Hon’ble Mrs. Dipa Sen (Maity), Presiding Member
The instant complaint U/s. 17 with Section 12 of the C.P.Act, 1986 at the behest of an intending purchaser Sri Susanta Sardar against the Developer alleging of deficiency in relating to housing construction.
The Brief fact of the complaint case is that being an intending purchaser of the flat in proposed upcoming project for purchasing a flat on 2nd floor being No.S-1 measuring about 1026 sq. ft. in the South West side an Agreement dated 08-10-2018 was executed with land owner/Developer Ankit Chowdhury, Proprietor of Maruti Construction. Being an absolute owner of the land as well as being the proprietor of Maruti Construction the Opposite Party Sri Ankit Chowdhury acted as a Developer accordingly one Agreement for Sale was signed in between the Complainants and Sri Ankit Chowdhury, Proprietor/Developer of Maruti Construction on 18-10-2018.
As per the said Agreement the total consideration amount was decided as Rs.31,80,600/- (Rs. Thirty One lakh eighty housand & six hundred) only for a Flat and car parking space. The Complainant has paid Rs.4,00,000/- (Rs. Four lakh) only vide cheque No. 396959 dated 08-10-2018 drawn on United Bank of India, Nimta, Kolkata to the O.P as part consideration amount. The same was duly received by the O.P. The Complainant went to visit the site and he found that the O.P started construction with ash brick instead of clay brick. The developer has used clay brick in the first floor and used ash boxes each measuring inch 8 inch x 4 inch x 12 inch on the other floors which is completely violation of the terms and condition of the Agreement as mentioned in the 3rd schedule. Thereafter, the Complainant personally visited the office of the O.P and requested him to use clay bricks and good quality of building materials. But in spite of his several requests the Developer continue using ash brick and inferior qualities of materials and consequence several cracks appeared in the inner and outer wall of the subject flat. The Complainant has made a written request on 19-02-2019 to the O.P to remove all irregularities and thereby stated that they are unable to accept the said flat with inferior quality of construction and prayed for refund of earnest amount of Rs.4,00,000/- (Rs. Four lakh) only with interest. In spite of receiving the said letter O.P remain silent and tried to sell out the subject flat to others. Without any other ways the Complainant approached before this Commission with prayer for a direction to the Opposite Party land owner/developer to complete the construction of the subject flat in terms of the Agreement dated 08-10-2018 and to handover possession, completion certificate and to registrar the said flat in their name, with an alternative prayer for refund of Rs.4,00,000/-(Rs. Four Lakh) only with interest @ 18% p.a. from 08-10-2018 till the date of realization along with further prayer of compensation of Rs.5,00,000/-(Rs. Five lakh) only and litigation cost of Rs. 50,000/-(Fifty thousand) only.
It appears from the case record that even after proper service of notices none appears on behalf of the O.P, no W/V has been filed by them. As such the case was proceeded ex-parte.
On the other hand Complainant has filed evidence on affidavit and BNA in support of their cases. Ld. Counsel appearing for the Complainant has submitted that as the O.P has used inferior quality of materials i.e. ash brick instead of clay brick the Complainant requested the Developer to use clay brick as per the Agreement. The Ld. Counsel for the Complainant has further submitted that huge cracks were appeared on the surface of plaster in the subject flat and the Complainant has requested removal of those defects. But in spite of their several requests those were not removed. The Complainant was compelled to appear before this Commission with an alternative prayer for refund of money.
Having heard the Ld. Counsel for the Complainant and on perusal of materials on record it clearly appears to us that one Agreement for Sale was executed in between the parties on 08-10-2018 and as per the said Agreement the Complainant has made payment of Rs.4,00,000/-(Rs. Four Lakh) only on the same date.
It also appears from the perusal of 3rd schedule of the Agreement (specification of flat) that, “structure – R.C.C frame structure with anti-termite treatment in foundation. Only best qualities are used in the project from the top of the line cement completion”. We do not find in the Agreement that only “clay brick” can be used for construction. Although it is expected that the Developer will use proper quality of material for the construction. The Complainant has not filed any Commissioner’s report in support of his statement. However, it appears from the fact of the case that one dispute has been arisen between the parties relating using of inferior quality of materials used in construction and ultimately the Complainant compelled to pray for refund of their hard earned amount of Rs.4,00,000/- (Rs. Four Lakh) only.
As the O.P has not filed any W/V or evidence on affidavit the averment made by the Complainants remain unchallenged and uncontroverted.
On Careful perusal of materials on record it clearly demonstrate that the Complainant is a consumer as defined U/s.2(1)(d) of the C.P.Act, 1986, as the Complainant has hired services relating to housing construction after making part consideration amount of Rs.4,00,000/-(Rs.Four Lakh) only for the said purpose.
Considering the circumstances of the instant case and the alternative prayer which has been made by Complainant the complaint case is hereby allowed ex-parte with the following directions:-
The O.P is hereby directed to refund Rs.4,00,000/- (Rs.Four Lakh) only to the Complainant along with simple interest @ 8% p.a in the form compensation from the date of payment till its realization.
O.P is further directed to make payment of Rs.10,000/- (Rs. Ten thousand) only as cost of litigation.
The above mentioned payment must be paid within 60 days from the date of communication of this order.
The Complainant is at liberty to put the order into execution for non-compliance.
Office is directed to hand over a copy of this Judgment to the parties free of cost.
