Dated : 05 July, 2022

Final Order / Judgement

MR. AYAN SINHA, MEMBER

            This is a complaint U/S 35 of CP Act, 2019 made by (1) Mrs. Sangeeta Bose (Complainant No. 1) and (2) Mr. Arup Kr. Bose (Complainant No. 2) against the OPs (1) M/S India Green Realty Pvt. Ltd. (OP No. 1) and (2) Shri Amitava Samanta, whole time Director of OP No. 1 (OP No. 2). Praying for a direction upon the OPs jointly and severally to refund the full consideration amount i.e. Rs. 26,65,000/- along with an interest @12%  to pay compensation of Rs. 10,000,00/- for mental agony and harassment along with litigation cost of Rs. 1,00,000/-.

FACTS IN BRIEF

The complainants being allured by the colourful story and assurances and presentation of the OPs, booked one two-storeyed Bungalow namely “Mohar Unit No. 54” admeasuring about 3480 Sq. ft. at their Bolpur Project and paid Rs. 1,65,000/- out of a total consideration of Rs. 11,000,00/- to which OPs issued allotment letter to the complainants on 19.04.2013. The agreement for sale was made on 25.05.2013 but that agreement was revoked and was offered an another two-storeyed Bungalow  of admeasuring about 3840 Sq. ft. and covered area 1995 Sq. ft. namely, Karobi, Unit No. 7 was offered to the complainants by the OPs for a price of Rs.15,000,00/- and accordingly a new agreement for sale was made on 25.05.2013 after getting an assurance from the OPs that the possession would be handed over within 36 months from the date of agreement of sale. Thereafter, by cancelling the above-said agreement dated 25.05.2013, OPs again offered an another two-storeyed Bungalow of admeasuring about 2710 Sq. ft. and covered area 1995 Sq. ft. to the complainants, namely, Karobi Unit No. 41 for a price of Rs. 12,74,000/-. The complainants relied upon the assurances and the presentation of the OP Developers and again a new agreement for sale dated 15.04.2014 was made with the Developer.

 Since the OPs did not contact the complainants for a long time, they visited for office of the OPs at Kasba where they were again given false pleas. Surprisingly, OPs contacted the complainants and told their inability to hand over the Bungalow, namely, Karobi Unit No. 41 and was offered again an another Bungalow of admeasuring about 2712 Sq. ft., having constructed  area 1995 Sq. ft. namely, Karobi Unit No. 45 for a total consideration price of Rs. 36,000,00/- against which they made a new agreement for sale on 18.05.2019 where it was stated that 85% of the consideration amount to be paid within May, 2014. Accordingly, the complainants paid Rs. 26,65,000/- within the mentioned period to which the OPs issued money receipt for the said payments.

            As stated by the complainants in their petition of complaint, that the OPs shall construct the flats with a stipulated period but the said clause in agreement for sale was left blank to which the complainants alleged that it was the ill motive of the OPs. It is also mentioned in the agreement for sale that either parties can cancel the agreement. Finding no other alternatives, the complainants issued legal notice on 21.07.2021 for delivery of possession with the completion of Bungalow, namely,  Karobi Unit No. 45 with all amenities along with execution of deed of conveyance or alternatively to refund the booking amount of Rs. 26,65,000/- along with @12% interest.

            The complainants as alleged in their petition stated that the OPs have deliberately / dishonestly committed the breach of agreement by not delivering the peaceful possession of Bungalow and thus being fed up with such conduct of the OPs, the complainants filed this case.

            Notices were served upon both the OPs i.e. OP No. 1 & 2. But the OPS did not contest this case by filing written version and so the matter was heard ex parte against them, vide Order dated 10.05.2022.

            Evidence in Chief on affidavit is also filed by the complainants where they have reiterated the facts as stated in their complaint petition. Thereafter the matter was fixed for final hearing and BNA was also filed along with certain original documents in support of their contention.

POINTS FOR DETERMINATION

1. Whether the complainants are consumers?
2. Whether there was any deficiency of service on part of the OPs, by not delivering the possession as per the agreement for sale?
3. Whether the complainants are entitled to the reliefs as prayed for?

DECISION WITH REASONS

            All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

            On perusal of the money receipts annexed therein along with the complaint petition, it is an admitted fact that the complainants have paid Rs. 1,65,000/- on 27.04.2013, 15,00,000/- on 10.03.2013 & Rs. 10,00,000/- on 17.05.2014 and accordingly money receipts to these were issued by the OPs against the booking of a Bungalow.

            So, there is no doubt that the complainants are consumers as per Section 2 (7) (ii) of the CP Act, 2019.

            We have carefully perused the copies of different agreement for sale in record made on various dates between the complainants and the OPs by booking of a Bungalow at OPs Bolpur Project, which are as follows:

            On further scrutiny of the agreement for sale dated 15.04.2014 Point No. 17, where it is stated that the purchaser shall not be entitled to cancel the booking within April, 2017, but on perusal of the agreement for sale dated 18.05.2019 Point No. 4, it is stated “the parties herein covenant to complete sale transaction and to executive the absolute deed by the end of………………”. Therefore, it is noticed that it was left blank in the agreement for sale dated 18.05.2019 and the same are duly signed by both parties. This indicates that the OPs adopted unfair trade practice by extorting money with repeated changes of agreement for sale mentioning different flats each time. Moreover they have imposed a Clause Upon complainants that the purchasers cannot cancel the agreement before April, 2017 but wherein their period of completion left blank without whispering any time about completion/execution of deed of conveyance of the said flats. On the contrary, complainants already paid Rs. 26,65,000/- to the OPs and always co-operated with the OP’s by executing different agreement for sale on different dates for different flats at OPs Bolpur Project  as per the terms of the OPs.

            Also seen the e-mail communications of OPs dated 13.03.2020 where they have admitted that after completing the formalities, the possession will be handed over to the complainant within 15.04.2020 to which complainants requested for refund of booking amount paid to the OPs. So, it is clearly understood that the complainants firstly booked the flat on 19.04.2013 and thereafter OPs made them waited till the year 2020 taking false pleas and offering various flats.

It is now settled principle of law that the purchasers cannot be made to wait indefinitely for the possession of flat or the Bungalow allowed to him as agreed between the parties.

 In the instant case, the complainants have paid Rs. 26,65,000/-  out of total consideration of Rs. 36,00,000/- which is as per the last agreement for sale dated 18.05.2019 and the OPs have neither handed over possession nor refunded the booking amount till March 2020.

            The allegations of the complainants remained unchallenged and unrebutted. That apart, we find certainly a deficiency of service on the part of the OPs by not delivering the peaceful possession of the Bungalow.

Therefore, we hold that the complainants are entitled to refund of the amount of Rs. 26,65,000/- which was paid by them to the OPs.

            Considering the prayer of the complainants for compensation & cost of litigation, in our view, payment of interest @ 10% on the said amount i.e. Rs. 26,65,000/- along with litigation cost of  Rs. 10,000/-, it would be just and appropriate. 

Since interest is allowed on the said amount of Rs. 26,65,000/-, we are not inclined to pass any Order for payment of compensation seperately.

            In the end, the complaints have succeeded in proving their case.

Hence,                        it is

ORDERED

The instant complaint and the same is being allowed ex parte against the OPs.

OPs are directed to pay Rs. 26,65,000/- (Rupees Twenty Six Lakh Sixty Five Thousand Only) along with an interest @10% to the complainants from the date of last money receipt issued by the OPs i.e. 17.05.2014.

            OPs are also directed to pay Rs. 10,000/- (Rupees Ten Thousand Only) as litigation cost to the complainants.

            Both the OPs are to pay the aforesaid awarded amount to the complainants within 45 days from the date of this Order. Both the OPs are jointly and severally liable to pay the said amount to the complainants.

            If the aforesaid Order is not complied by the OPs within the above said period of time, the complainants shall be at liberty to proceed in accordance with law.