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 intending purchasers against the developer on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
Succinctly put, Complainants’ case is that the Complainants entered into an agreement with the O.Ps. to purchase of a 2K (1100 s.q.ft) Bungalow being No. C-28 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 Complainants have alleged that even after considerable period, the entire area was found vacant for which a suspicion arose in mind of the complainants . After receipt of an intimation letter dated 22.01.2016 from OP No. 2 , complainant No. 2 visited the site and found no trace of any construction work on the plot . The complainants have stated that they approach the OP to ascertain when the construction will be started but all the attempts went in vain excepting some vague assurances . Hence, the complainants have 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. 16,000/- 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 their case , Shri Parijat Chaki, Complainant No. 2 has tendered evidence on affidavit on behalf of himself and also on behalf of his mother i.e. complainant No. 1 . Besides the same , complainants have relied upon several documents like applicants copy , allotment letter , receipt of payment etc.
The unchallenged evidence of the complainants clearly leads to presume that the complainants had applied for a Bungalow of 2K (1100 sq.ft.) from the O.Ps. who are builders / developers . On 10.08.2015 the complainants have made a payment of Rs. 3,20,000/- as an advance amount to purchase of plot /bungalow being No. C-28 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, complainants have paid Rs.3,20,000/- to O.P. 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 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 complainants.
On evaluation of materials on record, it transpires that the complainants 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 complainants within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainants are 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 complainants ) 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 complainants to lodge complaint in order to get refund of the amount paid by them , they are 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. from the date of payment i.e. from 10.08.2015 till its realization .
- The opposite party no.2 is directed to pay Rs.5,000/- as cost of litigation to the complainants,
- The above payments must be paid within 30 days from the date of communication of order.
