Presented by:
Minakshi Chakraborty, Presiding Member
BRIEF FACTS OF THE CASE :
This instant case has been filed by the complainants under section 35 of the Consumer Protection Act 2019. As per submission of the complainants, all the OPs are service providers in respect of a flat booked/purchased by the complainants.
The OP company launched a residential and commercial housing project namely “VIVAANTA KOLKATA” near NH-6,KOLKATA and invited intending purchasers by lucrative offers regarding various kinds of facilities and amenities. The complainants being interested approached the OPs for purchasing a residential flat at the said project and have booked a residential flat in BLOK-B, Flat No. 502 measuring about 915sq-ft including super built up area with certain common facilities and the total consideration amount fixed by and between the parties was Rs.1316625/. The complainants booked the flat on 13/04/2013 and paid an amount of Rs.1166625 by way of cheque and further payment was made on 11/05/13 amounting to Rs.150000/by way of cheque. The OPs duly acknowledged the same and issued two separate money receipts. As per submission of the complainants the OPs assured them that no agreement for sale was required as the brochure and money receipts were enough to prove that the complainants have booked a flat. According to the submission of the complainants the OPs promised to handover the physical vacant possession of the said flat within 3 years from the date of booking.
On several occasions the complainants visited the site but found the project incomplete and was kept abandoned but OPs assured that project will start soon. According to the complainants, as there was no progress in the project work they were disinterested in the said project and requested the OPs to make refund of the consideration amount on 03/02/16, the OPs agreed to refund the said consideration amount. Over the issue several correspondences were made between the complainants and O.ps. but the O.ps. did not refund the said consideration amount paid by the complainants for which the complainants are suffering tremendous mental agony and pain. The complainants sent an Advocate’s letter dated 19/03/2019 to the O.ps. and requested them to refund the consideration amount but in vain.
Finding no other alternatives the complainants constrained to file one C.C. case being No.457/2019 before the Hon’ble S.C.D.R.C. against the O.ps. but subsequently they have withdrawn the said case and liberty was given to them to file it afresh before the appropriate Forum. These complainants file this instant case against the O.ps. with a prayer either to handover a peaceful vacant possession of the schedule flat, possession letter/Completion certificate, execution and register the Deed of Conveyance in favour of the complainants, to provide all amenities alongwith compensation of Rs.8,00,000/- for mental pain, suffering, agony with additional expenses of Rs.1,00,000/- on account of escalation of cost of registration and litigation cost to the tune of Rs.3,00,000/-. The complainants in alternative prayed for direction upon the O.ps. to refund the entire consideration amount alongwith 18% interest per annum with a further direction to pay the interest from respective date of receipt of amounts from the complainants till realization alongwith compensation and litigation cost to the tune of Rs.8,00,000/- and Rs.3,00,000/- respectively.
DEFENCE CASE:
In spite of receiving notice the opposite party did not appeared for which the case was running ex parte against all the OPs.
Evidence on record
The complainant filed evidence on affidavit and written notes of argument which are nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
Argument highlighted by the ld. Lawyers of the parties
Complainant has filed separate written notes of argument. As per BNA., evidence on affidavit and written notes of argument shall have to be taken into consideration for disposal of the case.
Heard argument of the complainant side at length. In course of argument ld. Lawyer for the complainant has given emphasis on evidence and documents produced by them.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
Issue no.1:
The pertinent question herein lies whether the petitioner is a consumer?
In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2(7) of the Consumer Protection Act, 2019.The point is thus answered in the affirmative.
Issue no.2:
Both the complainants and the opposite parties are residents/having their office addresses within the district of Howrah and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.
Issue nos. 3 & 4:
Both the issues are taken up simultaneously for the sake of convenience.
Specific case of the petitioners are that the petitioners paid total consideration amount of Rs.13,16,625/- into two installments to the O.ps. for purchasing the flat in question. Photocopies of receipts issued by G.C.J. Infrastructure Pvt. Ltd. have been filed by the complainants for perusal. Complainants side have also filed the brochure as annexure “A” wherefrom it is evident that the flat in question was in existence at the time of payment of consideration money, though no Sale Deed or Agreement for Sale has been filed by the complainants. As per submission of the complainants, the O.ps. assured them that no Agreement for Sale was required as the brochure and money receipts were enough and sufficient to prove that the complainants have booked the flat in question in the project. The O.ps. side have no appeared but when the complainants initially filed the complaint case before the Hon’ble State Consumer Dispute Redressal Commission, W.B. these O.ps. have filed their written objection which is annexed by the complainants in this instant C.C. case being annexure No.A-7 wherefrom it is evident that in paragraph no.12 of their said written objection by the O.ps. they have categorically stated that “due to various reasons the construction of the said project could not be executed by the O.ps. and there was no fault on the O.ps.” In paragraph No.14 of their written objection filed before Hon’ble S.C.D.R.C. these O.ps. stated that “due to various reasons they could not complete the said construction and they were compelled to shut down the said project for which the O.ps. have no fault. The O.ps. initiated to refund the amount to the various intending purchaser”.
So, from the statement made by the O.ps. in their written objection before the Hon’ble S.C.D.R.C. it is crystal clear that the O.ps. have received the amounts of Rs.13,16,625/- from the complainants on account of selling of one self contained flat but they have not handed over the same to the complainants as the project has been shut down due to various reasons which are best known to the O.ps. The O.ps. submitted in their written objection that they have initiative to refund the amounts to various purchasers but no single scrap of papers have been submitted by the O.ps. to show that they have ever shown their willingness to refund the said consideration amounts that has been paid by the complainants in the year 2013. These acts and conducts of the O.ps. clearly depicting the gross negligence and deficiency in service by the O.ps. and for these acts of the O.ps. the complainants are entitled to get the relief/reliefs as claimed for.
Both the issues are disposed of.
Hence,
O R D E R E D
That the Complaint Case No.117 of 2022 be and the same is decreed ex-parte against the O.ps.
The complainants do get refund of Rs.13,16,625/- aliongwith interest to the tune of @9% per annum from the date of institution of this case till realization from the O.ps. within 45 days from date.
The complainants do further get Rs.30,000/- for mental harassment and agony and Rs.20,000/- towards litigation cost from the O.ps. within 45 days from date.
In case, the O.ps. do not comply the award passed by this Commission within stipulated period, the complainants are given liberty to take recourse of law.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website The word file is drafted and corrected by me.
(Minakshi Chakraborty)
Member
D.C.D.R.C., Howrah
