FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the complainants, in brief, is that on 21/02/2016, complainants applied for booking of a residential unit being Unit No. B-4-S-1 on the 2nd floor of Tower No. 4 in Block No.-B, measuring 412 sq. ft. (super built up area) and a piece and parcel of land measuring 2077.216 decimals along with one car parking space at Mouza- Uttar Gazipur, J.L. No. 50, P.S. Rajarhat under Chandpur Panchayet, North 24 Parganas, by paying Rs.50,000/- towards booking money vide cheque Nos. 447201 drawn on U.B.I (now PNB), Alipurduar Branch and accordingly OP issued money receipts against such payments and also issued the allotment letter dated 19/03/2016. Thereafter the complainant paid Rs.84,364/- vide cheque No. 447202 dated 20/03/2016 (drawn on U.B.I. Alipurduar Branch), Rs.84,364/vide cheque No.447203 dated 20/04/2016 Drawn on U.B.I. Alipurduar Branch), Rs.86,064 vide cheque No. 010202 dated 20/05/2016 (drawn on Axis Bank, Alipurduar Barnch) and accordingly 3 money receipts were issued by the OP in favour of the complainant. Thus the complainant paid Rs.3,04,792/- to the OP and an Agreement for Sale was executed between the parties on 23/08/2016.As per Article 9 of the said agreement the possession of the said flat ought have been handed over on 23/02/2019 to the complainant. When the complainant visited the project area, it was noticed that no work was started. Being shocked the complainant asked the OP about the fate of the project and a probable time for getting handover of the said flat but the OP kept on assuring the complainant. After waiting for 2.5 years, even after expiry of grace period of handing over the possession of the said unit the complainant sent a legal notice on 02/06/2021 requesting for refund of deposited amount along with interest. Said notice was duly served on the OP on 03/06/2021 but no reply was made by the OP till date. Finding no other alternative complainants has filed the instant consumer complaint for getting reliefs.
OP failed to file WV within stipulated period although the Vakalatnama is filed for the OP.
We have gone thoroughly evidence adduced by the complainant including documents on record and gave careful consideration to the arguments advanced by the Ld. Lawyers for the complainant.
It is admitted fact that on 21/02/2016 the complainant applied for booking of a residential unit being Unit No. B-4-S-1 on the 2nd floor of Tower No. 4 in Block No.-B, measuring 412 sq. ft. (super built up area) at Eco Homes with the right to park car at the demarcated open space at Mouza- Uttar Gazipur, J.L. No. 50, P.S. Kashipur, south 24 Parganas, Kolkata – 700135,by paying Rs.50,000/- towards booking money vide cheque Nos. 447201 drawn on U.B.I (now PNB), Alipurduar Branch and accordingly OP issued money receipts against such payments and also issued the Allotment Letter dated 19/03/2016. Facts also remain that thereafter the complainant paid Rs.84,364/- vide cheque No. 447202dated 20/03/2016 (drawn on U.B.I. Alipurduar Branch), Rs.84,364/-vide cheque No.447203dated 20/04/2016(drawn on U.B.I. Alipurduar Branch), Rs.86,064vide cheque No. 010202dated 20/05/2016 (drawn on Axis Bank, Alipurduar Barnch) and accordingly 3 money receipts were issued by the OP in favour of the complainant. Thus the complainant paid Rs.3,04,792/-out of total consideration amount of Rs.12,71,000/-to the OP and an Agreement for Sale was executed between the parties on 23/08/2016. Documents furnished by the complainants supported the averments made out in the complaint petition.
It has been argued by the Ld. Advocate for the complainants that in the Article 9(i) of the said Agreement for Saleit is clearly mentioned that the possession of the said flat will be delivered within 30 months from the effective dates. But after passing of 2.5 yearsand expiry of Grace Period no construction work has been started in the said projectand the OP has miserably failed to handover the possession of the said flat to the complainant. Photocopy of the Agreement for Sale support this contention. On perusal of the documents on record it is found that complainant sent a Legal Notice to the OP on02/06/2023 wherein the complainant made request to OP to refund the deposited sum i.e. Rs.3,04,792/- along with interest @ 18% from the date of the payment and also to pay a sum of Rs.1,00,000/- for mental harassment. It is noted that after receiving the Legal Notice OP did not bother to reply the same by revealing any clear and transparent information about the booked flat. We think it is deficiency in service on the part of the OP. The primary responsibility of a builder is to construct the flat and deliver the possession of the said flat to the purchaser within stipulated period as per Agreement for Sale for which the developer has received the money from the purchaser. If the builder does not deliver upon his contractual obligations this would constitute deficiency on the part of the developer in rendering service to the consumer. Moreover, the booking was made long back but the OP did not start the construction work of the said flat for which the prayer for refund. In our view, there is justification in such submission from the side of the complainants.
We have travelled through the documents on record and found that complainant booked a flat in the said residential project of the OP against Rs.3,04,792/-. No such document has been found in the record wherefrom it can be established that OP has started the construction work of the subject flat after receiving booking money. Thus, this gesture of the OP can be termed as unfair trade practice.
It is true that that no WV has been filed by the OP though several opportunities were given to them for filing WV but they have failed to file the same as such the allegation stated in the complaint petition remains unchallenged. Regarding this matter, we can safely state that on failure to file WV by the OPs tantamount to admission of the allegations stated in the complaint petition. Ld. Advocate for the complainant submitted that the complainant made several efforts to contact the OP regarding handing over the possession of the booked unit. But the OP failed to act according the terms and conditions constituted by themselves. Therefore, the complainant sent a Legal Notice dated 02/06/2022 to the OP asking for refund of the booking amount in respect of the said flat. It is observed by us that the OP showed bad gesture by not replying to the Legal Notice sent by the complainant and ignoring the Notice of this Commission.
In view of the above facts it is observed by us that, it is very unfortunate that OP has miserably failed to perform their responsibilities. It is not our expectation that the complainant by any means suffer from loss of money and time for the utter negligence on the part of the OPs. Under the above circumstances, unfair trade practice and the gross negligence and deficiency in service on the part of the OP is proved and the complainant is entitled to get relief/reliefs.
In the result, the consumer complaint is allowed on ex parte in part against the OP with a direction to them to refund the booking amount i.e. Rs.3,04,792/-with simple interest@ 9% p.a. from the respective dates of payment is made, together with litigation cost of Rs.10,000/-. This amount to be paid by the OP to the Complainant within 45 days from the date of this order, failing which, the amount shall attract interest @12% p.a. for the same period.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
