Mr. Ayan Sinha, Member

This is a complaint U/S 35 of the CP Act 2019 made by the complainants alleging deficiency of service and unfair trade practice on the part of the OPs and accordingly praying for a direction upon the OPs to refund the advance amount of Rs.5,00,000/- along with interest @ 18% from the date of booking, to pay financial loss of Rs 3,00,000 due to payment of EMI, compensation @ 24% interest on Rs. 5,00,000 for obtaining loan and delay in delivery of possession and Rs. 50,000 as litigation cost.

FACTS IN BRIEF

The complainants were in dire need of a residential house for his family and for his old parents and children and allured by the advertisement of OP No 1 in 2017 booked a bungalow no. D-53 measuring 1.5 Kattah in “Dharitri Bliss Ville” situated at Hudrait – Mouza, P.O – Bagu, PS – Rajarhat, New Town Action Area 3 , New Town , West Bengal for a cost of Rs. 25,00,000 against

which they paid Rs. 10,000 and Rs. 4,90,000 through cheque on 03./12/2017 and 10/12/20217 respectively which is 20% of the flat value. After the said payment, the complainants were allotted the said bungalow by the OPs with a promise that the agreement for sale would be executed within 15 days and the possession of the said property would be handed over within 15 months from the date of booking. As stated in the complaint petition the OPs sent one sided and unfair agreement since the same did not match with the brochure details against which the OP No 1 informed that the same would be rectified but they did not rectify the same. The complainants sent legal notice and requested through email for refund of money as there was no construction started to which the OPs did not respond. The complainant no 1 visited the office of OP No 1 to which the later insisted to change the booking of bungalow No D-53 to C-372 in the same project and subsequently promised agreement for sale will be executed within 10 days and possession of this property will be handed over within 6 months. But no construction was started for this newly allotted property also and on the contrary, OPs started pressurizing the complainants for payment by cash instead of funding through bank loan. Thereafter, the complainants surprisingly received in e-mail from the OPs that the new allotted property i.e. C-372 is not available for buyers who are availing bank loan and as such the complainants were forced to transfer the booking again to allotment i.e. Plot No D-3 in the same project but the construction for the same also has neither started nor the possession has been handed over to the complainants till date.

Thus having suffered mental harassment and agony, complainants filed this case alleging deficiency of services and unfair trade practice on the part of the OPs.

On perusal of the record it appears that in spite of services of notices upon all the OPs, the OPs did not take any steps nor filed Written Version and finally the case proceeded ex-parte against all the OPs.

Complainants in order to prove their case, have filed evidence by way of affidavit and also annexed the copies of receipts of payments issued by OP No. 1. Brief Notes of Argument has also been filed by the complainants along with certain original documents in support of their contention.

Points for Determination

(i)   Whether the instant complaint is maintainable?

(ii)  Whether there was any deficiency of service and unfair trade practice on the part of OPs?

(iii) Whether the complainants are entitled to the reliefs as prayed for?

Decision with Reasons

All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

In support of complainants claim that initially a memorandum of understanding/ agreement was entered into between the parties in the year 2017 after the complainants paid Rs.10,000/- and Rs. 4,90,000/- vide money receipt no E1809 and E1877 on 03/12/2017 and 10/12/2017 respectively in respect of sale of a residential bungalow, containing 1.5 kattah, Bungalow No. D-53 (Bliss Ville). The original money receipt issued by OP No 1 have been filed by the complainant also during the course of argument. It further appears from the documents in record that an allotment letter was also issued by OP No 1 stating clearly that 1.5 Kattah Bungalow No. D – 53 situated at Hudrait – Mouza, Newtown Action Area 3, New Town, West Bengal – 700 135 has been allotted to the complainant where from it appears that the OPs agreed to sell the above said property including amenities for a consideration of Rs.25.00.000/- against which the complainants paid Rs.5,00,000/- which is 20 % of the consideration amount. Complainants have also filed certain copies of Email communications they had with the OPs. On careful scrutiny of the said communications, it is observed that complainants have already intimated vide Email dated 07/07/2018 that the agreement for sale sent by the OPs were unsatisfactory as it does not match with the brochure of OPs to which OP No. 1 admitted vide Email dated 20/07/2018 and assured to send the rectified copy of agreement for sale.  On perusal of the Email communication it is also observed, complainant followed up with the OPs several times through Email to which the OPs offered some other plot Bungalow No. C-372 which was again declined by the OP stating the reasons that C-372 will not be allotted for buyers who are availing bank loans and for which the allotment was again changed to Bungalow No. D- 53 measuring of 2 kathas. But the same plot also did not match with brochure of OP. Moreover, from the papers supplied by the OP, it was found that the land was not free from encumbrances. Before this commission also no contrary materials is forthcoming in this regard. On further scrutiny of the Email communication dated 13/08/2019, it is observed that complainants wrote to OP that the construction would be completed within 36- 42 months to which OP remained silent and also there is no forthcoming that any such construction has been done.  On the other hand, complainants were harassed with repeated changes of plots without handing over the possession thereof as per allotment nor making any construction thereon. 

It is now settled principle of law that the purchaser cannot be made to wait indefinitely for the possession of flat or the bungalow allotted to him as agreed between the parties.

In the instant case complainants have paid Rs.5,00,000/- and the OPs have neither started the construction and handed over the possession nor have refunded the booking money to the complainants. 

 So in our view, since the allegations remained unchallenged and unrebutted, there is certainly and unfair trade practice and deficiency of service on part of the OPs and the complainants are entitled to the reliefs.

         Complainants have also prayed for a financial loss of Rs.3,00,000/-  as they had to pay EMI for loan availed on Rs.5,00,000/- and interest @ 24 % on Rs.5,00,000/- from 03/12/2017 and also prayed for payment of Rs.50,000/- by the OPs as litigation cost which in our view is exorbitant. It is also true that the complainants have deposited Rs.5,00,000/- of their hard earned money with the dream of having a bungalow which the OPs have failed to provide the same from 2017 for which they might have to spend more money due to present market value if they are opting for a new accommodation in the year 2022. 

    In our view, it would be just and appropriate, if we direct the OPs to pay Rs.5,00,000/- which is the booking amount along with Rs.1,00,000/- as compensation failing which, to pay interest @ 10% to be paid by the OPs from the date of deposits as par money receipts issued by the OPs along with litigation cost of Rs.10,000/-.

    Accordingly, the complaint succeeds.

Hence,                    

ORDERED

This instant case be and the same is allowed ex parte against the OPs.

  OPs are directed to pay Rs.5,00,000/- along with compensation of Rs.1,00,000/- to the complainants.

  OPs are also directed to pay Rs.10,000/- to the complainants towards cost of litigation.

All the OPs are jointly and severally liable to pay the said amount.

Ops to make payment of the said awarded amount with 45 days from the date of this order failing which the entire awarded amount shall carry interest @ 10% p.a. until realization.

If the instant order is not complied with by the OPs as directed, the complainants are at liberty to proceed in accordance with law.