This complaint petition is filed u/s 35 of the Consumer Protection Act’ 2019 at the instance of the Complainants against the Opposite parties for alleged deficiency of services on the part of the Opposite parties in a consumer dispute of housing construction.
The facts of the complaint case in a capsulated form is that OP1 is the Private Limited Company namely Usashi Real Estates P.Ltd., Sri Supriya Patra OP2 is the Constituted Attorney of the company, PS: Bhupatinagar, Purba Midnapur, PIN 721626 and Sri Pradip Kumar Debnath OP3, Employee representative of the company, 594/1 Dakshindari Road, Bima Abasan, Flat E 2/1, 1st floor, PO: Sreebhumi, PS: Lake Town, North 24 Parganas. The Opposite parties were scheduled to construct a housing complex namely ‘King Town Newtown’ comprising flat units, car parking space, commercial spaces etc. on around 1150 decimal land at Mouza: Jirangacha, JL no 25, Balanda, Touzi no 586, PS: Kashipur, Bhagwanpur gram panchayat in the district of South 24 Parganas.
The complainants Mr.Narendra Narayan Bose S/o Late Umacharan Bose and Mr Abhishek Bose S/o Narendra Narayan Bose both of P22, Amrapali, Garia Station Road, PS : Narendrapur, South 24 Parganas, PIN 700084 wanted to purchase a residential flat and so made an application dated 11.02.2017 at the OP’s office and then entered into a Sale Agreement on 30.10.2017 with the OP company. It was agreed as per the sales agreement that the complainant would purchase a 3 BHK flat having covered area of 728 Sq. ft. more or less and car parking space of 12.5 Sq Mt. In that agreement, it was also agreed by and between the parties that the total consideration money of the said flat would be19,85,100/- (Rupees Nineteen Lac Eighty Five Thousand One hundred) only including 1 car parking space.
The complainant paid Rs.15,000/- on 10.02.2017, Rs. 2,07,750/- on 24.02.2017, Rs. 60,938/- on 15.07.2017, Rs. 1,82,000/- on 15.02.2017 and Rs. 74,049/- on 28.10.2017 by cheques against money receipts totalling to Rs. 5,93,737/- to the OP company as advance payment to book the subject flat out of total consideration money of Rs.19,85,100/-. As per the sales agreement, it was agreed between the parties that the said flat would be completed and handed over by the OP within 48 months from the date of signing of that agreement i.e. by 30.10.2021.
Further, the case of the complainant is that they did not find any physical progress about development of the said project and so the complainants again visited the office of the OPs on several occasions and sent letter on 17.08.2019 seeking refund of the tendered amount that was paid by them as advance for purchasing the flat from the OP. A legal notice dated 10.11.2021 was also served by the complainants on the OPs in this respect. On 05.09.2019 the OP company responded by letter stating to refund the amount.to the complainants. The complainants thereafter got back a refund of only Rs. 25,000/- on 20.02.2020 but the balance amount remained unpaid.
Complainant files exhibits such as sales agreement (Annx A), all the money receipts / instruments (Annx B-J) and the letters from complainants for refund and reply of OP, in support of their claims.
The OP did not take any step and no progress or development was made in the said project construction in compliance of the said sale agreement and as the OP neither refunded balance advance amount to the complainant inspite of having letter issued to the complainants promising to refund, all such requests and persuasions of the complainant went in vein. Hence, the complainants approached this Commission with a prayer for a relief inter-alia to pass an order to give direction upon the OP to refund the balance principal amount for Rs.5,14,736/- plus 12% interest for delay alongwith a compensation of Rs. 2,00,000/- for mental agony & harassment etc.
The submission made by the Ld. Advocate for the complainant were considered and the materials on record were scrutinised. On behalf of the complainant, the contents of the petition of complaint supported by affidavit and the documents annexed therewith were treated as evidence. The OP neither filed written version nor availed the opportunity to participate in the adjudication process nor adduced evidence. Hence the case was heard ex-parte against the OP company.
On perusal of the petition of complaint and the evidence on record, it transpires that the OP was going to construct a housing complex known as ‘King Town New Town’ comprising flat units, car parking space, commercial spaces etc. at the area of Kashipur, Bhagwanpur gram panchayat, South 24 Parganas.
It also transpires from records and evidences on affidavits and annexures exhibited by complainant in the complaint petition that the complainant and the Opposite parties entered into a sale Agreement on 30.10.2017 and by this agreement the complainant booked one 3 BHK flat having super built up area of 728 sq. ft. more or less and 1 car parking space. It also appears that at that time of the booking of the said flat the complainant paid Rs.5,39,737/- to the OP company as per receipts exhibited by the complainant. It also appears that the OP did not take any step for the development of the said project and neither they took any step to refund the booking money to the complainant. It is not in dispute that the OP has received the said amount of Rs. 5,39,737/- and failed to construct the housing construction project, to develop the said building and to deliver the possession of the said 3 bhk flat and car parking to the complainants.
The facts and circumstances and materials on record, more particularly, relying upon the evidence on record, it is palpably clear that the OP could not keep their promise and as such, they are deficient in rendering services towards a consumer.
In view of the above, the complainants are entitled to get relief as prayed for.
In a similar complaint case in the matter of 2016 CPJ 328 (NC), the Hon’ble National Commission held that :-
“Para 9. As far as the allottees in tower E & F are concerned, they have already sought refund as an alternative relief, along with compensation under several heads. Therefore, we have no hesitation in holding that in the facts and circumstances of the case the allottees in both the complaints are entitled to refund of the money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them. They are also entitled to appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the opposite party to deliver possession of the flats booked by them. In this regard, it is to be kept in mind that a person books a residential flat for the purpose of having a roof over his head, and in the hope that on completion of the construction within the time promised by the builder he will be able to live in a house of his own. Therefore, he is bound to feel disappointed and frustrated when the builder does not deliver upon its promise for years together”.
Again, in 2016(3) CPR 279 (NC) Hon’ble National Commission held thus –
“Para 10. Since the opposite party has failed to offer possession of the flat agreed to be sold to the complainants by the date stipulated in the Buyers Agreement in this regard and 5/6 years have already expired from the said committed date for delivery of possession. The complainants cannot be compelled to wait any more for the builder to deliver and they are entitled to seek refund of the money paid by them along with appropriate compensation.”
In view of the above decisions of the Hon’ble National Commission, we hold that the complainants are entitled to refund of the money paid by them along with appropriate compensation for the financial loss and for mental agony and harassment suffered by him on account of the failure of the OPs to deliver possession of the flat booked by them. We hold that there is deficiency in service on the part of the Opposite parties in the matter of construction of flat and delivery of possession as per terms and conditions of the MOU. In the result, the Complaint case succeeds.
Hence, it is
Ordered
That the complaint case no. CC/64/2022 be and the same is allowed ex parte against the OP. The OPs are hereby directed to refund, jointly and severally, the amount of Rs.5,14,737/- (Rupees Five Lac Fourteen Seven Hundred & Thirty Seven) only to the complainant with a simple interest @ 9% per annum with effect from the date of Sale Agreement till the date of final realisation of the entire amount.
The OPs are also jointly and severally liable and directed to pay a compensation of Rs. 25,000/- (Rupees Twenty Five Thousand) only to the complainant for deficiency in services, mental pain and agony suffered by the complainant.
All the above said payments in terms of this order will be made by the OPs to the complainants within Sixty days from this day I/D a simple interest @ 12% per annum will get accrued till the date of final realisation.
If the Opposite party fails to comply with the above said direction within the period mentioned above, then the complainant is at liberty to put the entire order into execution as per due course of law.
Let a plain copy of this Order be provided to both the parties free of cost as per CPR.
