MR. AYAN SINHA MEMBER This is a complaint u/s 35 of the CP Act, 2019, made by Shri. Sourabh Dey alleging deficiency in service against the OPs praying for a direction upon the OPs to refund back Rs.7,80,000/- along with interest @12% till realization, to pay compensation of Rs.2,00,000/- along with litigation cost of Rs.50,000/-. FACTS IN BRIEF Complainant with an intention for having his own residential accommodation approached the OPs to purchase a piece of land measuring 6 cottahas being Plot No.509 and 534 lying and situated in Mouza – Bagu, under L.R. Dag No.- 58, under L.R. Khatian No.247,328,579,581,582, J.L. No. – 52, under P.S. – Rajarhat, District – 24 Parganas (North), wherein the OPs had assured that they will construct/develop well constructed road to reach plot of lands along with side drains, electricity, park, lake, play-ground, community hall, market etc. attached to the said plot of land in schedule. Complainant purchased the said land in question for a consideration of Rs.7,80,000/- and accordingly the complainant and the OPs entered into an Agreement for sale on 29th December, 2015, wherein it was stated that the said plot of land will be handed over to the complainant within 35 months from the date of execution of agreement for sale which may be extended maximum for a period of 3 months i.e. on December, 2017, after certain developments/construction as mentioned in the said agreement and for this complainant also paid Rs.49,441/- as registration charges for the said agreement to Govt. of W.B. As stated in the petition of complaint, the OPs assured to register and execute the deed of conveyance in favour of the complainant after the completion of the construction/development of the said piece of land, failing which the OPs shall refund the deposited amount along with interest at the time of December, 2017. Thereafter, the OPs could not complete the said construction and failed to hand over the possession of the said plot of land to the complainant after certain development to which complainant made a several requests to the OPs to complete the construction and hand over the possession of the said plot of land in schedule. But the OPs neither handed over the possession, nor refunded the deposited amount of Rs.7,80,000/- along with interest as agreed between the parties. Although assurance for refund was given to the complainant on 25.04.2021. The complainant suffered a huge loss due to the inaction on the part of the OPs and thus, finding no other alternatives, complainant filed this instant case before this Commission. Notices were served upon the OPs, but the OPs did not contest this case by filing W/V and so the case was heard ex parte against them vide Order dated 12.07.2022. Be it noted, the OPs appeared through their Ld. Advocate on 23.08.2022 and filed a petition praying to recall the ex parte order heard against them which was considered and rejected by this Commission vide Order dated 21.10.2022. Complainant filed evidence on affidavit where he has reiterated the facts as mentioned in the complaint petition. Complainant also filed Brief Notes of Argument along with certain originals during the course of final hearing. POINTS FOR DETERMINATION - Whether the complainant is a ‘Consumer’ under the purview of CP Act, 2019?
- Whether the OPs were negligent as alleged for?
- Whether the complainant is entitled to the relief(s) as prayed for?
DECISION WITH REASONS All the points are taken up together for discussion for the sake of conveyance and in order to avoid repetition of facts. In order to substantiate his claim, complainant had filed copy of agreement for sale entered between the complainant and the OPs on 29.12.2015. On perusal of the complaint petition and the copies of annexures, agreement and the money receipt issued by the OPs, it is noticed that a sum of Rs.7,80,000/- for the entire consideration price was paid to the OPs by the complainant on different dates. As per Section 2(7) "Consumer" means any person who— “(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.” So, there is no doubt that the complainant is a ‘Consumer’ as he had availed/hired the service of the OPs by way of the agreement wherein the OPs had assured to give service by constructing site drains, electricity, park, lake, play ground, community hall, market as mentioned in the agreement for sale. Thereafter, the OPs did not hand over the possession and execute the deed of conveyance for the said land in question within 35 months as stated in Agreement for sale. It is settled principle that the complainant cannot be made waited for an indefinite period if the possession & the deed is not executed within the stipulated period. On further perusal of the copies of annexures, it is also noticed there were several e-mail communications between the complainant and the OPs, where we found in e-mail dated 24.07.2021 & 03.08.2021, the OPs assured to refund the booking amount within 60 days latest by 23rd September, 2021, but till date, the said payment was not refunded to the complainant. So, considering the facts & circumstances and the contentions submitted by the Ld. Counsel for the complainant, we opined that the OPs were negligent and there was certainly a deficiency in service on the part of the OPs and, therefore, the complainant is entitled to the relief(s). Moreover the instant case remains unchallenged & unrebutted also. In our view, it would be appropriate if a direction be given upon the OPs to refund of Rs.7,80,000/- along with interest @9% p.a. and Rs.5,000/- towards cost of litigation, justice would be served. Since the compensation in the form of interest has been awarded on the refunded amount, the grant of compensation under the head of huge loss and suffering as prayed by the complainant is hereby quashed. In the end, the complainant has succeeded in proving this case. Hence, it is ORDERED That the instant case be and the same is allowed ex parte against the OPs. OPs are directed to pay Rs.7,80,000/- (Rupees Seven Lakh Eighty Thousand Only) along with interest @9% p.a. to the complainant from the date of last payment i.e. 29.11.2018, until realization in full. OPs are also directed to pay Rs.5,000/- (Rupees Five Thousand Only) to the complainant towards the cost of litigation. OPs to pay the awarded amount within 60 days from the date of this Order. The liabilities of OPs are jointly and severally. If the awarded amount is not complied by the OPs within the aforesaid period, the complainant is at liberty to proceed in accordance with law. | 
