FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
Brief facts of the case are that the OP 1 is a Developer and engaged in building construction business. OP 2 is the land lord of KMC Premises No. 22/3C/1, Bright Street, Kolkata -700 017. OP 2 was authorized the OP 1 to construct a multi stored building on the above mentioned premises by demolishing the existing structure standing thereon. Complainants booked one flat measuring about 400 sq. ft. on the fifth floor of the proposed building on rental basis. The OPs agreed to provide a flat measuring about 400 sq. ft. covered area with asbestos shed on the fifth floor of the newly constructed building together with all facilities and amenities. An agreement was executed between the complainants and the OP 2 in the month of November 2017. In terms of the said agreement, the complainants will pay Rs. 2,000/- per sq. ft. to the OP 1 as construction cost. Accordingly, the complainants surrendered their tenancy. Complainants have already paid Rs. 5,00,000/- to the OP 1. Despite payment of Rs. 5,00,000/- the OP 1 constructed the building incomplete condition. The OP 1 promised to refund the consideration money along with damages within 28.11.2018. Neither the OP 1 constructed the building nor refund the consideration amount to the complainants. Having no other alternative, the complainants file the present complaint case alleging deficiency in service and unfair trade practice against the OPs.
Despite publication of notice in the daily news paper, the OPs did not turn up to contest the case by filing WV within the statutory period as provided under the CP Act, 2019. Thus, the case runs ex-parte against the OPs.
Complainant No. 2 Sk. Rayesuddin filed evidence by way of affidavit wherein he has reiterated all the averments taken in the complaint and relied the documents annexed with the complaint petition. We have heard the Ld. Advocate appearing for the complainants and also perused the material available on record.
In course of hearing the Ld. Advocate for the complainants submitted that there is a gross deficiency in service and unfair trade practice on the part of the OPs. Despite receiving of Rs.5,00,000/- as consideration amount for construction cost, they did not construct the proposed building and building was left incomplete condition. It is prayed that the consumer complaint should be allowed in terms of the prayer.
We have given our thoughtful consideration to the various pleas raised by the Ld. Advocate of the complainants and find that the OP 2 being the land lord authorized the OP 1 to construct a multi stored building on KMC Premises No. 22/3C/1, Bright Street, Kolkata - 700 017. Complainants and the OP 2 executed an agreement of booking of a flat measuring about 400 sq. ft. covered area with asbestos shade on the fifth floor of the proposed building with all amenities. Complainants have paid Rs. 5,00,000/-as construction cost of the subject flat against money receipt. The OP 1 did not complete the construction work of the proposed building and he left the building incomplete condition. Undertaking dated 04.11.2018 goes to show that the OP 1 agreed to refund 5,00,000/- to the complainants within 30.11.2018. The complainants allege that the OP 1 did not refund the consideration amount of Rs. 5,00,000/-as construction cost within 30.11.2018.
It is the duty of the OPs to handover physical possession of the subject flat to the complainants on receiving balance consideration amount of construction cost but the OP 1 being the developer left the project incomplete condition. OPs did not file WV denying the allegation of the complainants as made out in the complaint petition. Complainants cannot be made to wait indefinitely for refund of consideration amount paid by them. The proposed building is incomplete condition so, the question of handover physical possession of the subject flat on payment of balance construction cost is not at all tenable. Thus, the Commission has authority to pass appropriate order in this complaint case.
We also find both deficiency in service within the meaning of section 2(11) and unfair trade practice within the meaning of section 2(47) of the Consumer Protection Act, 2019 to be well and truly evident on the part of the OP.
In view of the above discussion, the present consumer complaint is allowed in part ex parte against the OP 1/Developer and dismissed ex-parte against OP 2/land lord with the following directions:-
- OP 1 is directed to refund 5,00,000/- (Rupees five lacs) along with interest @ 7% p.a. to the complainants.
- OP 1 is also directed to pay litigation of Rs. 5,000/- (Rupees five thousand) to the complainants as litigation cost.
- The OP 1 is directed to comply the above order within a period of 90 days from today, i.d. liberty be given to the complainants to put the final order in execution according to CP Act.
Copy of the judgment be supplied to the parties as per CP Act. Judgment be uploaded on the website of this Commission forthwith for perusal of the parties.
