FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the complainant in brief, is that, the complainant has entered into a Memorandum of Understanding Agreement with the OPs to purchase a flat of 2BHK having an area of 750sq. ft. more or less on 3rd floor , Block No. 2, Tower No. 10, Flat No. D in the ROYAL ENCLAVE Housing Complex at Mouza : Hudarait, J.L. No. 54 comprised in R.S. Dag No. 2673 appertaining to R.S. Khatian No. 2197, 1933, 1616 under the Rajarhat Polo=ice Station within the limits of Chyandpur Gram Panchayet and under the office of Additional District Sub Registrar at Rajarhat, North 24 Pgs. The complainant has booked the said flat by paying an amount of Rs.6,00,000/- out of total consideration amount of Rs.21,00,000/- on 11/10/2018. OPs issued an allotment letter in respect of a Thereafter the complainant approached to the OPs regarding the said allotment and also to know the status of construction of the project. And in reply the OPs expressed their inability informing the complainant that they willnot able to complete the said construction within specified time of June 2021 as mentioned in the MOU. In this circumstances a meeting was held between the parties on 11/01/2020. The complainant sent an email to the OPs expressing his dissatisfaction regarding the work progress of the said project and intimated the OPs that he is not interested to execute another MOU mentioning 36 months plus 6 months grace period of hand over of flat. Very next day the complainant again informed the OPs that they had changed their plan in 2019 without any communication with the complainant and therefore the complainant has no other choice to select available flat according to the new plan which is certainly not as per liking and specification of the complainant. Moreover the complainant came to know that OPs have accepted the booking amount without completing the necessary formalities and accordingly the complainant requested the OPs to refund the booking amount on 21/01/2020. OPs agreed to refund the same as per terms and conditions envisaged in the MOU and refunded only 10000/- through NEFT in the Bank amount of the complainant on 31/07/2020. As per Clause 6 of the MOU the complainant waited for six months to receive refund of deposited amount and served a notice vide email on 06/08/2020 to the OPs. But OPs remained unturned. Therefore the complainant has no other efficacious remedy but to move before this Commission.
OPs did not contested the consumer complaint despite service of notice. No WV is filed by the OPs within the statutory period. Thus, the case runs ex parte hearing against the OPs.
In support of his case the complainant has tendered evidence supported by affidavit and also relied upon documents annexed with the complaint petition. We have heard argument on merit and have also perused the record.
Evidently, the complainants had booked the said by paying an amount of Rs.6,00,000/- to the OPs on 07/10/2018 and 10/10/2018 vide cheques. There is also no doubt that OPs issued an allotment letter to the complainant on 26/08/2019. On perusal of the documents on record furnished by the complainant it is observed that in the MOU,executed between the parties on 11/10/2018, it is clearly mentioned that OPs have agreed to sale one 2BHK flat having an area of 750 sq.ft. more or less on the 3rd floor , Block no. 2 , Tower no. – 10, flat number – D to the complainant at the total consideration of Rs.21,00,000/- and the complainant paid the sum of Rs.6,00,000/-at the time of execution of MOU. Ld. Advocate for the complainant alleged the flat mentioned in the allotment letter issued by the OP to the complainant is not the same as mentioned in the MOU executed on 11/10/2018, rather unknown, non- agreed flat , specifically mentioned as 2BHK flat of 750 sq. ft. at Tower-25, 3rd Floor, Flat No. 3F in the same project. Photocopy of the said allotment letter support the contention. On perusal of the record it is found that OPs have changed their building plan without informing complainant and they were supposed to execute another MOU regarding the flat mentioned in the allotment letter and intend to defer to handover of possession of the said flat for three years. Photocopy of the MOU executed between the parties on 11/10/2018 goes to show that the flat in dispute was to be completed within June 2021.
It is true that that no WV has been filed by the OPs though several opportunities were given to them for filing WV but they have failed to file the same as such the allegation stated in the complaint petition remains unchallenged. Regarding this matter, we can safely state that on failure to file WV by the OPs tantamount to admission of the allegations stated in the complaint petition. Ld. Advocate for the complainant submitted that being dissatisfied by the OPs the complainant requested them to refund the deposited sum which was agreed by the OPs and accordingly the complainant submitted the APPLICATION FOR REFUND Of MONEY to the OPs. In reply OPs refund Only Rs.10,000/- to the complainant through NEFT. As per said Clause 6 of the MOUexecuted on 11/10/2018 it was agreed by the parties that:
In the event of this MOU/Booking of Unit, the Developer will refund the earnest money / or payment so far made by the Purchaser, after deducting 10% of amount paid before cancellation and any Govt. duties or Taxes, if accrued thereon. The refund shall be made after expiry of 6(six) months from the date of cancellation.
In view of the above facts it is observed by us that, it is very unfortunate that OPs have miserably failed to perform their responsibilities. It is not our expectation that the complainant by any means suffer from loss of money and time for the utter negligence on the part of the OPs. Under the above circumstances, unfair trade practice and the gross negligence and deficiency in service on the part of the OPs is proved and the complainant is entitled to get relief/ reliefs as prayed for.
Based on the above discussion we disposed of the consumer case in the following terms :-
1. OPs are directed to refund an amount of Rs.5,31,000/- (590000-59000=531000)to the complainant within 30 days from the date of this order.
2. OPs are further directed to make payment of RS.20,000/- as compensation for harassment and mental agony caused to the complainant due to deficiency in service.
3. OPs are also directed to pay Rs.10,000/-as cost of litigation to the complainant.
4. Above payments shall be made within 04 weeks from the date of this order failing which the amount shall carry interest @ 9% p.a. from the date of the order till its realization.
The instant Consumer Complaint is thus allowed on ex parte against the OPs.
Copy of the judgement be supplied to the parties as per rules. Judgement be uploaded on the website of this Commission forthwith for perusal of the parties.
