SHRI REYAZUDDIN KHAN,MEMBER
This is an application U/s.35 of the C.P. Act, 2019.
The fact of the case in brief is that the Complainants came to know through the OP1 in the 1st week of October,2014 about the public offer for sell of different residential apartment Flat No.17F along with covered car parking space on the 17th Floor of the Block named as Cirrus of the building complex “Ideal Heights” having a built up area of 1225 Sq.ft. more or less situated at Municipal premises No.302,Acharya Prafulla
Chandra Road ,P.S- Narkeldanga,Kolkata700009. The complainant made an application through OP1 to purchase a residential flat along with car parking as mentioned above with the initial booking amount of Rs,5,18,840/ and received an allotment letter accordingly from OP1.Further,the complainant made a payment of Rs,8,05,188/ bearing cheque no.332552 dated 07.01.2015 against a receipt issued by the management of OP1 and also an agreement for sale was executed with the OPs 1 and 3.The complainant stated that no construction of work started though the complainant had already paid the part amount of Rs,13,18,543/.As per clause 5.1 of the Deed of Agreement dated 07.01.2015 the construction and possession of the said unit should be completed within 36 months from the date of execution of the agreement. On 12.12.2017 the complainant issued one advocate letter to the OPs and requested for refund of the entire advance amount along with interest within 7 days from the date of receipt of the letter. The complainant again sent a legal notice on 18.05.2022 and asked for refund of the entire amount along with interest .OPs have failed and neglected to return the aforesaid amount. There is gross deficiency in service and negligence on the part of the OPs since they have not constructed the building despite having received substantial amount is in utter violations of the terms and conditions of the agreement dated 07.01.2015.
Thus, the OPs have not discharged their obligations and misappropriated money of the complainant for their wrongful gain. Such acts and omissions of the OPs tantamount to unfair trade practice as well as cheating and fraud. Finding no other way the complainant has approached the Commission for justice with relief as detailed in the complaint petition.
The OPs 1 & 2 have contested the case by filing their Written Version contending inter alia that the complaint is not maintainable either in law or on fact, it is barred by law of limitation. The OPs have stated that after obtaining building sanction plan/building permit No.BS25(V) from KMC the OPs started construction and completed three blocks out of four.Out of total consideration money of Rs,1,32,37,289 the complainant has paid only 13,23,278/-and has failed or neglected to make further payments.The OPs further stated that the construction of the subject flat delayed due to the pending of revalidation of sanction plan with KMC.So,in the meantime the OPs have offered the complainant to take another flat with car parking space of the same specification but the complainant refused to accept the same.Due to mentioned reason for delay is beyond the control of the OPs.The reason for same was communicated to the complainant too verbally. The allegations levied upon the OPs by the complainant is denied and disputed .Therefore the OPs prayed before the commission to dismiss the complaint petition with costs.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs is deficient in rendering proper service to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainants are entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
We have travelled over the documents placed on record. The complainant has filed his Evidence supported by affidavit. Both the parties have filed their BNA’s.The complainant has executed an agreement for sale on 07.01.2015 for purchase of a residential Flat No.17F along with covered car parking space on the 17th Floor of the Block named as “Cirrus” of the building complex “Ideal Heights” having a built up area of 1225 Sq.ft. more or less situated at Municipal premises No.302,Acharya Prafulla Chandra Road ,P.S- Narkeldanga,Kolkata700009 at the total consideration amount of Rs,1,32,37,289.The complainant has paid a total amount of Rs, ,13,18,543/./- (Rupees Thirteen Lakh Eighteen thousand Five hundred forty three) only to the OPs. But the OPs have not started the construction of the subject flat citing several reasons as mentioned above after elapsed of the stipulated period of 36 months.
From the conduct and intention of the OPs regarding the completion of the project,it is observed that the OPs have not given the priority to the project and neglected the same.
As mentioned in the WV that the complainant failed to deposit the installment of payment but no such letter issued which established that the OPs /requested demanded for payment as per deed of agreement. The complainant requested the OPs for refund of their deposited money through letters. The OPs failed to refund the entire amount with interest. The OPs failed to discharge their contractual obligations regarding payment of the said amount and making unnecessary delay on the part of the complainant. The OPs are fully aware that they are liable to pay the deposited advance amount including interest thereon to the complainant. Complainant deposited his hard earned money with the OPs. The OPs deliberately make their illegal gains and to deprive the complainant from his lawful right withheld the deposited amount. Thus, the OPs have adopted unfair trade practice, and in fact, withhold the deposited amount of Rs, ,13,18,543/./- (Rupees Thirteen Lakh Eighteen thousand Five hundred forty three) only along with accrued interest. Complainant has filed his affidavit reaffirming the allegations. Thus, it stands proved that despite of having received Rs, ,13,18,543/./- (Rupees Thirteen Lakh Eighteen thousand Five hundred forty three) only, the OPs have failed to refund the said amount. In absence of any explanation for failure to comply with the stipulation of refund of deposited amount, we have no hesitation in concluding that the OPs have committed deficiency in service and also has indulged in unfair trade practice. It was the sole responsibility of the OPs to legalize all their important documents related to the construction of the said flat before signing any agreement.
In absence of any explanation for failure to comply with the stipulation of refund of deposited amount, we have no hesitation in concluding that the OPs have committed deficiency in service and also has indulged in unfair trade practice.
The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainants have paid Rs, ,13,18,543/./- (Rupees Thirteen Lakh Eighteen thousand Five hundred forty three) only to the OPs for purchase of the subject flat with covered car parking but he was compelled to cancel the same and requested for refund of the amount.The OPs failed and neglected to pay deposited advance amount Rs, 13,18,543/./- (Rupees Thirteen Lakh Eighteen thousand Five hundred forty three) only for which they have to pay to the complainant and the act and conduct of the OPs are clear case of deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not deposited/paid his money with the OPs he would have invested the same elsewhere. The complainant cannot be wait indefinitely to get the said amount. The complainant has suffered mental agony, pain and harassment. It is settled principle of law that the compensation should be commensurate with loss of suffering and it should be just, fair and reasonable and not arbitrary. To get relief, the complainant has to wage a long drawn and tedious legal battle. In these circumstances, the complainant is entitled to refund of deposited amount along with compensation and interest
In this regard a Judgement of the Hon’ble Delhi State Consumer Disputes Redressal Commission under reference 2022(2) CPR 137(Del.) in the matter Mrs.Jasveen Kaur v. Parsvnath Developers Ltd., Complaint Case No.1618 of 2016 decided on 05.05.2022 is also found relevant to the present context. The Hon’ble SCDRC has been pleased to observe in Para 34 of the said Judgment “ A failure of the Developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service.”
Keeping in view of the above cited Judgments and based on the fact and circumstances of the present case,we are of the considered opinion that the Complainant has established the case against the OP1& 2. No privity exists between the complainant and the OP3.Complainant has no occasion to implead OP3 as a party to this case.Thus,instant consumer case against the OP3 is dismissed .
In the result, the Consumer Complaint succeeds .
Hence,
Ordered
That the complaint case be and the same is allowed contested against the OPs.
1.OPs are directed to refund the deposited advance amount of Rs,13,18,543/./- (Rupees Thirteen Lakh Eighteen thousand Five hundred forty three) only along with interest @ 9% PA from the date of payment till its realization..
2. The OPs are further directed to pay Rs.1,00,000/- (Rupees One Lakh ) only to the complainant as compensation for causing harassment and mental agony to the complainant
3.OPs are further directed to pay Rs. 10,000/- (Rupees Ten thousand) only as litigation cost.
Complainant put the order into execution, if the OPs transgresses to comply the order according to Consumer Protection Act, 2019 after the expiry of 60 days.
