The complainants Ashish Kumar Das and Smt. Neepa Das have filed this case under section 35 of the C.P. Act. 2019 against the OPs and praying for an order directing the OPs to refund Rs. 26,48,832/- (twenty six lakh forty eight thousand eight hundred and thirty two rupees) only which was paid to the OPs for purchasing a flat along with car parking with interest as per law under compensation clause in the agreement, also praying for a direction against the OPs for compensating litigation cost of Rs. 30,000/- (thirty thousand rupees) only  and also praying for compensation for harassment, mental agony, suffering and pain for non delivery of the property. And also praying for direction against the OPs for compensation for escalation of value of the property in the same at near vicinity at the present market rate and also paying for a direction against the OPs for payment of house rent that the complainants have to pay for non delivery of flat and car parking from June 2022 till disposal of the case and also praying for other reliefs.

The case of the complainants in brief is that the complainant no. 1 is an overseas citizen of India and he is also a permanent pension holder of Govt. Norway and after getting married with the Complainant no. 2 they decided to settled down at Siliguri, West Bengal, and approached the OPs who were constructing 7-storied building consisting several dual unit/flat over the scheduled land belonging to the OPs in their absolute right title and interest. The further case is that the complainants upon inspection selected flat no. D 702 suitable for their accommodation in the 7^th Floor containing a carpet area of 374 square feet  and build up area 837 square feet inclusive the area of Balconies/Varanda and 30% of the area of attached Terrace, including the areas of parapet wall, ducts, pillars columns etc. and super built areas being 1088 square feet on the North East site on the 7^th floor of B block of phase 1 of the Housing Complex Oxyprana with one open car parking space earmark for the purpose of car parking of the complainants at the said premises mentioned in the 2^nd scheduled of the agreement. It also the case of the complainants the OPs are fully competent to construct the aforesaid premises by approved/sanctioned planned from Matigara Panchayat Samity vide approval dated 26.04.2018 bearing order no. 18/path/MTS/planning as mentioned in the said agreement and the Promoters /Builders /Developers have registered the project under the provisions of the act with WBHIRA at Darjeeling under Registration no. HIRA/P/DAR/2019/ 000319 and the OPs also agreed to sale the said flat in the 7^th floor of B 702 in Block B in phase no. 1 along with open space for car parking at ground floor and that’s why complainants entered into an agreement with the OPs which was executed by and between the parties on 16.12.2021 and the consideration prices of the flat along with car parking was fixed at Rs. 31,34,040/- (thirty one thousand thirty four hundred and forty) only including GST by the OPs in phase manner payment under clause no. 1.2 which is describe in part I of the 5^th Scheduled of the agreement.

The further case of the complainants is that the OPs assured, confirmed and committed to deliver physical possession of the property along with ready and complete common areas within May 2022 in clause 7.1 under the head possession of apartment taking into consideration and the OPs also agreed to execute deed of conveyance in favour of the complainants with completion certificate or occupancy certificate or both as per clause 10 of the agreement. The further case of the complainants is that complaints paid booking amount of Rs. 30,000/- (thirty thousand) only to the OPs before execution of agreement on 25.10.2021 against the proper receipt issued by the OPs and the complainants again paid Rs. 21,63,828/- (twenty one lakh sixty three thousand eight hundred and twenty eight) only to the OPs on 25.11.2021 against proper receipt issued by the OPs before execution of the agreement of sale on 16.12.20216. the complainants thereafter paid Rs. 2,25,000/- (two lakh twenty five thousand) only to the OPs on 04.02.2022 against proper receipt issued by the OPs and further paid Rs. 2,30,000/- (two lakh thirty thousand) only to the OPs on 08.04.2022 against proper receipt issued by the OPs and thus the complainants have paid a total sum of Rs. 26,48,832/-(twenty six lakh forty eight thousand and eight hundred thirty two) only before delivery of possession of flat and car parking and execution of deed of conveyance in favour of the complainants and inspite of payment said huge amount of money which was equal to more or less total consideration value of the flat and car parking by the complainants till 08.04.2022. The further case of the complainants is that the OPs without any reasonable cause failed neglected to issued notice to the complainants in compliance of the agreement under clause no. 7.2 and failed to produce completion certificate and occupancy certificate although the complainants all along approached the OPs for taking delivery of flat and car parking but the OPs not only avoided the complainants but also misbehaves with them. The further case is that the OPs have flouted the agreement dated 16.12.2021 with an intension the grab the money paid by the Complainants towards purchase of the property falls in terms of compensation clause no. 7.6 of the said agreement. And within May 2022 the OPs have failed to deliver possession of the flat as well as car parking to the complainants and thereby the complainants intended to cancel/withdraw from the  project and communicate the OPs vide letter dt. 24.05.2022 requested the OPs to refund their moneys paid to them for purchasing the said flat and car parking along with interest and compensation/the OPs neither replied to the said letter of the complainants nor refunded money with interest and compensation and they remained silent although it was clear violation of the agreement under compensation clause which mandates that the OPs would take necessary step to refund money within 45 days from the receipt of the withdraw/cancel letter of the complainants/in the meantime 93 days have lapse till the complainants further requested OPs to deliver the flat as well as car parking by their letter dated. 26.08.2022 but the OPs did not refund money nor delivered property and also did not make any reply to that letter of the complainants./Thereafter the complainants on 31.08.2022 wrote another letter of cancellation /withdraw from the project but the OPs make no response to that letters and by this way the complainants on several occasions tried to communicate the OPs over mobile phone but they never attended those phone calls./The complainants have also stated that the intension of the OPs establishes from their acts and deeds that they were never agreed to deliver the property nor refund of money with interest and compensation as per strict compliance of the agreement to sale dated 16.12.2021/the complainants lodged a complaint with the Police Station of Matigara PS against OPs on 16.09.2022/ the Police of Matigara PS registered a police case being Matigara PS case no. 974/22 against OPs under Section 406/420 and 34 of the IPC/ Police of Matigara PS has submitted charge sheet being no. 1273 /22 dt. 31.12.2022 against the OPs/legal notice was sent on behalf of the complainants to the OPs on 06.12.2022 and in reply to the legal notice the counsel of the OPs denied to refund money and also refused to delivery flat as well as car parking under the pretext of force majeure situation which was relaxed  by Housing Industry Regulation Authority due to covid-19 and extended the delivery benefit to the OPs till 22.12.2020 long before execution of agreement on 16.12.2021 /the OPs want to shield their unfair trade practice and fraud under the veil of force majeure clause which is not at all applicable in the instant case.

Notice was issued from this Commission for servicing the same upon the OPs and the same were duly served according to Law. But inspite of receiving the notice from this commission none appears before this commission to contest this case. Accordingly the case is taken up for ex-pate hearing.

          The complainants have filed the following documents to prove their case against the OPs. Namely :-

1. Agreement of sale dated 16.12.2021 marked as annexure “A”.
2. Money Receipt for payment of Application/Booking/ Earnest money of Rs. 30,000/- on 25.10.2021 marked as Annexure “B”.
3. Money Receipt of Rs. 21,63,828/- on 25.11.2021 as 2^nd installment marked as Annexure “C”.
4. Money Receipt of Rs. 2,25,000/- on 04.02.2022 as 3^rd installment after execution of the Agreement  to sale marked as Annexure “D”.
5. Money Receipt of Rs. 2,30,000/- on 08.04.2022 4^th and last installment after execution of the Agreement to sale marked as Annexure “E”.
6. Letter dated 24.05.2022 sent by the Consumer/Complainants to the Opposite Parties marked as Annexure “F”.
7. Mail dated 26.08.2022 sent by the Consumers/ Complainants to the Opposite Parties marked as Annexure “G”.
8. Letter Dated 31.08.2022 sent by the Consumers/ Complainants to the Opposite Parties marked as Annexure “H”.
9. Copy of Legal Notice sent by the Consumer/ Complainants to the Opposite Parties on 06.12.2022 marked as Annexure “I”.
10. Copy of Reply sent by the Advocate of the Opposite Parties to the Consumers/Complainants (without Advocate’s Letter Head) on 28.12.2022 marked as Annexure “J”.
11. Copy of FIR lodged by Matigara Police Station being No. 974/2022.
12. Copy of Charge Sheet No. 1273/22 filed by Matigara Police Station to Siliguri Court against the Opposite Parties on 31.12.2022. (applied for Certified copy) marked as Annexure “K”.
13. Lease and Licence Agreement of the Consumers/ Complainants with the Landlord/Landlady for residing in Rental House marked as Annexure “L”.
14. Copy of Office Memo No. 708(2)/HIRA/L-2/2020 issued by Housing Industry Regulatory Authority, West Bengal on 01.06.2020 marked as Annexure “M”.
15. Copy of Office Memorandum No. F. 18/4/2020-PPD Government of India, Ministry of Finance, Department of Expenditure, Procurement Policy Division, New Delhi on 13.05.2020 marked as Annexure “N”.
16. Copy of Grievance Details no. 3640803 Registered marked as Annexure “O”.

          Having heard the Ld. advocate of the complainants and on perusal of the documents filed on behalf of the complainants the following points are framed which requires to be decided by this commission.

POINTS FOR CONSIDERATION

1. Whether the complainants are consumer as per the provision of C.P. Act. 2019?
2. Whether the case is maintainable in its present form and prayer under the provision of the C.P. Act. 2019?
3. Whether there is any cause of action to file this case by  the complainants?
4. Whether there was deficiency in service on the part of the OPs as alleged by the complainants?
5. Are the complainants have been able to prove this case and entitled to get any relief as prayed for?

                                                DECISION WITH REASONS

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

        In order to prove the case the complainants have  filed evidence in the form of an affidavit and also files some documents in support of their case.

     Ld Advocate of the Complainants by filing written notes of argument and during their argument has stated that  the complainants have been able to prove their case to the effect that the complainants and the OPs entered into an agreement which was executed on 16.12.2021 and total consideration price for purchase a flat as well as open car parking was fixed at Rs. 31,34,040/- (Thirty one laskh thirty four thousand and forty) only including GST by the OPs in fast phase manner payment under clause no. 1.2 which is describe in part-I of the 5^th  scheduled of the agreement. It is also argument of the complainants that the OPs assured and committed to deliver physical possession of the property along with ready and complete common areas within May 2022 (clause 7.1 under the head possession of apartment taking into consideration that time is essence of the contract under clause 5 of the aforesaid agreement). The further argument is that the OPs also agreed to executed Deed of Conveyance to convey the title of the property to the complainants with completion certificate or occupancy certificate or both as per clause 10 of the agreement.

Ld. advocate of the complainants further argued that they have filed payment scheduled along with WNA as well as complaint regarding payment entire agreed amount in favour of the OPs. It also argument of the complainants that firstly the complainants paid booking amount of Rs. 30,000/- to the OPs then paid Rs. 21,63,828/- to the OPs on 25.11.2021, again paid 2,25,000/- to the OPs on 04.02.2022, further paid Rs. 2,30,000/- to the OPs on 08.04.2022 and by that way the complainants have paid total sum of Rs, 26,48,832/- (twenty six lakh forty eight thousand eight hundred and thirty two) only before delivery of possession of the flat as well as car parking and execution of Deed of Conveyance in favour of the complainants and inspite of payment of more or less 85% of total consideration value of the flat as well as car parking by the complainants till 08.04.2022 there was no remarkable progress/ development in the construction work of the project/by that way the OPs without reasonable cause failed and neglected to comply the agreement which was executed by and between the parties/the complainants finding no other alternative sent notice to the OPs on 06.12.2022 as the OPs did not issue any notice to the complainants in compliance of the agreement under clause no. 7.2 and failed to produce completion certificate and occupancy certificate. Complainants further argued that the OPs have fluted the agreement dated 16.12.2021 with a evil intention to grab the money paid by the complainants towards purchase of property which falls on clause no. 7.6 of the said agreement/ it is also argument on behalf of the complainants that within May 2022 the OPs have failed to deliver possession of the property in favour of the complainants and thereby the complainants with intending to withdraw /cancel from the project and communicated the OPs by their letter dt. 24.05.2022 and requested the OPs to refund their moneys along with interest paid to them for purchasing their flats. It is also argument of the complainants that inspite of receiving several letters /notice of the complainants the OPs make no response to those letters and the complainants thereafter lodged a police case with Matigara police station being Police case no. 974/22 against the OPs u/s 406/420 & 34 of the IPC and after completion of investigation the IO has submitted charge sheet being no. 1273 of 2022 against the OPs on 31.12.2022. Further argument is that legal notice was sent on behalf of the complaints to the OPs on 06.12.2022 but the OPs neither refund the said sum of money along with interest to the OPs nor they deliver possession of the flat along with car parking to the complainants within May 2022 and the said conduct of the OPs are nothing but the deficiency in service as well as restrictive trade practice.

          Having heard the ld. advocate of the complainants and on perusal of the unchallenged evidence of the complainants, Written notes on argument as well as documents filed on the side of the complainants it is fact that the complainants have paid a sum of Rs, 26,48,832/- (twenty six lakh forty eight thousand eight hundred and thirty two) only to the OPs as per agreement for purchasing a flat as well as car parking. It is also fact that money receipts were issued by the OPs in favour of the complainant and the OPs after receiving the said sum of money from the complainants issued those receipts. From the record it also reveals that the complaints have filed the photo copies of the agreement dated 25.10.2021 as well as several money receipts, copies of letters /notice issued in the name of the OPs before this commission. From those money receipts it is proved that the OPs have received the said sum of money from the complainants. From the legal notice as well as from other documents of the complainants it is also proved that the OPs have not only flouted the terms and conditions of the agreement but also did not delivered the possession of the flats as well as car parking in favoru of the complainants and also failed to produce completion certificate and occupancy certificate in favour the complainants and thereby OPs are deficient in service as well as restrictive trade practice.

          Considering the arguments put forwarded by the Ld. advocate of the complainants and considering the unchallenged evidence of the complainants as well was considering the agreement /money receipts issued in favour of the complainants by the OPs we are of the view that the complainants have been able to prove the case against the OPs. Therefore the complainants are entitled to get the relief Hence,

ORDERED

That the instant Consumer Case no. 09/2023 is allowed in part on ex-parte against the OPs. All the OPs are jointly and severally liable to pay the amount of money which was received from the complainants along with interest, compensation amount for deficiency in service, for litigation cost.

          Therefore the OPs are directed to refund a sum of Rs, 26,48,832/- (twenty six lakhs forty eight thousand eight hundred and thirty two) only to the complainants along with 06% interest per annum to the complainants with effect from 08.04.2022 (till that day the complainants have paid Rs, 26,48,832/-) till making payment of entire amount.

          The OPs are also directed to pay compensation of Rs. 50,000/-(fifty thousand) only to the complainants for harassment, mental agony and pain for non-delivery of property to the complainants and for deficiency in service as well as restrictive trade practice.

          The OPs are also directed to pay a sum of Rs. 10,000/- (ten thousand) only to the complainants towards cost of litigation.

          The OPs are also directed to pay sum of Rs. 10,000/- (ten thousand) only in the consumer legal aid account of this commission.

          The OPs are further directed to pay the entire amount of money within one month from this day in default the complainants will have the liberty to take proper steps against the OPs as per law.

Let a copy of this order be supplied to the complainants free of cost.