HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. The instant complaint under section 35 of the Consumer Protection Act, 2019 ( in short, ‘the Act’) is at the instance of the complainant Pradip Kumar Saha on the allegation  of deficiency of service on the part of the opposite parties in a dispute of housing construction.

2. In a capsulated form the complaint case is that the complainant submitted an application for purchase of Villa in Aqua Golf Villa, Phase  - I, Unit No. AGV 04 measuring 2500 built up area in Dag No. 1986, 1987, 1988, 1990, 2005, 2006, 2008, 2022, 2301, 2303, 2306, 2308, 2309 and 2311 comprised in an area measuring 341.791 sataks within Police Station Rajarhat, District 24 Parganas (North) within the ambit of Mouza  Chandpur Chapagachi, 1 No. Gram Panchayat, J.L. No. 48. The opposite party No. 1 confirmed such booking of the said flat. After confirmation the complainant made various payments to the opposite party No. 1. The complainant in total has paid Rs.83,76,764/- (Rupees eighty three lakh seventy six thousand seven hundred and sixty four only) to the opposite parties. The opposite party No. 1 issued money receipt in the name of the complainant in this regard. Both the parties executed an agreement for sale on 09.08.2016. Subsequently, the opposite party No. 1 sent a letter dated 10.06.2018 for cancellation of the agreement for sale dated 09.08.2016. The complainant failed to make the entire payment to the opposite party No. 1 though a substantial amount of money was paid to the opposite party No. 1. Instead of taking refund of the money paid by him as per the terms of the agreement for sale the complainant urged for shifting to an unit of lesser value which seemed believable to the petitioner at that moment. On receiving the said letter, the opposite party No. 1 confirmed the booking of AGV 22B by sending a letter dated 15.03.2021. The opposite party No. 1 had suffered losses in business and the complainant consequently realized that at that moment price calculated by the opposite party No. 1 for AGV 22B was beyond his capacity and he will not be able to pay for it. By letter dated 30.03.2021 the complainant sought cancellation of booking of AGV 22B. The opposite party No. 2 accepted such proposal of refunded amount received by him and consequently issued two cheques amounting to Rs.2,50,000/- and Rs.2,50,000/- towards refund of the amount paid by the complainant. The complainant tried to encash the said two cheques and the said two cheques were dishonoured upon presentation.

3. Further case of the complainant is that the complainant was liable to pay Rs.1,57,000/- towards full consideration money to the opposite party No. 1 for the unit booked by him. As per the agreement dated 09.08.2016 in case of cancellation by the purchaser i.e. the complainant herein, the opposite party No. 1 is liable to forfeit from the amount paid 10% of the total charges as liquidated damages.  As such, the opposite party No. 1 is only liable to deduct the amount of Rs.15,70,000/- from the total amount paid by and on behalf of the complainant.

4. Further case of the complainant is that as per the terms and conditions of the agreement dated 09.08.2016 the opposite party No. 1 is liable to refund to the complainant a sum of Rs.65,56,764/- (Rupees sixty five lakh fifty six thousand seven hundred and sixty four only).

5. Further case of the complainant is that the opposite parties has committed guilt of deficiency of service and grave unfair trade practice for which the complainant has filed this complaint with the prayer for the following reliefs :-

“i) Direct the opposite parties to act on the agreement for sale dated 09.08.2016 executed with the petitioner in connection with the villa in Aqua Golf Villa Phase I, Unit No. AGV 04 situated in Greencity IT and refund the amount of Rs.65,56,764/-;

ii) Direct the payment of Rs.40,000/- for business loss and compensation for non compliance with the terms and conditions of the agreement dated 09.08.2016;

iii) Such other order or orders as the Learned Commission may deem fit and proper.”

6. Notices were duly served upon the opposite parties but the opposite parties did not turn up and did not contest the case. As such, the case was heard ex parte against the opposite parties.

7. To prove the case the complainant filed his evidence on affidavit mentioning the implications of the documents as annexed with the complaint. There was no questions put to the complainant and hence no reply was needed to be given by the complainant and the evidence of the complainant remained uncontroverted and unchallenged and be taken to be true and believable. Therefore, the complainant has proved his case by filing evidence on affidavit and established the fact which goes in his favour and against the opposite parties.

8. Under this facts and circumstances and on careful perusal of the evidence and materials available on record I am of the view that there is absolutely no contrary material to counter or rebut the claim made by the complainant. So, the complainant is entitled to get the refund of the money amounting to Rs.65,56,764/- ( Rupees sixty five lakh fifty six thousand seven hundred and sixty four only).

9. Based on the above discussion the complaint case filed by the complainant is allowed ex parte. The opposite parties are directed to refund the amount of Rs.65,56,764/- ( Rupees sixty five lakh fifty six thousand seven hundred and sixty four only) to the complainant along with 9% interest per annum from the date of the receipt till the date of payment. The opposite parties shall pay a sum of Rs.10,000/- (Rupees ten thousand only) as costs towards litigation to the complainant. The order be complied with by the opposite parties within a period of 45 days from the date of receipt of this order.

10. The complaint case is thus disposed of accordingly.

11. If the opposite parties fail to comply with the direction made above within the period mentioned above, then the complainant it at liberty to get the order implemented with due course of law.

12. Let a plain copy of the judgment be given to the complainant free of cost. A copy be also served upon the opposite parties by Registered post / Speed post with A/D as early as possible.