Case of the complainants in brief is that the complainants desire to purchase a flat with the OPs upcoming project under the name and style of Unique Infinity at Salua, 211 Main Road, Rajarhat, P.S.-Airport, North 24pgs, Kolkata-700136 at a total consideration price of Rs. 43, 00,000/- out of which Rs. 10, 00,000/- was paid by the complainants on 19th July, 2015 and accordingly the OP-developer issued a money receipt. Thereafter the complainants entered into an agreement for sale with the OPs on 20.07.2015. It is stated in the petition of complaint that as per the terms and conditions of the agreement dated 20.07.2015 the total consideration of the schedule property was fixed as Rs. 39, 00,000/- @ Rs. 3,000/- per sq.ft. and one car parking space at a consideration of Rs. 4,00,000/- includes with the property totaling the consideration at Rs. 43,00,000/-. It is further stated in the petition of complaint that as per agreement the said flat would be delivered within 24 months from the date of agreement with a grace period of one month but in spite of several requests of the complainants OPs failed to deliver the same within the stipulated period. It is stated by the complainants that they had sent several e-mails on various dates from 2018 to 2020 to the OPs for regular update on the issue of construction of the said property and the OPs informed to the complainants through an e-mail dated 17.03.2018 that the construction of roof would be done by 1st week of April, 2018 but even after waiting for a considerable period there was no sign of progress seen by the complainants. The complainants thereafter enquired about the delay of handing over the possession of the flat to the OPs but unsatisfied with the reasons provided by the OPs they decided to cancel the said booking and accordingly by sending a letter dated 07.01.2020 seeking for refund of the advance amount of Rs. 10, 00,000/- as well as cancelled the booking of their flat. Since the OPs have not refunded the consideration amount paid by the complainants, the complainants filed this case praying for direction upon the OPs to refund the amount of Rs. 10, 00,000/- with an interest @12%p.a. along with compensation of Rs. 2,00,000/- and litigation cost of Rs. 20,000/-.
Notices were served upon the OP no. 1 and 2 in spite of that none appears on behalf of them and no W/V was filed. Hence the case was proceeded ex parte against OP no. 1 and 2 vide order no. 5 dated 29.08.2022.
Decision with reasons
On perusal of the agreement dated 22.05.2015 it appears that as per payment schedule complainants paid Rs.10, 00,000/ to the OP- developer for a residential flat measuring 1300 sq. ft. area and an open car parking space. The possession was to be handed over to the complainants by 22.06.2017 and this instant case was filed on 09.08.2021 for non delivery of the possession of the flat. Therefore, it is evident that OPs did not deliver the possession of the flat to the complainants till date. This negligent act of the OPs in not delivering the possession of the flat in time and not giving any assurance of the exact date of delivery amounts to deficiency in service on the part of the OPs.
Complainants prayed for interest @12% p.a. According to the agreement executed by and between the parties it appears that the developer shall pay in case of delay in delivering possession .In this instant case complainants cancelled the agreement and did not wait for receiving the possession of the flat and moreover, prayed for refund of the paid amount. Hence, they are not entitled to get interest as per agreement dated 22.05.2015.
Since the amount paid by the complainants is still lying with the OPs and OPs compelled the complainants to file this case, they are liable to pay compensation of Rs.1, 00, 000/ and litigation cost of Rs. 15,000/- as litigation cost.
In the result, the petition of complaint succeeds.
Hence, it is,
Ordered
that the complaint case being no. 197/2021 is allowed ex parte against the OPs with cost.
OPs are directed to pay Rs. 10, 00,000/- to the complainants within one month from this date of order. OPs are further directed to pay Rs. 1,00,000/- as compensation and Rs. 15,000/- as litigation cost to the complainants within one month from this date of order failing which entire amount shall carry interest @12% p.a.
Let a plain copy be given to the parties free of cost as per CPR.
Dictated and Corrected by
[HON'BLE MRS. Sagarika Sarkar]
MEMBER
