FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the complainants, in brief, is that being convinced by the OPs 3 & 4 the Complainants executed an Agreement for Sale with the OPs 1 & 2 for a residential unit at “Eco Homes”, Vedic Village, Rajarhat, P.S. Rajarhat, Kolkata – 700135, at Mouza – Uttar Gazipur, J.L. No. 50, Police Station – Rajarhat, District – Sub-Registry office at A.D.S.R. Bidhannagar (Salt Lake), District – 24 Parganas (North), west Bengal, comprised in Block No. HE being unit No.HE-T-14 on the 3rd floor by paying Rs.2,83,500/- vide Cheque No. 983332 dated 10/08/2015 for Rs.20,000/-, drawn on United Bank of India, Cheuqe No. 983333 dated 11/08/2015 for Rs.83,500/-, drawn on United Bank of India, Cheque No. 983334 dated 08/09/2015 for Rs.55,000/- drawn on United Bank of India and Cheque No.999983 dated 08/09/2015 for Rs.1,25,000/- drawn on Indian Bank. Such payments are duly received by the OPs 1 & 2. OPs 1 & 2 endeavors to complete the construction of the aforesaid Unit and will hand over the possession thereof to the Complainant within 30 months from the effective date. After receiving the abovementioned amount OPs 1 & 2 did not signed or completed the execution of the said Agreement for Sale and the agreement could not be registered. The complainant noticed that the OP intentionally delay to execute Agreement for Sale and to start the construction work. Being frustrated, the Complainant asked the OPs vide to refund the deposited amount. But the OP did not reply the said mail. Thereafter the complainant again send a notice through mail to the OP for cancellation of sale agreement and refund of deposited amount with interest. As the OP remain unturned the complainant has compelled to lodge a complaint to Belghoria Police Station on 08/05/2019 and an F.I.R has been registered against the OPs for not refunding the deposited amount. In spite of that the OPs did not move. Till date the complainant neither got theflat nor got the refund of deposited money. Finding no other alternative complainant has filed the instant consumer complaint for getting reliefs.
OPs1 & 2 contested the case by filing W.V. contending inter alia that the instant complaint is baseless, suppression of facts, false, barred by limitation and this Forum has no jurisdiction to hear the case. The case of the OP is that complainant has booked the said flat for resale purpose hence not consumer within the meaning of Consumer Protection Act. Further it is submitted that the flat in question was about to start but without waiting for the project to be completed the Complainant wanted to backed out of the project without stating any specific reason.Therefore, the OP has prayed for dismissal of the instant complaint.
Upon service of notice OPs 3& 4 did not appear before the Commission to defend themselves and no WV is filed on behalf of them within stipulated period. Thus the case runs ex parte against them.
We have gone thoroughly evidence adduced by the parties including documents on record and gave careful consideration to the arguments advanced by the Ld. Lawyers for the parties.
The Complainant has tendered evidence supported by an affidavit. The complainant replied to the questionnaire of OPs 1 & 2 set forth by their adversaries. But OPs 1 & 2 have failed to reply to the questionnaire of the complainant and to file E/Chief after getting several chances.
It is admitted fact that the Complainant has hired Housing Construction service from the OPs 1 & 2 for one residential apartment being Unit No.He-T-14 on the 3rd floor in Block-HE situated in the ECO Homesby paying Rs.2,83,500/-out of total consideration amount of Rs.13,96,000/-vide Cheque No.983332 dated 12/08/2015 of Rs.20,000/- , Cheque No.983333 dated 12/08/2015 for Rs.83,500/-,Cheque No.983334 for Rs.55,000/- drawn on United Bank of India and Cheque No.999983dated 08/09/2015 for Rs.1,25,000/- drawn on Indian Bank and above mentioned flat was allotted to the Complainant by the OPs 1 & 2 vide letter dated 30/07/2015. Documents furnished by the complainants supported the averments made out in the complaint petition.
It has been argued by the Complainants that despite paying the aforesaidamount OPs 1 & 2 did not come forward to execute Agreement for Sale and did not start the said project work although it is clearly mentioned in the Article 9(i) of the Agreement for Sale that the possession of the said flat will be delivered within 30 months from the effective dates. But no construction work has been started in the said project. Photocopies of the E-Mails showing that the complainant requested the OPs 1 & 2 through letters dated 03/06/2018to cancel his booking and refund the deposited amount after deducting the necessary charges, if any, due to his voluntary retirement from the service. On 06/02/2019the Complainant again sent a letter to the OPs 1 & 2 for cancelling the booking and provide full refund as early as possible and forwarded the same to the OPs 3 & 4. Photocopy of the Application dated 08/05/2019 goes to show that the Complainant lodged a complaint to the Inspector – in Charge at Belghoria Police Station against the OPs and also furnished relevant documents as required vide letter dated 27/07/2019. It is noted that after receiving said letters sent by the Complainant OPs 1 & 2 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 OPs 1 & 2. 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 and at the same time failed to show the reason for the delay in completion of the said flat and offering its possession to the purchaser, this would constitute deficiency on the part of the developer in rendering service to the consumer.
Moreover, photocopies of letters sent by the Complainant to the OPs show that Complainant requested the OPs 1 & 2 to cancel the agreement and refund the booking money i.e. Rs.2,83,500/-stating the reason that since he has been taking voluntary retirement from the service he was not in a position to buy thesaid flat for which the prayer for refund after necessary deduction , if any. In our view, there is justification in such submission from the side of the complainants.
Controverting the allegation made by the Complainant, Ld. Advocate for the OPs 1 & 2 argued that the alleged dispute in the petition of complaint is not a consumer dispute within the meaning of the C. P. Act as the complainants booked the said flat for the purpose of resale. We do not find any logic in such submission.
We have travelled through the documents on record and found that complainants booked a flat in the said residential project of the OPs 1 & 2 against Rs.2,83,500/-. We do not find any piece of document where from it would prove that Complainant is not consumer under the OPs 1 & 2. No such document has been found in the record wherefrom it can be established that OPs 1 & 2 have started the construction work of the subject flat after receiving booking money. In this regard we are opined that, the complainant cannot made to wait indefinitely for possession of the flat, when there is absolutely no response from the OP. Thus, this gesture of the OP can be termed as unfair trade practice.
In the result, the consumer complaint is allowed on contest in part against the OPs 1 & 2 and dismissed against the OPs 3& 4 with a direction to OPs 1 & 2 to refund the remaining balance after deducting @10% as cancellation Charge from the deposited amount i.e. Rs.2,83,500/- paid by the Complainant together with litigation cost of Rs.10,000/- and Rs.25000/- as compensation for harassment mental agony. This amount to be paid by the OPs 1 & 2 to the Complainant within 45 days from the date of this order, failing which, the deposited amount shall attract interest @12% p.a. till realization.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order within stipulated period.
Copy of the Judgment be supplied to the parties as per rules
