Sri Ashoke Kumar Pal, President
The matrix of the instant complaint case in a nutshell is that the complainants booked 1 BHK Flat measuring about 300 Sq. ft. in the 6th Floor of Block No.7, Flat Type-A, Flat No.L at Dharitri Universia Project more fully described in the schedule of the petition of complaint and the memorandum of understanding dated (Annexure-A) dated 04.05.2017 at a valuable consideration of Rs.9,50,000/- (Rupees Nine Lakhs and Fifty Thousand) only. The complainants paid Rs.2,59,550/- (Rupees Two Lakhs fifty Nine Thousand Five Hundred and Fifty) only out of the total consideration amount of Rs.9,50,000/- on different dates and the OPs acknowledged the receipt of the same by issuing money receipts (Annexure-B). A memorandum of understanding dated 04.05.2017 (Annexure-A) was made by and between the parties. The OPs violated the terms and conditions of the memorandum of understanding and failed to deliver the possession of the scheduled flat to the complainants despite payment of a considerable amount. The OPs also failed to execute and register a proper deed of conveyance in respect of the scheduled flat in favour of the complainants receiving the balance consideration amount despite repeated requests by the complainants. The complainants approached the OPS several times from 31.12.2018 to deliver the peaceful possession of the scheduled flat in favour of the complainants and / or to refund the earnest money with interest which has been paid by the complainants to the OPs. But the OPs on all the occasions gave assurances to the complainants but ultimately failed to deliver peaceful possession of the scheduled flat in favour of the complainants and also failed to execute and register a proper deed of conveyance in respect of the scheduled flat in favour of the complainants which prompted the complainants to lodge a complaint before the Assistant Director, Consumer Affairs and Fair Business Practices, South 24 Parganas but no fruitful result has been achieved and the complainants ultimately was compelled to file the instant complaint case on the relief sought for in the petition of complaint.
The OPs did not come forward to contest the case and as such by Order No.4 Dated 13.12.2022 the instant case was declared to be proceeded ex-parte against all the OPs and accordingly the instant case was heard ex-parte.
Points for Decision :-
- Are the complainants, consumers?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Are the complainants entitled to get relief as prayed for?
Decision with reasons :-
Point No.1:-
On perusal of the case record along with copies of documents, it appears that the complainants were willing to purchase the scheduled flat more fully described in the schedule of the petition of complaint and the memorandum of understanding dated 04.05.2017 and the O.Ps agreed to sell the same to the complainants for which the memorandum of understanding dated 04.05.2017 has been made by and between the parties. The complainants paid Rs.2,59,550/- (Rupees two lakhs fifty nine thousand five hundred and fifty) only out of the total consideration amount of Rs.9,50,000/- only on different dates and the OPs acknowledged the receipt of the same by issuing money receipts. Therefore, the complainants are consumers as defined U/S 2(7) of the Consumer Protection Act, 2019.
As such, Point No.1 is decided in favour of the complainants and against the OPs.
Point No:2 :
The complainants booked the scheduled flat and entered into a memorandum of understanding dated 04.05.2017 with the OPs to that effect. The complainants also made part payment of Rs.2,59,550/- (Rupees two lakhs fifty nine thousand five hundred and fifty) only out of the total consideration amount of Rs.9,50,000/- only on different dates and the OPs acknowledged the receipt of the same by issuing money receipts from which it appears that all the payments have been properly made. On the other hand, despite payment of considerable amount by the complainants as per terms of the memorandum of understanding dated 04.05.2017, the OPs failed and neglected to hand over the possession of the scheduled flat to the complainants and to execute and register a proper Deed of Conveyance in favour of the complainants receiving the balance consideration amount. The complainants finding no other alternative requested the OPs to deliver the possession of the scheduled plot of land as promised by them. But the OPs were very much reluctant and paid no heed thereof. Therefore, it is clear from the averments of the complainants that the OPs are guilty of deficiency in service and unfair trade practice.
As such, Point No.2 is also decided in favour of the complainants and against the OPs.
Point No.03 :-
The complainants booked the scheduled flat more fully described in the schedule of the petition of complaint and the memorandum of understanding dated 04.05.2017 from the OPs and made payment of a considerable amount of Rs.2,59,550/- (Rupees two lakhs fifty nine thousand five hundred and fifty) only out of the total consideration amount of Rs.9,50,000/- only. But the OPs violated the terms and conditions of the memorandum of understanding dated 04.05.2017. Neither the OPs handed over possession of the scheduled plot of land as described in the schedule of the memorandum of understanding dated 04.05.2017 nor they returned back the amount of Rs.2,59,550/- (Rupees two lakhs fifty nine thousand five hundred and fifty) only with interest which they received from the complainants as per terms of the memorandum of understanding dated 04.05.2017. Therefore, as the complainants did not get any positive response from the OPs, they were compelled to file the instant complaint case against the OPs on the reliefs sought for in the petition of complaint. As such, there is no hesitation to hold that the complainants are entitled to get the reliefs as prayed for as the OPs did not hand over physical possession of the scheduled flat to the complainants. The complainants failed to get service from the OPs. On the other hand, the complainants were harassed by the OPs by various ways. Therefore, the complainants are entitled to get the reliefs as prayed for.
Thus the Point No.3 is also decided in favour of the complainants and against the OPs.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the instant complaint case be and the same is hereby allowed ex-parte against the OPs with cost of Rs.25,000/- (Rupees twenty five thousand) only.
The OPs are liable and are directed to deliver vacant and peaceful possession of the scheduled flat to the complainants and to execute and register a proper Deed of Conveyance in respect of the scheduled flat in favour of the complainants within 60 days from the date of passing this order.
Alternatively, the OPs are liable and are directed to refund the entire earnest money of Rs.2,59,550/- (Rupees two lakhs fifty nine thousand five hundred and fifty) only along with simple interest @12% p.a. w.e.f. 17.04.2017 (Date of payment of first instalment) to the complainants till the date of final realization thereof within 60 days from the date of passing this order.
That the OPs are liable and are also directed to pay compensation to the tune of Rs.50,000/- (Rupees fifty thousand) only for mental pain and agony, deficiency in service, unfair trade practice, harassment and inconvenience suffered by the complainants, within 60 days from the date of passing this order.
That the OPs are liable and are also directed to pay litigation cost of Rs.25,000/- (Rupees twenty five thousand) only within 60 days from the date of passing this order.
That the complainants are at liberty to put the order into execution after the expiry of 60 days in case the orders are not complied with by the OPs within 60 days from the date of passing this order.
Ld. Member Sri Partha Kumar Basu joined on 11.04.2023 and he did not take part in hearing the argument of the case. As such he did not sign the judgement and order passed on this day.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
Ashoke Kumar Pal
President
