HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. The instant complaint under section 17 of the Consumer Protection Act, 1986 ( in short, ‘the Act’) is at the instance of the complainant  Shantanu Sanyal against the developers on the allegation of deficiency in service on the part of the opposite parties in a consumer dispute of housing construction.

2. In a capsulated form, the complaint case is that the opposite parties being the developers published in different newspapers and circulated brochure that they were going to develop a residential project at Shantiniketan District, Birbhum, West Bengal, called ‘Sobuj Potro’ with the following heart-touching sentimental feeling of Bengali people which always wants to feel and touch the foot prints of Sri Rabindranath Tagore, the poet and Nobel Laureate and the statements are – “Sobuj Potro will fuse the local way of life with a global vision. The complainant after being fully allured and satisfied about the good and sentimental words of the opposite parties approached them and requested to allow the complainant as a good purchaser to purchase one bungalow at Shantiniketan Project called ‘Sobuj Potro’. The complainant accordingly handed over money of Rs.1,00,000/- (Rupees one lakh only) to the opposite party No. 1 through cheque against money receipt dated 02.04.2015 issued by the opposite party No. 1 who allotted one bungalow named “Mohar”. As per the demand of the opposite party the complainant paid Rs.10,01,537/- (Rupees ten lakh one thousand five hundred and thirty seven only) in total and by virtue of different cheques to the opposite parties. After receipt of total Rs.10,01,537/- (Rupees ten lakh one thousand five hundred and thirty seven only) the opposite parties assured to execute an agreement for sale for effective development work of the bungalow and expected date of delivery of possession. But the opposite parties till date failed to execute any agreement for sale with the complainant. The complainant on different occasions enquired with the opposite parties about the development work of the project called ‘Sobuj Potro’ and execution of the agreement for sale, but the opposite parties on each and every occasion assured the complainant that they will start the development work and also will execute an agreement for sale. But the opposite parties failed to start the construction work and execute the agreement for sale with the complainant.

3. Further case of the complainant is that losing all hope, the complainant persuaded the matter with the opposite parties either for the bungalow or refund of the deposited amount as because the opposite parties failed to complete the construction work. Ultimately on 11.11.2017 the opposite parties intimated the complainant about the part refund of the deposited amount of Rs.9,67,668/- (Rupees nine lakh sixty seven thousand six hundred and sixty eight only) but unfortunately only by giving false assurance the opposite parties sat idle till date. They neither start the construction work of the project called ‘Sobuj Potro’ nor do they return back the deposited amount to the complainant. The complainant sent several email correspondences but to no effect. The complainant sent one legal notice upon the opposite parties on 11.04.2019 with a request either to complete the bungalow and deliver the possession or return back the deposited amount. But the opposite parties have failed to construct the bungalow and to deliver the possession and / or to return back the deposited amount. Hence, the complainant approached this Commission with a prayer for the following reliefs :-

“i) To complete the construction work of the bungalow and deliver physical possession after receipt of balance consideration amount in default return back the deposited amount Rs. 10,01,537/- along with interest @ 18% per annum from the date of respective payment till realization.

ii) To award compensation to the tune of Rs.10,00,000/- for harassment, mental agony, financial loss

iii) Rs.1,00,000/- for litigation cost

iv) And pass such other order / orders as your Lordship may deem fit and proper for the ends of Justice.”.

4. Notices were duly served upon the opposite parties but on receipt of the notices the opposite parties did not turn up and did not contest the case. As such, the case was heard ex parte against the opposite parties.

5. The complainant filed evidence on affidavit.

6. The overwhelming evidence on record makes it abundantly clear that the complainant upon allured and satisfied about the brochure published by the opposite parties in different newspapers intended to purchase one bungalow at Shantiniketan project called ‘Sobuj Potro’. The complainant paid Rs.1,00,000/- (Rupees one lakh only) on 29.03.2015 by cheque against money receipt dated 02.04.2015 issued by the opposite party No. 1 and opposite party No. 1 allotted one bungalow named “Mohar”. As per demands of the opposite parties, the complainant paid Rs.10,01,537/- (Rupees ten lakh one thousand five hundred and thirty seven only) in total by different cheques but the opposite parties till date failed to execute any agreement for sale and did not deliver the possession of the said bungalow to the complainant. The complainant requested the opposite parties on several occasions but to no effect.

7. The opposite parties ultimately vide their letter dated 11.11.2017 intimated the complainant about the part refund of the deposited amount of Rs.09,67,668/- (Rupees nine lakh sixty seven thousand six hundred and sixty eight only) within a period of nine months from that date. But ultimately, the opposite parties did not start the construction of the bungalow and/ or did not refund the money to the complainant. It is not in dispute that the opposite parties have failed to construct the building. The facts and circumstances and materials on record available before us, more particularly, reliance upon the evidence on affidavit of the complainant it is palpably clear that the opposite parties could not keep their promise. As such, they are deficient in rendering services towards a consumer as per Consumer Protection Act.

8. To prove the case, the complainant have produced receipts (page Nos. 25,26,27,28 and 30) showing payment of Rs.10,01,668/- (Rupees ten lakh one thousand six hundred and sixty eight only). It is proved that the opposite parties have clearly and categorically assured the complainant to return the amount of Rs.09,67,668/- (Rupees nine lakh sixty seven thousand six hundred and sixty eight only) against cancellation of bungalow No. 58, namely “Mohar” in ‘Sobuj Potro’ Project at Shantiniketan. It is also clearly proved that the opposite parties assured that the payment will be made within a period of nine months from the date of issuing letter i.e. dated 11.11.2017.

9. On careful perusal of the record it appears to us that there is absolutely no contrary material to counter or rebut the claim made by the complainant. So, the complainant is entitled to get the refund of the money amounting to Rs. 10,01,668/- (Rupees ten lakh one thousand six hundred and sixty eight only).

10. Based on the above discussion, the complaint case filed by the complainant is allowed ex parte.

11. The opposite parties are directed to refund the amount of Rs. 10,01,668/- (Rupees ten lakh one thousand six hundred and sixty eight only) to the complainant along with 9% per annum interest from the date of the receipt till the date of payment. The opposite parties shall also pay a sum of Rs.10,000/- (Rupees ten thousand only) as cost of litigation to the complainant.

12. The order be complied with by the opposite parties within a period of 45 days from the date of receipt of the order.

13. The complaint case is thus disposed of accordingly. If the opposite parties fail to comply with the direction made above within the period mentioned above, then the complainant is at liberty to get the order implemented with due course of law.

14. Let the plain copy of the judgment be given to the complainant free of cost.

15. A copy be also served upon the opposite parties by Registered Post / Speed Post with A/D as early as possible.