Dated 07.05.2024

As per Sanjay Kumar, President.

O r d e r

Earlier Complaint case was dismissed by order dated 10.07.2017 passed by this Commission on ground of lack of pecuniary jurisdiction against which complainant filed Appeal being First Appeal No. 2266 of 2017 before the National Commission and by order dated 15.11.2017, the National Commission set aside dismissal order passed by State Commission and allowed the appeal and complaint case was directed to be adjudicated on merit. Accordingly, the appeal was heard afresh on merit.

1. Complainant in December 2009 booked flat on 5^th Floor having super Built up area of 1675 sq.ft at the cost of Rs. 1,705/- per sq.ft in a complex situated at Yarpur, Khagaul Road, Patna which was to be constructed by M/s Jai Shanti Construction & Developers Pvt. Ltd, Patna (respondent no. 1) which is a registered company engaged in business of constructing and selling buildings/flats and respondent no. 2 is Managing Director of construction company.
2. A buyer agreement dated 19.12.2009 (annexure-C1) was entered between the complainant and the respondent company by which a flat in the name of complainant was booked at the fifth floor (subject to approval by concerned authority). Complainant made payment of Rs.  1 lac by cheque and 1 lac in cash (Total Rs. 2,00,000/-). to respondent company as booking amount for which a money receipt dated 19.12.2009 (Annexure-C-2) was issued by respondent no. 2. The construction of building was suppose to start in July, 2009 and possession was to be handed over in July, 2011.
3.  Complainant in January, 2010 visited the construction site and to her utter surprise, she came to know that there was no permission for erecting fifth floor in said building and when contacted respondent no. 2 said that effort was being made to get permission from the authority and if same is not given he would arrange flat for the complainant on 2^nd Floor.
4. Respondent no. 2 failed to get permission from concerned authority and accordingly parties entered into fresh agreement on 11.02.2010 by which flat no. 201 at 2^nd Floor was booked in the name of complainant. Booking amount of Rs. 2,00,000/- (Two lacs) which was paid by complainant on 19.12.2010 was adjusted as the booking amount for the flat no. 201 by subsequent agreement.
5. Complainant again visited the construction site and enquired about flat no. 201. Complainant learnt that flat no. 201 was already booked in the name of some another person. Complainant was completely shocked and approached respondent no. 2 who booked the flat no. 403 at 4^th floor in the name of complainant by altering the agreement dated 11.02.2010 (Annexure-C-3).
6. Flat no. 201 was of 1403 sq. feet, however, flat no. 403 was supposed to be of 1509 sq. feet and accordingly the value of flat was also altered from Rs. 26,50,401/- to Rs. 26,65,300/- in the agreement dated 11.02.2010. Flat was to be handed over in Oct- Nov, 2011.
7. In first week of April, 2010, the respondent no. 2 informed the complainant that she had to make payment of Rs. 8,00,000/- within eight days otherwise the agreement dated 11.02.2010 would become invalid. Complainant made the payment of Rs. 6,85,000/- through cheque and Rs. 1,00,000/- by cash towards booked flat for which receipt dated 12.04.2010 was provided (Annexure C-4).
8. On 18.07.2010 respondent no. 2 again asked for payment of Rs. 1,00,000/- and complainant made the payment of Rs. 1,00,000/-, (Rs. 40,000/- by cash and Rs. 60,000/- through cheque) for which receipt dated 18.07.2010 was provided (Annexure-C-5). On further demand made by respondent no. 2 complainant made payment of Rs. 2 lacs by cash on 23.07.2010 for which receipt dated 23.07.2010 was granted (Annexure-C-6). Complainant further paid Rs. 1 lac by depositing the amount in the bank account of Jai Shanti Construction and Development Pvt. Ltd on 09.09.2010 (Annexure- C-7).
9. Complainant had been residing in Durgapur, West Bengal and she is old and suffering from various ailment and was in dire need of accommodation to settle down in Patna. Opposite parties assured her to hand over flat in Oct-Nov, 2011.
10. Complainant paid Rs. 14 lacs till 09.09.2010 to respondent no. 2. As per terms of agreement the flat was to be delivered in Oct. Nov-2011, however flat was not available and respondent no. 2 started avoiding complainant and even did not picked up her call and stopped responding.
11. Respondent did not hand over the possession of flat to complainant despite her repeated request as such on 04.09.2012 complainant was constrained to take assistance of police and meeting was held between the parties in Gardanibagh police station, where respondent no. 2 promised to hand over possession of flat no. 403 to complainant by October 2012 and transfer it to the complainant by registered deed.
12. Respondent no. 2 failed to handover the possession of flat to complainant as same was not complete and respondent no. 2 offered complainant to hand over another flat and vide allotment letter dated 15.02.2013 allotted flat no. 402 and asked complainant to make further payment of Rs. 2 lacs for the flat. Upon making payment respondent no. 2 issued possession letter and allotment letter dated 15.02.2013 (Annxure-C-8 & C-9) for the flat no. 402 in favour of complainant.
13. In aforesaid possession letter of flat no. 402 complainant was asked to arrange payment of remaining consideration amount. Complainant went to take possession of flat no. 402 and she found that flat in question was locked.  She was told by neighbours that flat was already in possession of some other person in whose favour allotment letter was issued.
14. Complainant was completely shocked as she was being made fool by respondent no. 2 by issuing false allotment letter and till date she had already made payment of Rs. 16 lacs and she immediately went to residence of respondent no. 2 and demanded the entire money i.e Rs. 16 lacs which she had paid towards the total consideration amount of Rs. 26,65,300/-.
15. Respondent no. 2 assured complainant by assurance letter dated 19.03.2013 (Annexure-C-10) that he will allot and give possession of flat no. 403 once it is completed and to show his bonafide also issued two post dated cheques dated 29.04.2013 (Annexure-C-11 & C-12) in her name of Rs. 8 lacs each and told complainant that these cheques were only for her satisfaction and not to present the cheque as there is no sufficient fund in the bank account. Hence, the complainant under good faith did not present the cheque for encashment.
16. Even after much wait and assurances given by respondent no. 2 to hand over possession of flat, respondent no. 2 did not hand over possession of flat as such complainant was constrained to lodge FIR giving rise to Gardanibagh, PS case no. 195 of 2013 dated 15.06.2013 under section 406, 504, & 420 of IPC (Annexure-C-13). Respondent no. 2 had cheated many other persons in similar manner and he was arrested in June, 2014 and send to jail.
17. Complainant came to know that respondent no. 2 was released on bail in December, 2015 and went to meet him and requested to return her Rs. 16 lacs with interest or allot flat but respondent no. 2 showed his inability to return back amount but assured to provide flat to her but neither amount of Rs. 16 lacs with interest was returned nor any flat was provided to her as such complainant had no option but to approach consumer forum.
18. Notices were issued to opposite parties but inspite of valid service of notices opposite parties did not appear as such case proceeded ex-parte against them.  
19. On the basis of averments made in complaint petition and affidavit filed by complainant and documents enclosed it is established that builder buyer agreement was entered between the parties on 19.12.2009 and booking amount of Rs. 2 lacs was paid on the same date. As per terms and conditions of agreement possession of flat was to be handed over in July, 2011.
20. Initially, complainant was allotted flat on 5^th Floor but permission for erecting fifth floor was not granted by the competent authority and thereafter, flat no. 201 at second floor was allotted but said flat was booked in the name of another person and thereafter, flat no. 403 at fourth floor was allotted to the complainant which was assured to be handed over in Oct-Nov, 2011.
21. In April, 2010 on demand made by opposite parties complainant paid a sum of Rs. 8,00,000/- on 18.07.2010. Complainant again paid Rs. 1,00,000/- on 23.07.2010 and further paid Rs. 1,00,000/- on 09.09.2010 and total payment made till 09.09.2010 was Rs. 14,00,000/- but flat was not provided till 04.09.2012.
22. Complainant lodged complaint in police station where opposite party no. 2 promised to hand over possession of flat no. 403 by Oct, 2012 but same was never handed over.
23. Opposite party no. 2 on 15.02.2013 allotted flat no. 402 and allotment letter was also issued after making payment of Rs. 2,00,000/- but when complainant went to take possession of flat no. 402, it was found to be locked and complainant was informed that flat no. 402 was allotted to some another person.
24. Opposite party no. 2 again promised to hand over possession of flat no. 403 when it becomes ready but even after much delay possession of the flat was not handed over to complainant as such she asked to refund Rs. 16,00,000/- deposited by her but neither any flat was provided to her nor Rs. 16,00,000/- was refunded to her.
25. Failure to give possession of flat is a continuing wrong and constitutes continuous cause of action as such complaint case is not time barred.
26. Complainant can not be made to wait indefinitely for possession of flat allotted to her and she is entitled to seek refund of the amount paid by her with contractual rate of interest. Failure of developer to comply with the contractual obligations to provide the flat within stipulated period amounts to deficiency in service and unfair trade practice.
27. Complainant believed assurances given by opposite parties and waited for a long period in hope to get a flat but such hope was belied by the fraudulent, unethical and immoral conduct of opposite parties. Opposite parties took undue advantage of age, ill health, simplicity and innocence of complainant and made her to pay a sum of Rs. 16,00,000/- as she needed a residential accommodation to settled down in Patna whereas, she was residing at Durgapur and believed the words of opposite parties to get possession of flat in Oct-Nov, 2011.
28. Opposite parties are guilty of deficiency in service and adoption of unfair trade practice.
29. Complainant had paid her hard earned money under hope of having a shelter of her own but her dream got shattered. The only wrong committed by her was that she believed the promises made by opposite parties and reposed faith in them. Complainant was made to run from pillar to post in hope of getting possession of flat or refund of money but she could not get either of the two. Complainant had been undergoing untold physical and mental harassment for last fourteen years as such she is entitled for refund of her amount deposited i.e Rs. 16,00,000/- with interest as well as adequate compensation for hardships and suffering both physical and mental under gone by complainant as well as cost of litigation.
    I.                     Opposite parties are directed jointly and severally  to refund the amount of Rs. 16,00,000/- with interest @12% per annum from the date of deposit of amount to the opposite parties till its payment within 60 days from the date of receipt of order passed by this Commission.
                           II.                                    Opposite parties are jointly and severally directed to pay a compensation of Rs. 4,00,000/- to the complainant within 60 days from the date of receipt of order passed by this Commission failing which interest @12 % p.a shall become payable till its payment.
    III.             Opposite parties are directed jointly and severally to pay Rs. 50,000/- as cost of litigation within 60 days from the date of receipt of order passed by this Commission failing which interest @12 % p.a shall become payable till its payment.
30. A copy of this order be supplied to both the parties free of cost as mandated by the Consumer Protection Act. Office is directed to upload the judgment and order on the CONFONET.
31.    Let the file be consigned in the record room along with copy of this order.

 ( Md. Shamim Akhtar)                                            (Ram Prawesh Das)                       (Sanjay Kumar,J)

       Member                                                                   Member                                           President

Md. Fariduzzama