Fact as narrated under complaint is that, this complainant resident of  Malda, Porojpur, Women’s College road, aged about 66 years had applied for provisional allotment of one flat consist of 450 sq. ft., second floor of housing complex known as “Royal Enclave” situated at Rajar Hat, south 24 parganas ,W.B. Total consideration of the flat was decided as Rs.10,80,000/- (ten lakh  eighty thousand). This complainant following that application deposited earnest money at the tune of Rs.25,000/-(twenty five thousand) behind provisional allotment. On confirmation of said booking, opposite parties that is “M/S –Dharitri Infraventure Pvt.ltd.” being represented by the directors Sri.Suman Jana and Smt. Dipanwita Samanta accepted the earnest money of Rs.25,000/- (twenty five thousand) and requested to pay an amount of 20% of the total consideration amount and accordingly the complainant paid Rs.1,08,000/-(one lakh eight thousand) vide cheque no.021037 dated.05/10/2015 and subsequently paid Rs.1,08,000/-(one lakh eight thousand) vide cheque no.000204 dated 26/02/2016. Both complainant and OPs executed a notarized memorandum of understanding on 27/10/2015. As per clause-3 of memorandum, delivery of possession of flat was scheduled within 42 months which started from the date of signing of the memorandum. But very unfortunate till the date of filing complaint these OPs did not handover the flat, event it was not completed till now. So this act of OPs amount to deficiency in service and unfair trade practice. This complainant did a lot for adjustment and waiting for possession from his part but ultimately on 29/02/2018 these OPs informed that, they are unable to perform construction pursuing memorandum and requested to choose alternative option. There after this complainant being compelled and having no other option filed an application on 21/11/2019 for refund of his booking money and advanced-amount along with interest for their default. Complainant again applied for refund of money on 10/12/2019 with all of his required documents which was received by them on 24/12/2019 and these OPs agreed to refund it, which would be after six month. But after six month these OPs did not refund the amount of total Rs.2,41,000/-(two lakh forty one  thousand) with any interest. Complainant on repeated phone calls asked about his refund and also stated about his old age and financial crisis and gave a final reminder dated 28/09/2020. That was also in vain. Thereafter he approached before Assistant–Director of Consumer Affair Department of Saltlake, Kolkata. On 22/02/2021 this dpt. called OPs for meeting on the mater through notice dated 08/03/2021 for mediation. But the same notice also remained fruit less. Accordingly this complainant approached before this commission for proper relief against deficiency in service and unfair trade practice by the OPs. He is entitle to get total amount of Rs.2,41,000/-(two lakh forty one  thousand) together with interest @9% as refund of money and for deficiency of service and mental agony and harassment at the tune of Rs.25,000/-(twenty five thousand) and as compensation of Rs.20,000/-(twenty thousand).

          In order to substantiate the case complainant filed the documents as:-

1. Application form with earnest money (which  mark as exbt.- I)
2. Money receipt dated 15/10/2015 (which  mark as exbt.- II)
3. Memorandum of understanding dated 27/10/2015 (which  mark as exbt.- III)
4. Money receipt dated 26/02/2016 (which  mark as exbt.- (IV)
5. Intimation letter for discussion dated 29/02/2018(which  mark as exbt.- V)
6. Letter of refund by the complainant dated 21/11/2019 (which  mark as exbt.- VI)
7. Postal receipt of refund prayer (which  mark as exbt.- VII)
8. Second refund prayer dated 10/12/2019 (which  mark as exbt.- VIII)
9. Form of claim for refund of money dated 24/12/2019 (which  mark as exbt.- IX)
10. Letter of refund of money dated 28/09/2020 (which  mark as exbt.- X) and postal receipt (which  mark as exbt.- X-a)
11. Application to consumer affair Saltlake for recovery of money (which  mark as exbt.- XI)
12. Letter by consumer affair dpt. Saltlake to Op. dated 08/03/2021 (which  mark as exbt.- XII)
13. Advice by the A.D. Saltlake dated 08/03/2021 (which  mark as exbt.- XIII)

On the other, opposite parties did not appear though having proper summons respectively. Hence ex-party hearing arose.

:Point to be decided:

          Whether there any deficiency of service and unfair trade practice on the part of the OPs?

:Decision with reason:

          Admittedly summonses have been served on the OP-directors of the company on 18/12/2021 (Op-1) and 20/12/2021(Op-2) as per track report vide order no.7 dated 22/02/2022. So firstly, despite receive of summons these OPs did not dare to approach/arrive before this commission to absolve their guilt. Hence this disobedience by the OPs to the notice or summons behind the complaint-petition on the contention of the complainant tilted this commission to have a faith on the complaint as to it’s authenticity.

          Now, the fact of the complaint is that this complainant decided to purchase a flat and to that respect he being a senior citizen advanced earnest money of Rs.25,000/-(twenty five thousand) to the OPs no 1 and 2 or to their company as Op no 1. He also made an agreement with the company developer where it was settled after 42 months from the creation of M.O.U, flat will be handed over. But 42 months lapsed even more and more this OPs defaulted in handing over flat. Complainant not only advanced earnest money of Rs.25,000/-(twenty five thousand) but also advanced Rs.1,08,000/-(one lakh eight thousand) in two terms dated 15/10/2015 under a cheque and Rs.1,08,000/-(one lakh eight thousand) dated 26/02/2015 under another  cheque  following the M.O.U. but  when he got no flat he was bound to ask return of his money along with interest by letters dated 21/11/2019, 10/12/2019, and 28/09/2020.

 In this respect we find as per his contention he examined himself before this commission and filed or evidenced all the documents behind this transaction on his behalf to substantiate his contention under the petition.

          This commission carefully perused all the documents like exbt.1 to 13 when we find agreement of purchase, payment of monies term by term  and application or prayer of refund on the given-amount by the complainant all  have been established.  And it is also established from his evidence that flat was not handed over to him till now.

          Therefore relying on the testimony of the complainant and his unchallenged documents and attitude of OPs as not to face the court or commission though having proper summons, this commission has no hesitation to hold that there not only deficiency in service on the part of the OPs but also its an unfair trade practice on part of them. They have fraudulently took huge money of Rs.2,41,000/-(two lakh forty one thousand) (earnest + advance ) from the complainant  but did not give any result to him as undertook by M.O.U.

          The complainant successfully proved his case to the commission.

                           Hence                            ordered,

          that the complaint dated 27/07/2021 be and same is allowed in ex-parte. Complainant namely Hirendra Chowduary do get Rs.2,41,000/-(two lakh forty one thousand) along with interest @9% per annum from the date of refusal dated 29/02/2018 up to realization. Complainant also do get Rs.25,000/-(twenty five thousand) from the OPs for their deficiency in service as compensation. Complainant also entitle to get Rs.10,000/-(ten thousand) as his litigation cost.

          OPs must pay the entire amount within three month from the date of this order i/d complainant is as liberty to take proper recourse to law under consumer protection act 2019.

          Let a copy of judgment/final order be supplied to the party at a free of cost.