SHRI REYAZUDDIN KHAN,MEMBER
This is an application U/s.35 of the Consumer Protection Act, 2019 is at the instance of an intending purchaser against Evanie Infrastructure Private Limited on the allegation of deficiency of service in a dispute of flat construction.
The complainant was allured by the advertisement of a residential project,accordingly, he made an application being no.EEN002057 for booking of one residential 2 BHK flat having a total covered area of 535 sq.ft consisting of 2 Bed Rooms,one leaving-cum Dining space with Kitchen,1 Toilet and one open Terrace and one W.C on 3rd floor,along one medium saze car parking space measuring about 134.5 sq.ft in the ground floor,South West of the proposed building in the Housing complex named “Evani Infrastructure Eco Nest”situated at Mouza Hudarait P.O-Akandakeshori ,P.S-Rajarhat within the limits of Chandpur Gram Panchayat,District North 24 parganas,Kolkata.The total consideration amount Rs,18,18,535 (Rupees Eighteen Lakhs Eighteen Thousand Five Hundred Thirty Five)only which included BSP of Rs,2,555-plus one open car parking space of Rs,2,50,000/ and for amenities charges of Rs,2,00,000 totaling Rs,22,68,535/.
The complainants stated that out of such consideration amount the complainants have paid Rs,4,94,621/ (Rupees Four Lakh Ninety Four thousand Six hundred Twenty one)only.through different cheques, amounts and dates in favour of Evanie Infrastucture Pvt.Ltd.A development agreement for sale was dully executed with the OP1 on 23.06.2018.The complainants further stated that as per development agreement the propose flat to be handed over within 40 months from the date of signing of the said agreement i.e,23.06.2018.But the OPs completely failed even to start the construction of the said flat after lapse of the stipulated period.At the time of agreement the OPs have agreed to provide with a copy sanction plan and other documents concerning said projects.The complainants have issued letter to the OPs on 17.11.2020 inter alia and asked about their failure to comply with their contractual obligation of handing over possession within stipulated period but OPs not responded the same.So in this backdrop the complainants have called upon the OPs to refund the booking amount of Rs,4,94,621/through a letter dated 14.11.2020.Despite receipt of legal notices.the OPs failed to redress the grievances of the complainant.That apart the gross deficiency of service and the they are guilty of unfair trade practice. Finding no other way the complainanst have approached the Commission for justice with relief as detailed mentioned in the complaint petition.
On perusal of records, it appears from order no.5 dated 06.11.2023, OPs failed to file their W.V in the statutory period and as such the case runs ex-parte against the OPs.
Points for Determination
1) Whether the OPs are deficient in rendering proper service to the Complainants?
2) Whether the OPs have indulged in unfair trade practice
3) Whether the complainants are entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 2 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion. We have travelled over the documents placed on record. The complainants have filed his Evidence supported by affidavit. The case has been proceeded ex-parte against OPs .The OPs have not filed the E-Chief. The fact of the case in brief is that the complainants booked a 2 BHK flat having total area of 535.60 sq.ft flat in the housing complex named “Evanie Infrastructure Econest” along with one medium size car parking space measuring about 134.5 sq.ft.in the ground floor, situated at Mouza Hudarait P.O-Akandakeshori ,P.S-Rajarhat within the limits of Chandpur Gram Panchayat,District North 24 parganas,Kolkata.The complainants have paid Rs,4,94,621/ (Rupees Four Lakh Ninety Four thousand Six hundred Twenty one)only.through different cheques, amounts and dates in favour of Evanie Infrastucture Pvt.Ltd. out of total consideration of Rs,22,68,535/ through a development agreement for sale with the OP1 on 23.06.2018.It was specifically mentioned that the OPs were supposed to handover the possession of the subject flat within a period of 40 (Forty) months from the date of execution of the sale Agreement ie. On 23.06.2018.The OPs neglected to comply the contractual obligations and deprived the complainants from getting possession of the flat in question.There were no progress of construction at the project site.The complainants were compelled to cancel the booking and requested the OPs to refund the paid money with interest.
Thus,the complainants are consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act.
On evaluation of materials on record it is quite evident that the complainants being the “Consumer” hired the services of the OPs for construction of flat and OPs have failed to construct the project and thereby deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
In this regard a Judgement of the Hon’ble Delhi State Consumer Disputes Redressal Commission under reference 2022(2) CPR 137(Del.) in the matter Mrs.Jasveen Kaur v. Parsvnath Developers Ltd., Complaint Case No.1618 of 2016 decided on 05.05.2022 is also found relevant to the present context. The Hon’ble SCDRC has been pleased to observe in Para 34 of the said Judgement “ A failure of the Developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service.”
Keeping in view of the above cited Judgments and based on the fact and circumstances of the present case,we are of the considered opinion that the Complainants have established the case against the OPs. OPs have miserably failed to perform their responsibilities. It is not our expectation that the complainants by any means suffer from loss of money and time for the negligence on the part of the OPs..
Hence,
Ordered
That the complaint case be and the same is allowed on ex-parte against OPs by following directions.
i).The OPs are directed jointly or severally to refund the booking amount of Rs,4,94,621/(Rupees Four Lakh Ninety Four thousand Six hundred Twenty one)only. along with compensation in the form of simple interest @9% P.A in favour of the complainants from the date of conciliation of Agreement for sale( i.e,23.06.2018) till its realization for harassement and mental agony.
ii) The OPs are directed jointly or severally to make payment a sum of Rs,10,000/ as cost of litigation in favour of the complainants
Complainants put the order into execution, if the OPs transgresses to comply the order according to Consumer Protection Act, 2019 after the expiry of 60 days.
