MRS. FIROZA KHATOON, PRESIDENT
The case of the complainants in a nutshell is that sometimes in the month of February, 2017 they booked a flat to be constructed by the opposite party no.2 under the project name ‘Usashi King Town Project’ at new Town and paid Rs.1,50,000/- (Rupees one lakh fifty thousand) only on 26.02.2017. Thereafter on 18.03.2018 the complainants further paid a sum of Rs.1,93,956/- (Rupees one lakh ninety three thousand nine hundred fifty six) only to opposite party no.1 and on 16.07.2018 paid a sum of Rs.1,30,637/- (Rupees one lakh thirty thousand six hundred thirty seven) only to opposite party no.2 as consideration amount of the said flat. After such payment the complainant no.1 several times visited the office of opposite party no.2 and the construction site but found that no construction work has been commenced by opposite party no.2 for constructing the proposed building. In the month of July/August, 2018 the official of opposite party no.2 suggested that opposite party no.1 is constructing a project namely ‘Eco Nest’ at Golaghat on their own land and if the complainant desire a flat can be booked in the name of the complainants and opposite party no.2 would transfer the amount deposited by the complainants with opposite party no.1.
The complainant no.1 agreed to the proposal of opposite party no.2. On 16.08.2018 , the complainant paid a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand) only by two cheques to opposite party no.1 under receipt voucher dated 16.08.2018 issued by opposite party no.1 (Ext-1 & 1/1). Thereafter on 17.08.2018 the opposite party no.2 transferred a sum of Rs.3,54,591/- (Rupees three lakh fifty four thousand five hundred ninety one) only to opposite party no.1. On receiving the amount opposite party no.1 issued a voucher dated 17.08.2018 in favour of the complainant (Ext-1/2). According to the complainants, thereafter opposite party no.1 executed an Agreement for Sale dated 19.08.2018 in favour of the complainant (Ext-2). It is further stated that it was mentioned in the agreement for sale that the opposite party no.1 would construct the building on the land owned by opposite party no.2 and the name of the project would be ‘Evanie Eco Nest’.
The complainants entered into an Agreement for Sale dated 19.08.2018 with opposite party no.1 to purchase a flat measuring about 535.63 square feet along with car parking space at a consideration of Rs.16,81,949/- (Rupees sixteen lakh eighty one thousand nine hundred forty nine) only and for car parking Rs.2,00,000/- (Rupees two lakh) only. The payment schedule was fixed depending upon progress of construction as described in schedule ‘E’ of the agreement for sale. Thereafter, time and again the complainants visited the said project site but till date the work of construction has not been started. The complainants came to know from the office of opposite party no.1 that the application for registration under HIRA for the project has been rejected. The complainants have paid a sum of Rs.5,04,591/- (Rupees five lakh four thousand five hundred ninety one) only in total to opposite party no.1 which they are entitled to get refund. So, the complainants vide their letter dated 20.04.2021 demanded refund of the entire paid amount from opposite party no.1. The said letter was received by the office of opposite party no.1 on 20.04.2021 with copy of money receipts but till date the opposite party no.1 has not paid any heed to it. The opposite parties are enjoying the money of the complainants on making misrepresentation of the alleged project which tantamount to deficiency in service and unfair trade practice. Hence, this case.
In spite of service of notices both the opposite parties have deliberately declined to appear in the case and contest the same.
So, the case is heard ex-parte.
Points for decision
- Are the complainants consumers in terms of the Consumer Protection Act, 2019 ?
- Are the complainants entitled to get relief as prayed for ?
Decision with reasons
In order to prove the case the complainant no.1 submitted evidence on affidavit for himself and on behalf of complainant no.2. The documents submitted in evidence are marked as follows :-
- Original money receipt dated 16.08.2018 of opposite party no.1 (Ext-1).
- Original money receipt dated16.08.2018 of opposite party no.1 (Ext-1/1).
- Original money receipt dated17.08.2018 of opposite party no.1 (Ext-1/2).
- Original agreement for sale dated 19.08.2018 (Ext-2).
- Notice dated 20.04.2021 of the complainant (Ext-3).
The complainants have proved the case by their unchallenged and un-rebutted testimony and above referred documentary evidence. The complainants categorically prayed for refund of money paid by them vide Ext-1, Ext-1/1 and Ext-1/2.
According to the complainants they had paid in total a sum of Rs.5,04,591/- (Rupees five lakh four thousand five hundred ninety one) only to the opposite party no.1.
The complainants have been able to prove that the opposite party no.1 have not started the work of construction of the project even after booking of flat and accepting advance from the proposed buyer. As per agreement, the project was to be completed within 40 months from the date of execution of the agreement for sale dated 19.08.2018. Moreover, the opposite party no.1 instead of returning the advance amount to the complainants, enjoying the same without paying any heed to the notice dated 20.04.2021.
Such act on the part of opposite party no.1 clearly suggest that they are carrying unfair trade practice and liable for deficiency in service.
Therefore, both the points are decided in favour of the complainants.
So, the case succeeds.
Hence, it is
O R D E R E D
that the complaint case be and the same is allowed ex-parte against both the opposite parties without cost.
the opposite party no.1 is directed to pay a sum of Rs.5,04,591/- (Rupees five lakhs four thousand five hundred ninety one) only along with simple interest @ 12% per annum on and from 17.08.2018 to the complainants within one month from the date hereof in default to pay simple interest @ 12% per annum till payment.
the opposites parties are also directed to pay a sum of Rs.2,00,000/- (Rupees two lakhs) only as compensation to the complainants within one month from the date hereof failing which shall be liable to pay @ 12 % simple interest per annum till payment.
the opposite parties are directed to pay a sum of Rs.20,000/- (Rupees twenty thousand) only as litigation cost to the complainants within 30 days from the date hereof failing which shall be liable to pay @ 12 % simple interest on the litigation amount till payment.
Dictated and corrected by me
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President
