SAMIKSHA BHATTACHARYA,  MEMBER 

The instant case has been filed u/s 47 of CP Act, 2019 against the OPs alleging in deficiency in service.

The facts of the case in brief are that OP published an advertisement for sale of the flats which were  to be constructed by them.  Seeing an advertisement of the OP, the complainant had approached the OP for purchasing a flat in “Fort Oasis” Tower-III situated at Premises No. 38 and 38/1 Panditiya Road, Kolkata-29.  The OP has accepted the proposal of the complainant for purchasing a flat in that multi-storied building. After verifying all the documents and the structure of the said building complex complainant became satisfied and booked a flat in Fort Oasis Tower-3 situated at Premises No. 38 and 38/1 Panditiya Road, Kolkata-29, Unit No. 031002 on the 10^th floor of Tower-III having a super built up area of approximately 3888 sq. ft. and two covered car parking space(s) in the basement.  Accordingly, an agreement for sale was entered by  and between the parties on 14.09.2017.

The complainant has  further stated that the consideration amount for the flat was fixed at Rs.3,85,24,800/- and the complainant has already paid Rs.1,73,00,000/- (a sum of Rs.1,71,27,000/- after deducting the TDS) by way of three cheques. The OP No. 1 has  duly received the amount. The complaiant has tried to make further payments but the OPs  refused to take any further payment from the complainant. The complainant   has asked the  OPs to give  the details of the bank account so that the complainant  can pay the further payment but the OPs did not provide any bank details to the complaint, rather they  have told that they  would inform the complainant when  further payment  would be required.  The complainant has noticed that the OPs have started ignoring the complainant. Moreover, there was no proper construction and therefore, the complainant has requested  the OPs to construct said flat properly as  per the agreement. But the OPs did  not pay any  heed. The OPs also have not informed the date of possession of the flat in question though the complainant has enquired for the same several times. As per agreement it was  mentioned that the  building would be completed on or before 30^th June, 2020,  although the said period was already  over, the OPs have not handed over the possession of the said flat to the complainant till date. 

Finding no other alternative, the complainant has sent a legal notice dated 16.03.2022 requesting the OPs to give him  immediate possession of  his booked flat by taking the remaining  consideration or to refund the consideration amount given to OPs. But the OPs did not send any reply. Till date, OP  No. 1 has not cancelled the  agreement for sale also.  The complainant has further stated that the activities  of the OPs have caused irreparable loss, harassment, humiliation and moneraty loss to the complainant and his rights and interest are also highly jeopardized by the deficiency in service on the   part of the OPs. Hence, the application praying for direction upon OPs to execute a registered sale deed and also to give possession of the  aforesaid flat being  Unit No. 031002 on 10^th floor of Tower-III, measuring super built up area 3888 sq. ft. approximately and two cover car parking space   in the basement at “Fort Oasis” Tower-III Building Complex  situated at Premises No. 38 and 38/1 Panditiya Road, Kolkata 700029 to the complainant upon receipt of remaining consideration, alternatively, to pass an order directing the OPs to return the consideration amount paid by complainant till date with interest along with compensation of Rs.50,00,000/- and litigation cost of Rs.10,00,000/-.

Though the notices were served  upon OPs none appeared  on behalf of the OPs to contest the case and accordingly, the case was proceeded ex parte against the OPs.

In course of argument, Ld.  Counsel for the complainant has showed all the money receipts in support of payment by the complainant towards booking of the flat in question.  It appears from the record that the complainant has paid  Rs.25,00,000/-  on 10.02.2016,  Rs.25,00,000/- on 11.02.2016  and Rs.53,00,000/- on 15.02.2016, Rs.20,00,000/- on 16.02.2016, Rs.48,27,000/- on  16.03.2016 and  all amount was paid through RTGS. The complainant has annexed the bank statement towards  his payment. He has also filed CBDT E- Receipt for e-Tax Payment.

Upon hearing the Ld. Counsel for the complainant and on perusal  of entire materials on record there is no dispute that complainant has entered into an agreement for sale on 14.09.2017 with the OPs to purchase a unit being No. 031002 on the 10^th floor of the Tower No. III at the premises known as ‘Fort Oasis’  described in the first schedule of the agreement  for sale measuring 3888 sq. ft. along with two covered car parking space at basement for a total consideration of Rs. 3,85,24,800/- . In the Part-I  4^th Schedule of the agreement for sale (internal page No. 22 of the agreement for  sale) it is mentioned that out of Rs. 3,85,24,800/-, the complainant/purchaser has already paid Rs.1,73,00,000/-  at the time of making an application for allotment of  the said unit to the seller. It is also mentioned that the  balanced amount would be paid at different stage which was  mentioned in part-I of the 4^th Schedule. Thereafter, the OPs have not demanded any amount from the complainant for the reason best known to them. Even, upon receipt of notice issued by this Commission, the OPs did not appear nor filed any written version to contest the case. Non-filing of written version, amounts to admission of allegation as stated in the petition of complaint as mentioned in the petition of complaint.

Due to unchallenged testimony, we have nothing to disbelieved the  documents filed  by the complainant.

Though the receipts were issued by the OPs to the tune of  Rs.1,71,27,000/-, after deducting the service charge,  actually the complainant has paid Rs.1,73,00,000/- including the service tax which is mentioned in the part-I of the 4^th schedule of Agreement for Sale dated 14.09.2017. Since the OPs have failed to provide any service to the complainant, the amount towards service charge is  to be refunded by the OPs to the complainant along with the paid amount by the complainant towards purchasing the flat in  question. The complainant is entitled to get the paid amount of Rs.1,73,00,000/-. The complainant has paid the amount with a hope to get the  flat in question, but ultimately his dream  never comes true for the reasons best known to OPs. 

In course of argument, Ld. Advocate for the complainant has fairly submitted before this Commission that  the complainant is not aware of the present   status of the project and in such situation, he is pressing for allowing the alternative prayer towards refund of amount.

The complainant  has booked the flat in question with a hope to get the  flat in time. Time is the essence of any contract. The date of completion of the flat  has been mentioned  in the Clause No. 5.5  and Clause No. 5.6  (Internal Page No. 9 of the Agreement for Sale) which are reproduced as under:

“5.5 Unless prevented by circumstances beyond the control of the Seller, the said Building would be completed on or before   30^th Jne, 2020 (hereinafter  referred to as the COMPLETION DATE).

5.6 The said Completion  Date shall be stand extended by the period for which the Seller become, unable to fulfil their obligations, to complete the said building within a stipulated time, for the reason beyond their control”.

The OPs have failed to show any force majeure clause which prompted them to deliver the flat within the stipulated period. The OPs have not  given any information about the status of the project nor demanded any amount as per stage wise completion of the project mentioned in the Part-I of 4^th Schedule  after receiving a lumpsum amount of Rs.1,73,00,000/- in the month of February 2016 and March 2016. The OPs remained silent about the project. It clearly shows the deficiency in service on  the part of the OPs. The complainant cannot wait for an inordinate delay. Moreover, no reason has been shown by the OPs what prompted them  not to contact with the complainant.  Since the complainant is not willing to take the possession of the flat in question for the acts of the OPs we are of considered view that instead of passing the order towards execution and registration of the flat in question, we do pass the order towards refund to avoid further litigation.  The complainant is also entitled to get interest  in the form of compensation since there is deficiency in service on the part of the OPs and a limpsum amount  of the complainant has been retained by the OPs.

In view of above, the complainant has substantiated his case and as such he is entitled to get relief .

Hence,

                      it is,

O R D E R E D

The CC  case being No.   CC /102/2022 is allowed ex parte.

The OPs are directed to refund Rs.1,73,00,000/-  (Rupees one crore seventy three lakh) only along with interest @ 9% p.a. from the date of each payment  till its full realization  in the form of compensation within 30 (thirty) days hereof.

The OPs are also  directed to pay litigation cost of Rs.15,000/- (Rupees fifteen thousand) only  to the complainant within  aforesaid stipulated period.

If the OPs fail to pay  the aforesaid  amount within  the stipulated period, the complainant is at liberty to put the decree into execution.

The complaint case is, thus, disposed of,  accordingly.