Sri Partha Kumar Basu

The instant consumer case has been instituted by the complainant u/s 39 (1) of the Consumer Protection Act, 2019 against the Opposite Party no 1 and 2 praying for reliefs like Possession and Registration of the suit property bungalow and refund of advanced amount of Rs. 13,11,233/-  alongwith  interest and compensation with cost etc.

The complaint as averred by the complainant in a capsulated form is that the Complainant entered into an agreement with the OP no. 1 on 07.12.2019 for purchasing a bungalow no. D -47, admeasuring 1060 Sq. Ft. at the project namely ‘Royal Enclave’ in mouza : Hudarait, JL no 54, within the area of Rajarhat Police Station. Dist. North 24 Parganas. The OP No. 1 is a Pvt. Ltd. Company and the OP no. 2 is the director of the OP no. 1 / developer company. The consideration money as per the said agreement has been fixed at Rs. 45,00,000/- and as per terms and conditions of the said agreement the complainant advanced an amount of Rs. 13,11,233/-. As per terms and conditions of the aforesaid agreement in part III ; page no. 13, the development work should have completed within 36 months from the date of execution of the said agreement i.e. by 06.12.2022 and it also the bounded duty of the OPs to deliver the possession of the bungalow to the complainant within the stipulated period of time upon payment of full and final consideration agreement.  The complainant visited the project site but found that the project work has not been commenced. The matter was communicated to the OPs by email etc. but the OPs failed to respond and remained silent regarding the matter. The complainants, thereafter, sent legal notice dated 28.09.2022 for cancellation of the agreement and refund of consideration agreement but the OP/developer did not pay any heed. The Complainant therefore filed the instant complaint petition for gross negligence and deficiency in service on the part of the OPs for getting proper relief/reliefs as prayed for.

Notice was published in daily newspaper on 12.05.2023 as per order no. 5 dated 22.05.2023 for the OPs for appearance and filing W/V. The order no 6 dated 26.06.2023 reveals that the case proceeded ex-parte against all the OPs as no written version been filed by the OPs.

Ld. Advocate appearing for the complainant argued that the complainant has entered into an agreement with the OPs on 07.12.2019 for purchasing a bungalow no. D -47, admeasuring 1060 Sq. Ft. at the project namely ‘Royal Enclave’ in mouza : Hudarait, JL no 54, within the area of Rajarhat Police Station. Dist. North 24 Parganas at a total consideration amount of Rs. 45,00,000/- and as per terms and conditions of the said agreement, the complainants have paid Rs. 13,11,233/- to the OP1 developer company. The aforesaid agreement clearly indicates that the project work/development work would be completed within 36 months from the date of execution of the said agreement. The Ld. Advocate further submitted that the aforesaid unit of the bungalow was supposed to be handed over to the complainant within the aforesaid stipulated period upon payment of full and final consideration agreement.  The said agreement has been executed on 07.12.2019 and the complainants having visited the project place found no development in the project work even after elapse of 30 months. On several occasions the complainants had requested the project work to put in habitable conditions but without any effect. Having no other alternative the complainant was compelled to send email for refund of consideration for the said bungalow.  But till date the Opposite Party/developer company neither refunded the consideration price nor handed over the bungalow to the complainant. Having no hope to get the bungalow in habitable condition the complainant filed this consumer case against the Opposite parties praying for certain reliefs which are clearly enumerated in the prayer portion of the petition of complaint.

The arguments were heard from the Ld. Advocate appearing for the Complainants at length and in full.

Perused all records and documents.

Considered the submissions of the Ld. Advocate.

Upon careful perusal of copy of agreement dated 07.12.2019, it appears that the complainant has entered into an agreement with the OP No. 1/developer company and it’s Director i.e. OPs No. 2  in respect of purchasing  a bungalow no. D -47, admeasuring 1060 Sq. Ft. at the project namely ‘Royal Enclave’ in agreement : Hudarait, JL no 54, within the area of Rajarhat Police Station. Dist. North 24 Parganas together with all other common services, amenities and facilities and  the owner /developer company  has agreed to handover the aforesaid unit to the complainants within 36 months from the date of the agreement. In pursuant to the said agreement, it is evident that the total consideration agreement of Rs.45,00,000/-has been settled and fixed  and out of the total consideration money,  the purchasers/complainant has paid Rs. 13,11,233/-  to the developer company. The aforesaid agreement clearly indicates that the project work should have completed by the developer/company within 36 months from the date of signing of the agreement and the possession of the said bungalow/unit should have also been handed over to the complainants within the aforesaid stipulated period of time upon payment of full and final consideration.

On perusal of documents and records, it appears that the complainant entered into an agreement with the OPs but the project failed though the complainant advanced payment for purchasing a bungalow. The page no. 13 of the said agreement clearly indicates that the Director of the OP company /OP no.1/developer company has received Rs.13,11,233/- towards advance / earnest money from the end of the complainant Mr. Manoj Kumar Sadanandan S/o Mr. P. Sadanandan  and to that effect the OP No. 1/developer company  has issued several   money receipts on different dates which are on record bearing impeccable evidentiary value.

Hence the complainant is a consumer u/s 2(7) of the C P Act 2019.

It is on record that the agreement has been executed in the year 2019. Now we are in 2023. The bungalow in question has not yet been delivered to the complainants till date neither any progress of works has  commenced. From the four corners of the record, it appears that no written version has been filed  by the OPs and for that reason the matter has been fixed for ex-parte hearing against them. When the petition of complaint has remained unchallenged, there is no reason to disbelieve the testimonies of the petition of complaint.

The complainants cannot be expected to wait for possession of the apartment/bungalow for indefinite period of time.  So, the order of refund should be passed in favour of the complainants in order to meet the ends of justice, although both refund of advance money as well as possession and registration of the suit property can not be allowed, as per prayer in the complaint petition.

It this matter, it can be relied safely upon the decision in the matter of Suniti Kumar Bhat and others Vs Unitech Acacia Projects Pvt Ltd and Ors. reported in 2018(3)CPR 795 (NC) wherein the Hon’ble National Commission held that when the builder fails to construct the project in time, he is liable to pay compensation in the form of interest and cost of litigation. We can also rely upon another remarkable decision in the matter of Fortune Infrastructure and Anr. Vs Trevor D’Lima and Ors. reported in  (2018) 5 SCC 442 wherein Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the bungalow allotted to him and is entitled to seek refund of agreement paid by him along with compensation.  

In another case, the Hon’ble National Commission in Neena Mehrotra and Anr. Vs M/s Unitech Limited, reported in  2017 (3) CPR 376 (NC) wherein Hon’ble NCDRC has been pleased to hold that in absence of any cogent explanation for failure to comply with stipulation of delivery of possession, opposite  party has committed deficiency in service as also has indulged in unfair trade practice. When the OPs are not in a position to offer the possession of  the apartment,  the said opposite party/company shall refund the agreement with simple interest without any further liability and the allottee cannot be expected to wait for possession of the aforesaid apartment for indefinite period of time.

Keeping in view of the above observation and for finality of the litigation, we think that there is a clear fault and gross negligence on the part of all OPs and accordingly we  are constrained to allow the instant consumer case ex-parte against all Opposite parties with costs.

Now, for fixation of amount of Compensation, the facts of few Judgements are being consolidated for the sake of brevity. In the Civil Appeal No. 5785 of 2019 are being referred to as the lead matter . Let us rely upon the Reportable Judgement of the Hon’ble Supreme Court of India in the matter of Civil Appeal No. 5785 of 2019 in Ireo Grace Realtech Pvt. Ltd. Vs.Abhishek Khanna & Ors. Challenging the Judgment of Hon’ble NCDRC, New Delhi in a matter on account of the inordinate delay in completing the construction and obtaining the Occupation Certificate at Gurgaon, Haryana, which has been decided and ordered for a compensation in the form of simple interest @ 9% per annum.

In another Complaint Case no. CC/780/2019, the Hon’ble SCDRC, West Bengal which is similar in it’s contents and merit and the complaint case filed against the same OP company during near period on 27.09.2019, Rs. 4,30,000/- was paid by the complainant on 25.01.2016 as advance for booking for a 2 BHK flat (with part refund of 1,10,000/- on 12.07.2019) for a total consideration money of Rs.21,50,000/- and a Car parking for Rs. 3,50,000/- to which the bench of Hon’ble President and Member (Female) held in para 23, 24 & 25 of their Order dated 01.08.2022 that :

“That the complaint case No. CC 780 of 2019 be and the same is allowed ex parte against the Opposite parties. The Opposite parties are hereby directed to refund the amount of Rs.3,20,000/- (Rupees three lakh and twenty thousand) only to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the date of each payment till the date on which the entire amount along with compensation is paid, in the form of compensation. The Opposite parties shall pay Rs. 10,000/- (Rupees ten thousand) only as cost of litigation. The payment in terms of this order shall be made within three months from this day”

In another Complaint Case no. CC/327/2019 at Hon’ble SCDRC, West Bengal which is identical in it’s contents and merit and near period of flat booking against the same OP company on 06.05.2019, Rs.1,55,000/- was paid by the complainant on 22.05.2017 as advance for booking of a 3 BHK flat and one car parking for a total consideration money of Rs.15,50,000/- to which the bench of Hon’ble President of the State Commission and the Member (F) held in their Order dated 24.03.2022 that

“That the Complaint case no. CC/327/2019 be and the same is allowed ex-  parte against the Opposite Party. The Opposite Party is hereby directed to refund the amount of Rs.1,55,000/-(Rupees one lakh fifty five thousand) to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the date of each payment till the date on which the entire amount along with compensation is paid in the form of compensation. The Opposite party shall pay Rs.10,000/- (Rupees ten thousand) as cost of litigation. The payment in terms of this order shall be made within three months from this day. If the Opposite party fails to comply with the direction made above within the period mentioned above, then the complainant is at liberty to get the order implemented with due course of law”

Hence, the Complaint case no. CC/218/2022 be and the same is allowed ex- parte against the Opposite Parties.

Therefore, it is

                                                                                   ORDERED

That the complaint case be and the same is allowed on ex-parte basis against the OP 1 and 2 with cost of Rs.20,000/- (Rupees Twenty Thousand) only.

That the Opposite parties, jointly and severally, are directed to make the refund amounting to Rs. 13,11,233/- (Rupees Thirteen lakhs Eleven Thousand Two Hundred and Thirty Three) to the complainant within 60 (sixty) days from the date of this order alongwith a simple interest @ 8% per annum  from the date of  each payment in the form of compensation till full realisation.

That the opposite parties are further directed to pay a litigation cost of Rs. 20,000/- (Rupees Twenty Thousand) only to the complainant within the aforesaid  stipulated  period of time, in default, the said amount shall carry simple interest @ 8 % per annum till full realisation.

The Complainant is at liberty to put the order in execution, in case of non-compliance of order by the OPs.

Thus the consumer case stands disposed with above directions.

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

The final order will be available in the website at www.confonet.nic.in.

    Partha Kumar Basu

            Member