PER: HON’BLE MR. SAMARESH P RASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint under Section 17 ( Wrongly mentioned u/s 12) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of an intending purchaser against the developer on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
Succinctly put, Complainant’s case is that the Complainant entered into an agreement with the O.Ps. to purchase of a 2K (1100 s.q.ft) Bungalow being No. C-46 with other facilities and amenities in a complex named “Royal Enclave” lying and situated at R.S Dag No. 1323, R.S. Khaitan No. 413 , within Mouja – Hatishala , P.S. – Kolkata Leather Complex (KLC) , District – South 24 Parganas within the local limits of Bhangar -2 Gram Panchayat at a total consideration of Rs.32,00,000/- . The Complainants submitted the application form along with application money of Rs. 3,20,000/- i.e. 10% of total consideration amount. As per terms of the agreement , the OPs were under obligation to handover the possession of plot within 2 years and possession of Bungalow within 2.5 years. The Complainant has alleged that even after considerable period , the entire area was found vacant for which a suspicion arose in mind of the complainant . After receipt of an intimation letter dated 22.01.2016 from OP No. 2 , complainant visited the site and found no trace of any construction work on the plot . The complainant has stated that he approach the OP to ascertain when the construction will be started but all the attempts went in vain excepting some vague assurances . Hence, the complainant has come up in this commission with prayer for following reliefs, viz.- (a) an order directing the OPs to refund Rs. 3,20,000/- with an interest @ 24% p.a. ; (b) an order directing the OPs to pay Rs. 13,000/- per month for incurring house rent from the time of booking till refund ; (c) compensation of Rs. 5,00,000/- for harassment and mental agony ; (d) litigation cost etc.
The OPs have neither appeared nor filed written version . The notices issued upon them could not be served in the ordinary way and ultimately by way of publication in a leading daily newspaper published from Kolkata dated 25.06.2018 , the service upon the OPs could be effected .
In support of his case , Complainant has tendered evidence on affidavit . Besides the same , complainant has relied upon several documents like applicants copy , allotment letter , receipt of payment etc.
The unchallenged evidence of the complainant clearly leads us to presume that the complainant had applied for a Bungalow of 2K (1100 sq.ft.) from the O.Ps. who are builders / developers . On 13.08.2015 the complainant has made a payment of Rs. 3,20,000/- as an advance amount to purchase of plot /bungalow being No. C-46 with other facilities and amenities in a complex named “Royal Enclave” lying and situated at R.S Dag No. 1323, R.S. Khaitan No. 413 , within Mouja – Hatishala , P.S. – Kolkata Leather Complex (KLC) , District – South 24 Parganas within the local limits of Bhangar -2 Gram Panchayat at a total consideration of Rs.32,00,000/- . Evidently, complainant has paid Rs.3,20,000/- to OP No. 2 against which a receipt has been issued by OP No. 2 Royal Infra Developer .
Needless to say, the parties are bound by the terms of agreement. As per agreement, the OPs were under obligation to handover the plot possession of plot within 2 years and possession of Bungalow within 2.5 years. The OPs have failed to keep their promise . Now, they are found not traceable . In fact, the OPs have not appeared to contradict the statements of complainant .
On evaluation of materials on record, it transpires that the complainant being ‘consumer’ as defined in Section 2(1)(d) of the Act hired the services of OPs on consideration and OPs have failed to fulfil their part of obligations and thereby deficient in rendering services towards the complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainant is entitled to some reliefs. In our view, a direction upon OP No.2( developer, who have received money of Rs. 3,20,000/- from the complainant ) to refund the said amount along with compensation in the form of interest @ 9% p.a. from the date of payment till its realization will meet the ends of justice . As the situation compelled the complainant to lodge complaint in order to get refund of the amount paid by them , he is also entitled to litigation cost which we quantify at Rs.5,000/-.
With the above discussion, the complaint is allowed ex-parte with the following directions –
- The opposite party no.2 is directed to refund Rs. 3,20,000/- along with compensation in the form of simple interest @ 9% p.a in favour of complainant from the date of payment i.e. from 13.08.2015 till its realization .
- The opposite party no.2 is directed to pay Rs.5,000/- as cost of litigation to the complainant,
- The above payments must be paid within 30 days from the date of communication of order.
