The complaints of Ms. Manisha Bhattacharya and Mr. Debabrata Bhattacharya, both of BA-195, Flat no. A1, AA-1B, PS: New Town, Kolkata 700156 a petition u/S 35 of the Consumer Protection Act’ 2019 is at the instance of the Complainants against the Opposite parties on the allegation of deficiency of services in a consumer dispute of housing construction.

The facts of the complaint case as averred by the complainants in a capsulate form is that OPs are representing a Private Limited Company namely Evanie Infrastructure Pvt. Ltd. having registered office at Premises no 86, Golaghata, VIP Road, Jamuna Apartment, First floor, North 24 Parganas, West Bengal and Corporate office at 81 Golaghata, VIP Road, Radhakunj Apartment, First floor, Near Bika banquete, North 24 parganas, PS: Lake Town, Kolkata 700048. The Opposite party was scheduled to construct housing complex namely ‘Evanie Eco Nest’ situated at Mouza:Hudarait, JL no. 54, PS :Rajarhat, Chandpur gram panchayat, North 24 parganas comprising flat Units, car parking space, commercial spaces etc.

The complainant wanted to purchase a residential flat being attracted by the OP company advertisement and paid Rs 4, 72,933 /- by cheque nos. 297622 and 297623 both dated 09.01.2018 as booking amount against money receipts. The complainants further paid Rs 2,88,493/- by cheque no 297624 dated 29.01.2018 and Rs 3,05,000/- by cheque no 713042 dated 04.07.2018 against money receipts thereby totalling to Rs. 10,66,426/-. It was agreed that the complainants would purchase a 3 BHK flat having an area of 906 sq. ft. more or less on the third floor, tower EEN 1 with undivided proportionate share of land as per schedule mentioned in the petition. Further, the case of the complainant is that they did not find any physical progress about development of the said project and so the complainants again visited the office of the OP seeking refund of the said amount that was paid by them as advance for purchasing the flat and the refund was claimed by the complainants before the OP.

As no construction took place for a long time, complainants sent cancellation letter of the booking which was received by OPs on 01.09.2018. The OPs confirmed the same vide letter dated 04.01.2019 but failed to make refund of the amounts advanced, when all of their five cheques bounced due to ‘insufficient funds’ on repeated occasions of presentations. Two complaint cases vide no. 856 of 2019 and 1426 of 2019 were registered by complainant at the Court of CJM, Barasat. for such dishonour of cheques. Only one payment of Rs. 25,000/- has been received by complainant as averred, thereby working out a total dues of Rs. 10, 41,426/-.

Further the case of the complainant is that the OP did not take any step and no progress or development was made for the said project. The Opposite party did not take any steps to comply with the same. The OP neither refunded any amount to the complainant though they issued a letter to the complainant promising to refund by 25.11.2019. In this regard, all the requests and persuasions of the complainant went in vein. Hence, the complainant approached this Commission with a prayer for a relief inter-alia to pass an order to give direction upon the OP to handover the possession of the said 1 BHK suit property or refund of the principal amount of Rs.10, 41,426/- as they failed to provide service in favour of the complainant and to give direction upon the OP to pay compensation for the delay in handing over the flat and a compensation for harassment, mental agony and tension along with a litigation cost.

On behalf of the complainant, the contents of the petition of complaint supported by affidavit and the documents annexed therewith was treated as evidence through affidavit. The OP although filed evidence but did not participate during final argument nor filed BNA.

We have considered the submission made by the Ld. Advocate for the complainant and scrutinized the records and documents on record.

On perusal of the petition of complaint and the evidence on record, it transpires that the OP was going to construct a housing complex known as ‘Evanie Eco Nest’ situated at Mouza:Hudarait, JL no. 54, PS :Rajarhat, Chandpur gram panchayat, North 24 parganas comprising flats and other facilities. It also transpires from records and evidences on affidavits and annexures exhibited by complainant as per Sl (A) to (J) of the complaint petition that the Opposite parties issued money receipts to the complainants for booking of one 3 BHK flat having super built up area of 906 sq. ft. more or less at the proposed housing complex namely Evanie Econest. It also appears that at that time of the booking of the said flat the complainant paid Rs.10,66,426/- to the OP company as per various receipts issued vide by OPs as per complainant’s exhibit no A, A1, B and B1.

It also appears that the OP did not take any step for the development of the said project and neither they took any step to refund the booking money to the complainant. It is not in dispute that the OP has received the said amount of Rs. 10, 66,426/- and failed to construct the housing construction project, to develop the said building and to deliver the possession of the said suit property to the complainant. However, only an amount of Rs.25, 000/- was refunded by OP to complainant, which was not contested by either side. A cancellation letter of booking which was issued by complainants was acknowledged by OP company on 01.09.2018 (Exh C) and an a confirmation about refund was issued by the OP company to complainant vide their letter no OC/18/00574 dated 04.01.2019 (Exh E) and an acknowledged declaration by complainants about the said refunds vide declaration dated nil acknowledged on 28.02.2019(Exh F).

From the facts and circumstances and materials on record, more particularly relying upon the evidence on record, it is palpably clear that the OPs could not keep their promise and as such, they are deficient in rendering services towards a consumer.

In view of the above, the complainant is entitled to get relief.

       In 2016 CPJ 328 (NC) Hon’ble National Commission held thus :-

“Para 9. As far as the allottees in tower E & F are concerned, they have already sought refund as an alternative relief, along with compensation under several heads. Therefore, we have no hesitation in holding that in the facts and circumstances of the case the allottees in both the complaints are entitled to refund of the money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them. They are also entitled to appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the opposite party to deliver possession of the flats booked by them. In this regard, it is to be kept in mind that a person books a residential flat for the purpose of having a roof over his head, and in the hope that on completion of the construction within the time promised by the builder he will be able to live in a house of his own. Therefore, he is bound to feel disappointed and frustrated when the builder does not deliver upon its promise for years together”.

In another complaint case no. CC/780/2019 at Hon’ble SCDRC, West Bengal which is identical in it’s contents and merit and periodicity of flat booking and filing of the complaint against the same OP company during similar period on 27.09.2019, Rs. 4,30,000/- was paid by the complainant on 25.01.2016 as advance for booking for a 2 BHK flat (with part refund of 1,10,000/- on 12.07.2019) for a total consideration money of Rs.21,50,000/- and Car parking for Rs. 3,50,000/- to which the bench of Hon’ble Justice Mr. Manojit Mandal and Mrs.Samiksha Bhattacharya held in para 23, 24 & 25 of their Order dated 01.08.2022 that :

“That the complaint case No. CC 780 of 2019 be and the same is allowed ex parte against the Opposite parties.The Opposite parties are hereby directed to refund the amount of Rs.3, 20,000/- (Rupees three lakh and twenty thousand) only to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the date of each payment till the date on which the entire amount along with compensation is paid, in the form of compensation. The Opposite parties shall pay Rs. 10,000/- (Rupees ten thousand) only as cost of litigation. The payment in terms of this order shall be made within three months from this day”

In another complaint case no. CC/327/2019 at Hon’ble SCDRC, West Bengal which is identical in it’s contents and merit and periodicity of flat booking and filing of the complaint against the same OP company during similar period on 06.05.2019, Rs.1,55,000/- was paid by the complainant on 22.05.2017 as advance for booking of a 3 BHK flat and one car parking for a total consideration money of Rs.15,50,000/- to which the bench of Hon’ble Justice Mr. Manojit Mandal and Mrs.Samiksha Bhattacharya held in para 23, 24 & 25 of their Order dated 24.03.2022 that :

“That the Complaint case no. CC/327/2019 be and the same is allowed ex-  parte against the Opposite Party. The Opposite Party is hereby directed to refund the amount of Rs.1,55,000/-(Rupees one lakh fifty five thousand) to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the date of each payment till the date on which the entire amount along with compensation is paid in the form of compensation .

The Opposite party shall pay Rs.10, 000/- (Rupees ten thousand) as cost of litigation.

The payment in terms of this order shall be made within three months from this day.

If the Opposite party fails to comply with the direction made above within the period mentioned above, then the complainant is at liberty to get the order implemented with due course of law”

Again, in 2016(3) CPR 279 (NC) Hon’ble National Commission held thus –

“Para 10. Since the opposite party has failed to offer possession of the flat agreed to be sold to the complainants by the date stipulated in the Buyers Agreement in this regard and 5/6 years have already expired from the said committed date for delivery of possession. The complainants cannot be compelled to wait any more for the builder to deliver and they are entitled to seek refund of the money paid by them along with appropriate compensation.”

In view of the above decisions of the Hon’ble National Commission, we hold that the complainant is entitled to get refund of the money paid by him along with appropriate compensation in the form of interest for the financial loss and for mental agony and harassment suffered by him on account of the failure of the OP to deliver possession of the flat booked by him. We hold that there is deficiency in service on the part of the Opposite parties in the matter of construction of flat and delivery of possession. Also the financial implication in respect of the GST amount is to be bourne by the OPs as they have neither delivered the promised property nor completed the sale and as such complainants are not at all liable to bear the same. In result, the Complaint case succeeds.

      Hence, it is Ordered :-

That the complaint case no. CC/89/2021 be and the same is allowed on contest against the OPs. The OPs are jointly and severally directed to refund the amount of Rs.10, 41,426/- (Rupees Ten Lac Forty One Thousand Four Hundred and Twenty Six) only to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the date of each payment till the date on which the entire amount including compensation is paid.

The OP is also directed to pay Rs. 10,000/- (Rupees Ten Thousand) only to the complainant as cost of litigation.

The payment in terms of this order shall be made within two months from this day.

If the Opposite party fails to comply with the above said direction within the period mentioned above, then the complainant is at liberty to put the entire order into execution as per due course of law.

Let a plain copy of this Order be provided to both the parties free of cost as per CPR.

Dictated and Corrected by

[HON'BLE MR. Partha Kumar Basu]
MEMBER