Dated : 14 June, 2022

Final Order / Judgement

MR. AYAN SINHA, MEMBER

            This is a complaint U/S 35 of the C.P. Act, 2019 made by Chandana Bhattachariya against OP No. 1 Sahoo @ Shaw and OP No. 2 Usashi Realstates Private Limited alleging deficiency of services and accordingly prays for a direction  upon the OPs to pay 3,61,656/- with statutory interest, to pay Rs.10,00,000/- & Rs.2,00,000/- for deficiency of service and for mental agony respectively  along with a litigation cost of Rs.40,000/-.

FACTS  IN BRIEF

            The complainant on going through the  advertisement  in  local  newspaper of the OP No. 2 Usashi Realstates Private Limited and after communicating with the OP No. 1, who is the  Director of OP No. 2 booked a self-contained residential flat measuring about 446.34 sq. ft., super built area on the  second floor along with car parking space on the ground floor in Tower  No. B-29 of the proposed building project at Usashi King Town at Gabtala Bazar, Hatisala near K-1 Bus stand, P.S. Hatisala, P.S. Leather Complex, Kolkata-700135 with all facilities and amenities and accordingly paid earnest money of Rs.3,61,656 to OP No. 1 out of the  total

consideration of Rs.13,37,314 in three instalments by way of four cheques that is Rs.1,78,247 on

23.04.2017, Rs.1,14,000 on 02.08.2017 and Rs.69,409 on 04.11.2017. The OPs were supposed to hand over  the said flat, along with car parking space in habitable condition to the complainant by October 2020, that is within 40 months from 13.06.2017 which is the date of  booking of the said flat and  car parking  space.

As stated in the petition of complaint, the OPs did not start the construction work till date although the complainant was ready to pay the next instalment to OP No. 1. But when the complainant officially enquired about the said project to the OPs, they evaded the facts giving  false pleas. Thereafter, the complainant  being frustrated, communicated with the OPs through e-mail dated 18.10.2020 and requested them to refund the earnest money of Rs.3,61,656 to which the OPs replied vide letter dated 04.11.2020, informing the complainant that they are not accepting any cancellation for pandemic situation.  The complainant  sent legal notice through her Ld. Advocate on 05.07.2021 claiming for the refund of Rs.3,61.656 but the OPs did not pay back  the said amount.

Thus being suffered with mental agony and tension, the complainant filed this case.

            Notices were served upon the OPs but the OPs did not contest this case by filing written version.

            Complainant filed  evidence-in-chief where she has  reiterated the facts as mentioned in the complaint petition and  during the course of  hearing, complainant has also filed Brief Notes of Argument.

POINTS  FOR DETERMINATION

1. Whether the complainant is a consumer?
2. Whether there has been any  deficiency of service on the part of OPs?
3. Whether the complainant is entitled to the reliefs as prayed for?

DECISION WITH REASONS

All the points are taken up together for a comprehensive discussion for the sake of convenienceand in order to avoid repetition.

In support of her claim that she hadagreedto purchase a residential flat with an open car parking space at the project Usashi King Town for a consideration of Rs.13,37,314/- and paid Rs.3,61,656/- out of the saidtotal consideration price, complainant has filed the money receipts and the confirmation letter issued by the OPs admitting the receipt of money against the said booking. There is no doubt that the complainant is a consumer.

On further scrutiny of the e-mail communications dated 04.11.2020, it is noticed that OPs stated reasons for delay of constructiondue to Government embargo, mutation &conversion and fornew rules and notifications. So, there is no doubt that the OPs havereceivedthe money from the complainant on 13.06.2017 with an assurance and confirmation

to hand over  a 2BHK flat but actually the OPs at that point  of time while accepting the money were not ready with the statutory formalities of the land.  It is also observed that the OPs took various pleas giving reasons of pandemic situation  where the Covid 19 started in  March 2020 and the complainant requested for refund of money since the construction work was not  started from 2017.

          Since, before this commission there is no absolutely and no contrary material to  counter and rebut the claim of the complainant that neither the project  has been developed and,  the money paid has been refunded. On consideration of the confirmation letter and the money receipts, we are of the view that the complainant is entitled to refund of the said sum  paid by her amounting to Rs.3,61,656 along with 10% interest per annum from the  respective dates of the said payments to till realization of the full amount.

          However, since interest is allowed, we do not find any reason to allow compensation as prayed by the complainant.

          We have also  observed that this case has been filed by the complainant on 19.08.2021 and since then she has been pursuing with her case for getting relief from this commission.

            Considering the same, we are opined to allow a litigation cost of Rs.10,000/- also to be paid by  OPs to the complainant along with refund amount. 

Hence, It is

                                                                          ORDERED

          That the instant case be and the same is allowed ex parte against the OPs.

OPs are directed to pay Rs.3,61,656/- along with interest @ 10%from the date of respective money receipts issued by the OPs as compensation until full realization within 45 days from the date of this order.

OP are also directed to pay litigation costs of Rs.10,000/- to the complainant within the aforesaid period.

If the instant order is not complied with by the OPs as directed, the complainant is at liberty to proceed in accordance with law.

Dictated and corrected by me.

Member