund the  entire earnest money until then paid by the purchaser(s) to the vendor with interest thereon Rs.1/- per Sq. ft. within 15 days of such cancellation.”

The parties entered into an agreement for sale on 23.05.2018. The complainants paid Rs.6,90/000/- in total till 25.05.2018.  Thereafter, the OPs did not inform the complainants anything regarding the further payment towards balance consideration. The OPs neither inform the complainants towards further payment nor inform the complainants intimating the date of completion of the project. In  course of argument,  Ld. Advocate for the complainants  has submitted that   they are in dark whether the project has been completed or not. As per  information, the project has not been  completed till date. Therefore, he prays for refund of amount along with interest.

Upon perusal  of the record and on submission of the Ld. Advocate for the complainants we are  in view that the complainants cannot wait for inordinate delay. The agreement for sale was executed in the year 2018 and the date of completion was mentioned   as March 2019. It is march 2023, the OPs have not bothered to file written version to show their bonafide  that the project has been completed and they have completed the  flat and they have offered   complainants to take  possession of the flat in question and they are ready to execute and register the deed of conveyance for the same. Due to unchallenged testimony,  we are nothing to disbelieve the documents filed by the complainants. The OPs not only silent  about their project they also did not offer for refund admitting their inability. Even, no reason has been cited by the  OPs that what prevented  them to act as per Agreement for Sale dated 23.05.2018. All their acts are nothing but deficiency in service and unfair trade practice on the part of the OPs  and as such, the complainants are entitled to get relief.  We  are in the view that for the finality of the litigation and to avoid further complications, complainants are entitled to get refund of the deposited amount paid by them. We think that complainants are also entitled  with interest in the form of compensation since they have  waited for a long for  the flat in question. Anyone wants to purchase a flat  and pays  as per agreement for sale with an expectation to get the   flat in time. But here,  nothing positive development has been noticed on the part of the OPs. Therefore, we think that the OPs are bound to pay the interest in the form of the compensation causing mental  harassment  and agony  which was suffered  by the complainants for a long  period and they had to file a complaint petition before this Commission for relief.

Accordingly, the complaint case succeeds.

Hence,

It is,

ORDERED

The complaint case being No. CC/541/2019 be and the same is allowed ex parte against the OPs with cost.

The OPs are directed to refund  Rs.6,90,000/- (Rupees Six lakh Ninety Thousand) only  to the complainants within 60 (sixty) days hereof along with interest  @ 8%  p.a. from  the date of each payment till its full realization.

The OPs are  also directed to pay litigation  cost of Rs.8,000/- (Rupees
Eight Thousand) only to the  complainants.

The  Complaint Case   being No. CC/541/2019 is, thus, disposed of, accordingly.