FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the complainants, in brief, is that on 12/08/2016, complainants executed an Agreement for Sale for a residential unit at “Eco Homes” of OP1 being unit No.HA-S-10 Unit type S,along with one car parking space by paying Rs.2,60,500/- out of total consideration of Rs.13,10,800/- vide Account Payee cheque Nos.79751 and 79152 from his Account at ICICIBank in the name of the OP1 through OP2 and OP1 issued a confirmation letter vide e-mail against such payments . Thereafter, OPs executed an Agreement with the complainant. But later the complainant noticed that there is absolutely no development work at the said project. Being frustrated the complainant persuaded both the OPs and lastly without getting any kind of cooperation and proper reply from the OPs decided to cancel the booking and accordingly conveyed the same to the OP2 as the OP1 told the complainant to deal with the OP2 regarding all the matters as the complainant booked the flat through the OP2. The OP2 asked the complainant to return all the original documents viz Agreement, allotment letter and money receipts and accordingly the complainant submitted those documents to the OP2 against a receipt dated 28/12/2017. Since then the complainant has been running pillar to post to get back his hard earned money from the OPs. 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.
OP1 did not contest the consumer complaint despite service of notice. No WV is filed by the OP1 within the statutory period. Thus, the case runs ex parte hearing against the OP1.
OP2 contested the case by filing W.V. contending inter alia that the instant complaint isfalse, erroneous and baseless both in fact and law. The case of the OP2 is that complainant has booked the said flat with the OP1 and OP2 is not a party to the sale Agreement executed by and between the complainant and OP1 and the complainant had also made the payment in the name and account of OP1. There is no relationship or privity of contract between the complainant and OP2.Further, the complainant does not qualify to be a “consumer” within the definition of the Consume Protection Act as no consideration whatsoever has been paid by the Complainant to the OP2 at any point of time for availing any services and dispute of the complainant is to refund of amount against the cancellation of the booked unit on account of delay in construction and development of the project by OP1. The OP2 is the agent of the OP1 and is only facilitates the communication between the developer and the customer. OP2 is not liable and/or responsible for the development and construction of the said project, hence not accountable for any delay of the construction and for no development work at the site of the said project. The OP2 has not provided any services to the complainant in lieu of any consideration. Hence the complaint is not maintainable against the OP2.
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.
Both parties have tendered evidence supported by affidavit. The complainant replied to the questionnaire set forth by their adversaries. But OP2 have failed to reply to the questionnaire of the complainant after getting several chances.
It is admitted fact that the complainant booked a flat and one car parking space with the OP1 through OP2 for one residential apartment being Unit No.HA-S-10 Unit Type S situated in the ECO Homes by paying Rs.2,60,500/-out of total consideration amount of Rs.13,10,800/-vide cheque No.79151 dated 12/08/2015 of Rs.1,03,500/- and cheque No.79152 dated 07/09/2015 for Rs.1,57,000/-drawn on ICICI Bank. 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 after execution of Agreement and payments, OP1 did not start the said project work. Photocopies of the E-Mails furnished by the complainant showing that the complainant requested the OP2 through e-mails to cancel the booking and provide full refund as early as possible. Photocopies of the said e-mails also showing that the complainant submitted all the documents to the OP2 as suggested by their Relationship Manager. It is noted that after receiving the mails both the OPs 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 OP1. 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, photocopies of several e-mails sent by the complainant to the OP2 show that complainant requested the OP2 to cancel the agreement and refund the booking money i.e. Rs.2,60,500/- stating the reason that since the booking was made long back but the OP1did 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.
Controverting the allegation made by the complainants, Ld. Advocate for the OP2 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 Unitwith the OP1 and theOP1 received the booking amount. They have neither received any consideration nor the Agreement is executed by them with the complainant. In the WV OP2 clearly submitted that they are the agent of the OP1 who facilitates the communication between the developer and the customer. In this regard Ld. Advocate for the complainant relied upon the e-mails which are sent to the OP2 by the complainant. An e-mail dated 14/08/2015 reveals that the OP2 greet the complainant for purchasing a new property through them and also assured the complainant to assist for any query. It also reveals from the email dated 25/05/2018 of the complainant that refund initiation is pending due to approval of the OP2. E-mail dated 04/07/2018 showing that the complainant went to the office of the OP1 and met one employee of the OP1 namely Mr. Arnab Dhar who informed the complainant that they did not receive any cancellation and refund documents from the OP2. OP2 did not furnish any material documents. Therefore we do not inclined to accept such submissions made by the OP2.In this regard we opined that, the complainant cannot made to wait indefinitely for possession of the flat, when there is absolutely no response from the OPs.
We have travelled through the documents on record and found that complainants booked a flat along with one car parking space in the said residential project of the OP1 against Rs.2,60,500/-. We do not find any piece of document where from it would prove that complainants are not consumer under the OPs. No such document has been found in the record wherefrom it can be established that OP1 has started the construction work of the subject flat after receiving booking money. Thus, this gesture of the OPs can be termed as unfair trade practice.
In the result, the consumer complaint is allowed on ex parte against the OP1 and on contest against the OP2 with a direction to them jointly and severally to refund the principal amount i.e. Rs.2,60,500/- with simple interest@ 8%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 OPs to the Complainant within 45 days from the date of this order, failing which, the principal 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.
