Date of filing: 21/04/2021

Judgment date: 07/06/2023

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by complainants namely Sri Saral Kumar Guha and Smt. Sabita Guha under section 35 of the Consumer Protection Act, 2019 against opposite party (referred as OP hereinafter) namely (1) Ideal Realistic Pvt. Ltd. represented by its Director Srawan Kr. Himatsingha  alleging deficiency in service and unfair trade practice on the part of the OPs.

Case of the complainant in short is that being allured by the advertisement of the opposite party, they applied for allotment of an apartment in the project of the OP namely ‘Gardenia’. Allotment letter was issued subsequently by the OPs on 04/09/2014. Thereafter an agreement for sale was entered into dated 12/02/2015 between the parties. The consideration price was fixed of Rs. 1,06,46,098/- out of which complainants have paid sum of Rs. 51,22,863/-. On periodical visit to the project site,  it was found that no work had commenced in respect of the said project. The last payment was made by the complainants on 16/02/2016. Complainants apprehended that the opposite party would never be able to complete its project at least for another five years. So complainants instructed their Ld. Advocate to notify the cancellation of the agreement with the OPs and to refund the sum paid by them. A notice was sent by Ld. Advocate dated 03/03/2021 to refund Rs.51,22,863/- along with cumulative interest on the said sum @ 12% p.a. But as OP paid no heed, present complaint has been filed by the complainants praying for directing the opposite party to refund Rs. 51,22,868/-,  to pay interest @ 12% p.a. calculated on and from 04/09/2014, to pay compensation of Rs. 1,00,000/- towards harassment, to pay Rs. 2,00,000/- for deficiency in service and unfair trade practice and Rs. 1,00,000/- as litigation cost.

On perusal of the record it appears that in spite of service of notice as OPs did not turn up, case has been heard exparte.

So the only point requires determination is whether the complainants are entitled to the relief as prayed for?

DECISION WITH REASONS

At the very outset it may be pertinent to point out that it is an admitted fact that an amount of Rs. 51,22,863/- has been paid by the complainants to the OP towards the consideration price, which exceeds the pecuniary limits of this commission. But on perusal of the record it appears that this complaint was filed on 21/04/2021 i.e. before the Consumer Protection (Jurisdiction of the District Commission, State Commission and National Commission) Rules 2021 came into effect. Said notification is dated 30/12/2021. The regulation provides that in pursuance of proviso to sub section 1 of section 34 of the Act, the District Commission shall have jurisdiction to entertain the complaints where the value of the good or services paid as consideration does not exceed Rs. 50,00,000/-.  Prior to the said rules came into effect, under section 34(1) of the Consumer protection Act, 2019 the pecuniary jurisdiction of District Commission was up to Rs. 1 crore. The Act of 2019 came into effect from 20^th July 2020. So at the time of filing of this complaint i.e. on 21/04/2021 the pecuniary limits of this commission was upto Rs 1 crore. If that be so than it is rightly argued by the Ld. Advocate appearing for the complainants that this commission has pecuniary jurisdiction to try the case and thus the present complaint is maintainable in law before this commission.

Now coming to the merits of the case, complainants have filed the allotment letter dated 04/09/2014 wherefrom it appears that they were allotted flat 6B (4 BHK) in Gardenia having super built up area 2050 sq. ft. The complainants have also filed the payment schedule wherefrom it appears the specific dates has been stated for payment of the consideration price. The money receipts are also filed by the complainants showing payment of sum of Rs. 51,22,863/- in total. But on a careful scrutiny of the agreement for sale dated 12.02.2015 it appears that in clause 8.2 it has been specifically stated that the total price shall be paid by the buyer in installments mentioned in part II of the 6^th schedule. The time being essence of contract. It is also stated therein that the buyer agrees not to claim any right or possession over and in respect of the said flat till such time the buyer has paid the entire total price.

As per clause 9.5 in the agreement, it is categorically specified that the vendor shall construct, finish and make the said flat habitable and parking space on or before April, 2018 for blocks named Gardenia etc. provided however the completion date may be extended by a period of further 12 months. So as per the terms and conditions of the agreement flat was to be handed over by April, 2018 but it could be extended to till April 2019. Similarly the complainants being the buyer were liable to make the payment of the total price. However, it appears from the money receipts filed by the complainant that the complainants made the last payment on 16/02/2016 and thereafter admittedly no payment has been made. According to the complainants on their visit to the site, they found the construction work was not carried by the OP and they apprehended it would not be completed even in next five years.

On perusal of the documents filed by the complainants it appears that four demand letter after the last payment has been issued by the OP to the complainant directing to make the payment and comply in terms of the payment schedule in the agreement. Those demand letters are dated 03/05/2016, 03/08/2016, 01/12/2016 and 01/11/2017. It is not clear that in spite of those demand letters sent by the OP, complainants did not write anything to the OPs that they were unable to make further payment as no construction in the said project was being carried out. The complainants have filed the copy of the legal notice which appears to have been sent by the complainants through their Ld. Advocate only on 03/03/2021. So on consideration of the terms and conditions as referred to above in clause 8.2 and 9.5 in the agreement we find even though complainants are entitled to the refund of the sum paid by them as there is no contrary material before this commission to counter the claim of the complainants that no construction work was carried out but they are not entitled to any compensation as prayed.

Hence

           ORDERED

CC/245/2021 is allowed exparte. Opposite party is directed to refund Rs. 51,22,863/- within two months from the date of communication of this order. OP is further directed to pay litigation cost of Rs. 8,000/- to the complainant within the aforesaid period of two months.