FINAL ORDER/JUDGMENT
Presented by:
Minakshi Chakraborty, Presiding Member.
Brief facts of the case: This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainants stating that the complainants were desirous of purchasing a flat at Rajarhat in the District of North 24 Parganas in or about themonth of August, 2017. The petitioners noticed an advertisement at Ananda Bazar Patrika, a reputed Bengali daily newspaper that the OP group is raising a project at Rajarhat New Town and the petitioners in the basis of advertisement specifically on 13.8.2017 made contact with the OP and the OP upon being contacted by the petitioners and upon having knowledge that the complainants were desirous of purchasing a flat proposed to the complainants that a bungalow which has been mentioned in schedule may be purchased by them and the complainants upon verification of the documents handed over by the OP agreed to purchase the said bungalow described in schedule mentioned. Negotiations were held between the petitioners and the OP. It was agreed between the parties that the bungalow described in schedule mentioned would be purchased by the complainants from the OP at a total consideration amount of Rs.36,25,000/- and an allotment letter was issued to the purchasers by the OP on 28.8.2017 with regard to the bungalow described in schedule mentioned, further to that a Memorandum of Understanding was executed on 31.10.2017 between the OP as owner / developer and the complainants as purchasers with respect to the bungalow described in schedule mentioned and amongst other terms it was agreed in the written memorandum of understanding mentioned above that the consideration money of the said bungalow described in schedule mentioned here below would be Rs.36,25,000/-. The purchasers i.e. the petitioners herein paid an advance of Rs.10,45,000/- which the OP received and acknowledged that the unit will be completed by the OP within 42 months from the day of executing of the memorandum of understanding (i.e. from 31.10.2017) in the event of cancellation of the memorandum of understanding, the developer i.e. the OP herein was to refund the earnest money after deducting 25% of the total consideration money towards damages and Govt. duties or tax and that the refund shall be made after expiry of six months from the date of cancellation.
It be further mentioned that at the time of execution of the memorandum of understanding the OP was represented by its Director Suman Jana and Dipanwita Samanta and the petitioners state that after the execution of the above mentioned memorandum of understanding with respect to the property described in schedule mentioned, it was found that the OP did not start any development work with regard to the apartment i.e. the project which will consist of the bungalow described in schedule mentioned below and times passed but no development work was undertaken by the OP herein. The complainants time and again asked the representatives of the OP to undertake development work in accordance to the terms of the memorandum of understanding i.e. within 42 months and hand over free and vacant possession of the bungalow described in schedule mentioned. The petitioners also stated to the OP that they are ready with the balance consideration money and will make payment as and when asked by the OP. The OP on the other hand dilly dallied the matter and stated that due to some Government regulations the development work could not be undertaken and it will commence soon and be that as it may on December, 2019 the OP upon enquiry stated to the petitioner that the plan of the project consisting of the bungalow described in schedule mentioned have to be revised and the bungalow as agreed between the two which has been described in schedule mentioned cannot be constructed in accordance with the previous plan and proposed to the petitioners that instead in its place to make purchase of a bungalow described in the schedule mentioned below.
The petitioners considered the proposal of the OP and found out that the bungalow described in schedule mentioned would also be located at New Town, Rajarhat in the district of North 24 Parganas and as such the petitioners agreed to make purchase of the bungalow described in schedule mentioned and negotiations were held and it was agreed between the two parties that total consideration amount of the bungalow described in schedule mentioned would be Rs.36,22,500/- and again an allotment letter was issued to the purchasers by the OP on 26.12.2019 with regard to the bungalow described in schedule mentioned and again one memorandum of understanding was executed between the parties to this case on 28.8.2020 wherein the OP, represented by its Director Vicky Singh was incorporated as vendor as the first party and the petitioners herein was incorporated as purchaser/second party. The advance amount of Rs.10,45,000/- paid for the bungalow described in schedule mentioned below was adjusted as advance amount for the bungalow described in schedule mentioned below. Thus, the op vendor received a part consideration amount of Rs. 10,45,000/- out of total consideration amount of Rs. 36,22,500/- being paid by the complainants by way of three cheques which they acknowledged in the receipt being part of the memorandum of understanding dt. 28.8.2020.
The total consideration amount would be Rs. 36,22,500/- for the bunglow described in the schedule below, time period of 36 months was put forth for completion of the transaction, six months grace period or extension would be allowed to the op, vendor to hand over the possession of the designated bunglow and thus even after such extension if the vendor fails to provide the said bunglow the vendor shall be liable to pay to the purchasers the entire deposited amount with 10% interest within 15 days from the expiry of the extended period. No progress in the construction work with regard to the project was undertaken by the op and the complainants time and again requested the op to start construction work but all in vain and on August 2021 the op informed the complainants that the infrastructure project could not be undertaken by the op and the op advised them to apply for refund of money and the op supplied application form for refund of money and impressed upon the complainants to seek refund upon the pressure and direction by the op, the complainants gave in and applied for refund of the advance consideration amount of Rs. 10,45,000/- along with documents as mentioned in the said application form on 8.9.2021 and the op had received the said application on 8.9.2021. Thereafter the complainants met the representatives of the op at their office and sought refund of the advance money but all in vain.
Complainant filed the complaint petition praying direction upon the opposite party to allot a bunglow after receiving the amount of Rs. 25,57,500/- or in the alternative a bunglow of same measurement in the same area after receiving the said amount and to on failure of providing the bunglow refund the sum of Rs. 10,45,000/- with the interest to the tune of Rs. 12% per annum from the date of receipt of this amount till full realization and to pay a sum of Rs. 6,00,000/- as compensation and to pay the cost of the case.
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
Argument highlighted by the ld. Lawyers of the parties
Complainants filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainants shall have to be taken into consideration for disposal of the instant proceeding.
Heard argument of complainant at length. In course of argument ld. Lawyer has given emphasis on evidence and documents produced by him.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
Issue no.1:
In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (7) of the Consumer Protection Act, 2019.The point is thus answered in the affirmative.
Issue no.2:
Both the complainants and the opposite parties are residents/having their office addresses within the district of Hooghly and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.
Issue nos. 3 & 4:
Both the issues are taken up simultaneously for the sake of convenience.
At the very outset it is to be made clear that the case is running ex parte from the beginning vide order no. 6 dated 19/9/22.
Both the complainants noticed an advertisement at Ananda Bazar Patrika, a reputed Bengali daily newspaper that the OP group is raising a project at Rajarhat New Town and the petitioners in the basis of advertisement specifically on 13.8.2017 made contact with the OP and the OP upon being contacted by the petitioners and upon having knowledge that the complainants were desirous of purchasing a flat proposed to the complainants that a bungalow which has been mentioned in schedule may be purchased by them and the complainants upon verification of the documents handed over by the OP agreed to purchase the said bungalow described in schedule mentioned. Negotiations were held between the parties and it was agreed between the parties that the bungalow would be purchased at a total consideration amount of Rs.36,25,000/- and an allotment letter was issued to the purchasers by the OP on 28.8.2017 with regard to the bungalow, more so a Memorandum of Understanding was executed on 31.10.2017 between the OP as owner / developer and the complainants as purchasers with respect to the bungalow. the petitioners herein paid an advance of Rs.10,45,000/- which the OP received and acknowledged that the unit will be completed by the OP within 42 months from the day of executing of the memorandum of understanding (i.e. from 31.10.2017).it was found that the OP did not start any development work with regard to the apartment. The complainants time and again asked the representatives of the OP to undertake development work in accordance with the terms of the memorandum of understanding but the OP dilly dallied the matter by showing various flimsy reason and stated that due to some Government regulations the development work have to be revised and the bungalow as agreed between the two cannot be constructed in accordance with the previous plan and offered the petitioners to purchase a bungalow described in the schedule B.
The petitioners agreed upon to that proposal gave their nod to purchase the bunglow mentioned in schedule B at a consideration of Rs.36,22,500/- and again an allotment letter was issued to the purchasers by the OP on 26.12.2019 with regard to the bungalow and again one memorandum of understanding was executed between the parties to this case on 28.8.2020 wherein the OP was represented by its Director Vicky Singh and the advance amount of Rs.10,45,000/- paid for the erstwhile bungalow was adjusted as advance amount for the bungalow described in schedule B. Thus, the op vendor received a part consideration amount of Rs. 10,45,000/- out of total consideration amount of Rs. 36,22,500/- being paid by the complainants by way of three cheques which they acknowledged in the receipt being part of the memorandum of understanding dt. 28.8.2020.
The time period of 36 months was put forth for completion of the said work but no progress in the construction work with regard to the project was undertaken by the op and the complainants time and again requested the op to start construction work but all in vain and all on a sudden the op informed the complainants that the infrastructure project could not be undertaken by the op and the op advised them to apply for refund of money which the complainants did but till date they are not in receipt of any money as advanced by them towards consideration of the booking of the said bunglow. Many a time the complainants requested the OP to refund the money along with interest but all were in vain.
Complainants filed various documents as annexure in support of their contentions and one case reference has also been filed in support of the case of the complainants. In EXPERION DEVELOPERS PVT. LTD VS SUSHMA ASHOK SHIROOR 2022 Live Law (SC)352 Apex court categorically states that if the promoter fails to complete or is unable to give possession of an apartment, plot or building- a) in accordance with the terms of the agreement for sale or, as the case may be, duly complete by the date specified therein; or
b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason,
he shall be liable on demand to the allottees, in case the allottees wishes to withdraw from the project without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act:
Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed.
2) The promoter shall compensate the allottees in case of any loss caused to him due to defective title of the land, on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation under this sub-section shall not be barred by limitation provided under any law for the time being in force.
3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereinunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act.”
Here also as the project has not been started till date though it was scheduled to be completed within a period of 36 months this commission holds that a person cannot be made to wait indefinitely for possession of the flat / bunglow allotted to the petitioners and are entitled to seek refund of the amount paid by the petitioners along with compensation. These complainants have made out a clear case of deficiency of service on the part of the OP and are legally entitled to seek refund of the money deposited by them along with interest.
Both the issues are thus disposed of.
In the result it is accordingly
ordered
that the complaint case no. 76 of 2022 be and the same is decreed ex parte against M/S Dharitri Infraventure Pvt. Ltd., the OP herein.
Both the complainants do get refund of Rs. 10,45,000/ along with interest to the tune of 9% per annum upon Rs. 10,45,000/ from the date of receipt of the amount till date from the OP within 45 days from date:
Both the complainants do get Rs 25000/ for mental harassment and Rs. 10000/ for litigation cost from the OP within 45 days from date.
In case of failure to comply these orders the complainants are at liberty to take recourse to law.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in
