Sri Jagadish Chandra Barman, Member
The facts leading to the filing of the instant case by the complainant may be epitomised as follows:-
The Complainant [Purusattam Lakhotia] being aggrieved upon the O. Ps. filed this instant Case on 31.12.2021 before this Ld. Commission for getting proper adjudication and reliefs. As per complaint petition, the Complainant had booked a flat and paid Rs. 1,00,000.00 only on 13.02.2014, Rs. 50,000.00 only on 27.05.2014, Rs. 1,50,000.00 only on 31.7.2014, Rs. 65,046.00 only on 23.03.2015, Rs. 5,00,000.00 only by taking loan from the United Bank of India vide cheque no- 010665 dated 31.3.2015 and Rs. 1,50,000.00 only on 15.8.2018. An ‘Agreement for Sale’ was also signed between the O. Ps. [Developer] and the Complainant on 05.11.2014. In total, the complainant paid Rs. 10, 15,046=00 only to the O. Ps. The O. Ps. Soumita Construction Pvt. Ltd. also issued money receipts in favour of the Complainant. The total consideration value of the said flat was settled Rs. 19,25,410.00 only.
The 2nd Schedule of the booked flat is described in the ‘Agreement for Sale’ dated 05.11.2014 as below:-part I [Said Flat]
“ Flat no. 7B, on the 7th floor saleable area approximately 600 sq. feet comprised in the proposed building named Tower-01 [ said building] in phase 1A of project ‘The County’ comprised in R. S./ L. R..Dag nos. 780, 782, 783, 785, 786, 787 and 790, recorded in L. R. Khatian No. 2698, Mouza Doulatpur, J. L. No. 79, Police Station Bishnupur, within the jurisdiction of Kulerdari Gram Panchayet, Additional District Sub-Registration Office Bishnupur, District- South 24 Parganas”
As per para 9.5 of page 7 of the ‘Agreement for Sale’ dated 05.11.2014, “the said flat in habitable condition and the parking space , if any, usable shall be done by the Developer within 42 months to the complainant from the commencement of the project works, provided, however, the completion date may be extended by a period of 6 months at the option of the Developer.”
As per 11.3 of the page 13 of the ‘Agreement for Sale’, “Without prejudice to the provisions of clause 9.5 of the Agreement for Sale, in the event the Developer fails and or neglects to perform any of the Developer`s covenants, this agreement shall , at the option of the Buyer, stand cancelled and/or rescinded, upon which the Developer shall refund to the Buyer all payments received till that date, with interest@ then prevailing SBI rate of savings account interest per annum, from the date of payment to the date of refund.”
The complainant has stated in his complaint petition that he availed a Housing Loan of Rs.5,00,000.00 only out of sanctioned amount Rs. 17,32,000.00 only vide ref. No-ZLSW3300002663/2358/1512/2016 dated 03.02.2016 from the United Bank of India under United Housing Loan Scheme and complainant has been paying huge amount with interest regularly. But the Opposite parties failed to complete the said flat and handed over within stipulated period of 42 months , the completion date may be extended by a period of 6 months at the option of the Developer means within 48 months from the date of ‘Agreement for Sale’ dated 05.11.2014. Hence, it was the duty of the O.Ps. to complete the said flat and hand over to the Complainant within 05.11.2018.
Thereafter, the complainant sent to the O. Ps. a legal notice by speed post dated 15.9.2021 through an advocate, Mr. Prakash Barman, with the request to cancel the ‘Agreement for Sale’ dated 05.11.2014 and to refund the paid amount Rs. 10,15,046=00 only to the complainant within 30 days from the date of receipt. But the complainant did not pay any heed to the anxiety, mental agony and physical harassment of the purchaser/complainant and the O. Ps. did not reply to the said notice.
Finding no other alternative, the complainant filed this instant case being No C.C.NO. 170/2021 on 31.12.2021 for proper adjudication and has sought the following reliefs:-
- An order be issued upon the Opposite Parties to refund the paid amount Rs. 10,15,046=00 only with interest;
- An order be issued upon the Opposite Parties to pay compensation amount to the tune of Rs. 3,00,000=00 only for their unfair trade practice and deficiency in service;
- An order be issued upon the Opposite Parties to pay cost of litigation Rs. 30,000.00 only; and
- Any other order be issued upon the Opposite Parties as the Ld. Commission may deem fit and proper.
Accordingly, the Ld Commission had issued show cause notices and as per postal track report, a show cause notice was served to the O. P. no.2 on 25.02.2022 and other notices were returned to the Office of the DCDRC , Baruipur. Hence, as per prayer of the petitioner, paper publication was approved and the petitioner published the instant case in a daily renowned English newspaper ‘The Indian Express’ on Friday, May 20, 2022.But the O. Ps. neither appeared nor submitted their written version before this Ld. Commission in time. Ergo, this instant case was declared ‘Ex-parte’ on 15th July 2022 against the O. P. no1 and 2. So the opinion on the part of the O. Ps. is remained unknown.
Upon the averments of the complaint petition, other documents, the following points are formulated:-
POINTS FOR DETERMINATION
1]. Is the Complainant a ‘Consumer’?
2]. Are the O. Ps. guilty of deficiency in services and unfair trade practice as alleged by the Complainant?
3]. Is the Complainant entitled to get relief /reliefs as prayed for?
EVIDENCE/BNA ETC. OF THE COMPLAINANT
The Complainant filed his evidence on affidavit on 22.08.2022 and BNA on 01.12.2022.
DECISIONS WITH REASONS.
Point no-1 :-
The Complainant booked a flat and paid to the O. Ps. Rs. 1,00,000.00 only on 13.02.2014, Rs. 50,000.00 only on 27.05.2014, Rs. 1,50,000.00 only on 31.7.2014, Rs. 65,046.00 only on 23.03.2015, Rs. 5,00,000.00 only by taking house loan from the United Bank of India vide cheque no- 010665 dated 31.3.2015 and Rs. 1,50,000.00 only on 15.8.2018. An ‘Agreement for Sale’ was also signed between the O. Ps. [Developer] and the Complainant on 05.11.2014. In total, the complainant paid Rs. 10,15,046=00 only to the O. Ps. The O. Ps. Soumita Construction Pvt. Ltd. also issued money receipts in favour of the Complainant. There is no dispute regarding these payments.
Therefore, there is no doubt that the complainant is a `CONSUMER` under Section 2[7] of the Consumer Protection Act 2019 and the Opposites Parties are service provider. As such, point no 1 is decided in favour of the Complainant and against the O. Ps.
Point no-2 :-
In relation to point for determination no. 2- ‘’Are the O. Ps. guilty of deficiency in services and unfair trade practice as alleged by the complainant?”- it is relevant to opine that in this instant case, the complainant paid Rs. 5,15,046=00 only either by cheque or by cash and also paid Rs. 5,00,000=00 only by taking house loan from the United Bank of India. In total, the Complainant paid Rs. 10,15,046=00 only to the O. Ps. The Complainant opted to get a flat for dwelling purpose being no “ Flat no. 7B, on the 7th floor saleable area approximately 600 sq. feet comprised in the proposed building named Tower-01 [ said building] in phase 1A of project ‘The County’ comprised in R. S./ L. R..Dag nos. 780, 782, 783, 785, 786, 787 and 790, recorded in L. R. Khatian No. 2698, Mouza Doulatpur, J. L. No. 79, Police Station Bishnupur, within the jurisdiction of Kulerdari Gram Panchayet, Additional District Sub-Registration Office Bishnupur, District- South 24 Parganas. ”
The total consideration amount of the said flat was settled Rs. 19,25,410.00 only. The United Bank of India also sanctioned a United Housing Loan Scheme of Rs. 17,32,000.00 only vide ref. No-ZLSW3300002663/2358/1512/2016 dated 03.02.2016 in favour of the Complainant . Hence, it is clear to us that the Complainant was ready to pay the balance consideration money [Rs. 19,25,410.00- Rs. 10,15,046.00 ] Rs. 9,10,364.00 only within due time. But the O. Ps. were not able to complete and hand over the said flat in time. Not only that but also relevant to mention that the Complainant requested several times to complete the flat in question in time or refund the amount paid Rs. 10,15,046.00 only. But O. Ps. neither completed his booked flat nor refunded the amount paid by the Complainant. Hence, the O. Ps. are of guilty in deficiency in services under section 2[11] and unfair trade practice under Section 47 of the Consumer Protection Act 2019 as alleged by the complainant.
As such, point no 2 is decided in favour of the Complainant and against the O. Ps.
Point no-3:-
“Is the complainant entitled to get relief /reliefs as prayed for?”- it is relevant to opine that the complainant paid Rs. 10,15,046=00 only and was ready to pay balance consideration money of Rs. 9, 10,364.00 only from the sanctioned loan of United Bank of India within due time. But the even after getting the demand notice from the advocate, the O. Ps./ the Developers could not complete and hand over the said flat in time. Not only that but also relevant to mention that O. Ps. neither completed his booked flat nor refunded the amount paid by the Complainant. Hence, the O. Ps. are liable for mental pain and agony, and physical harassment already suffered by the Complainant.
As such, point no 3 is decided in favour of the Complainant and against the O. Ps.
Hence, it is
ORDERED
That the complaint case be and the same is hereby allowed ‘Ex-pate’ against the O. P. no 1 and 2 with cost of litigation Rs.30,000=00 ( thirty thousand) only.
O. P. no 1 and 2 either jointly or severally are liable to refund the paid amount Rs. 10,15,046.00 [Rs. Ten lac fifteen thousand and forty six] only to the complainant within 45 days from the date of issuing this order with @10% p. a. simple interest from the date of signing the ‘Agreement for Sale’ dated 05.11.2014 till realization.
The O. P. No-1 and 2 are liable to pay cost of litigation Rs. 30,000=00 [ Rs. thirty thousand] only to the complainant within 45 days from the date of issuing this Order.
The O. P. no 1 and 2 are liable to pay compensation amount to the tune of Rs. 3,00,000=00 [ Rs three lac] only for their deficiency in service and unfair trade practice. This compensation amount should be paid within 45 days from the date of issuing this order.
All payments of litigation cost, compensation amount should be paid to the complainant by the O. Ps. either jointly or severally within 45 days from the date of issuing this order, failing which the O. Ps. should bear @ 9% p. a. simple interest from the date of issuing this order till realization.
The Complainant is at liberty to put the order into execution after expiry of 45 days, in case the orders are not complied with by the O. Ps. within 45 days from the date of issuing this order.
Let copies of the order be supplied to all the parties concerned in either speed post /registered post free of cost as per rule.
The final order be also available in www.confonet.nic.in .
Prepared and Corrected by me.
( Jagadish Chandra Barman)
(Member)
