This complaint is filed by the Complainants u/S 35 of the Consumer Protection Act, 2019 alleging deficiency in service as well as unfair trade practice against the OPs, as the OPs did not take any step to refund them an amount of Rs.3,69,500/- till filing of this complaint.
The brief fact of the case of the Complainants is that being encouraged and allured with an advertisement published in Bengali daily newspaper, namely Anandabazar Patrika given by the OPs-Company desired to purchase a residential flat measuring about 750 sq. ft. on the 3rd floor of Priyamvada-4 of Royal Enclave at Hatisala Mouza, 24 Parganas (South-East) consisting of two bedrooms, one dinning cum living room, one kitchen, two toilets, one balcony and one covered car parking in Phase-1. Accordingly the Complainants purchased the application form from United Bank of India, Lake Town Branch by paying an amount of Rs.500/-. Thereafter an amount of Rs.2,00,000/- was paid by the Complainants through cheque being no-489653 of United Bank of India on 04.09.2015 as spot booking and allotment letter was issued on 04.01.2016 in favour of the Complainants to that effect. Thereafter the Complainants paid Rs.1,60,000/- on 11.03.2016 to the OPs. Subsequently an agreement for sale dated 28.07.2016 was executed by and between the Complainants and the OPs and the Complainants also paid Rs.9,000/- as 50% of legal charges. The booking challan of Rs.2,00,000/-, money receipts of Rs.1,60,000/- and Rs.9,000/- were issued by the OPs in favour of the Complainants. Thereafter the Complainants visited the project site on several times and gathered knowledge that the project at Hatisala was undergoing unnecessary sufferings and difficulties and thus the progress had been hampered and construction work stopped. The Complainants wrote a letter to the OPs on 20.11.2017, which was duly received by the OPs. Through the said letter the OPs were requested to refund the entire amount by cancelling the booking of the Complainants. Subsequently by issuing another letter on 27.02.2018 the Complainants made same request as earlier. In the meantime the Complainants received a letter dated 26.02.2018 through courier by which the OPs have accepted that the Hatisala project has been delayed and the OPs have offered to take flat in a new project at Huderait Mouza and it was also promised by the OPs that the said flat would be delivered on the same date as mentioned in the previous agreement for sale. Further the Complainants have received a letter dated 15.11.2018 from the OPs by which an alternative flat was offered to them and the Complainants were requested to contact the representatives of the OPs directly or visit the corporate office of the OP-1 so that discussion can be made for reaching at mutual benefit. Accordingly on 02.01.2019 an agreement for sale was executed by the between the Complainants and the OPs for purchasing a flat measuring about 750 sq. ft. super built up area more or less, north-east facing, 3rd floor, Tower-1, Flat-A along with the car parking and amenities at the proposed building in Phase-1, a part or portion of the housing complex namely Royal Enclave at Huderait Mouza for which the total consideration price was settled at Rs.19,75,000/-. In the said agreement it was clearly mentioned that the construction of the said flat will be completed within December 2019. Thereafter the Complainants visited the project site at Huderait Mouza on 06.09.2019 and to utter surprise the Complainants were informed by the OP-1 that the Complainants would be allotted flat in Tower-5 and there was no flat booked in the names of the Complainants at Tower-1 for which the Complainants have executed agreement for sale on 02.01.2019. This matter was duly informed to the OPs by the Complainants through letter dated 12.09.2019 and the Complainants also demanded the allotted flat to them according to the agreement for sale dated 02.01.2019. All on a sudden the Complainants received a letter dated 17.09.2019 from which the Complainants were informed that a flat measuring about 900 sq ft. has been allotted to the Complainants at Tower-1, 1st floor, Flat no-1B at Royal Enclave according to the application dated 28.09.2018, but the Complainants have never applied for any flat measuring about 900 sq. ft. at Tower-1, 1st floor, Flat no-1B. Moreover one sided cancellation of the agreement for sale dated 02.01.2019 was done by the OPs, which is arbitrary and illegal. By issuing a letter dated 19.09.2019 the Complainants have opposed the contention of the letter dated 17.09.2019 issued by the OPs. Suddenly through the letter dated 26.09.2019 the OPs have arbitrarily demanded Rs.12,19,998/- from the Complainants within 07 days for the said flat, which was illegal. By issuing a letter dated 28.09.2019 the Complainants sought for time for their study as the OPs were not willing and ready to give the flat which was booked by the Complainants according to the agreement for sale dated 02.01.2019 and was forcing them to enter into a fresh agreement. On 21.11.2019 the Complainants visited the project site and arrived at an amicable settlement and as per the request of the OPs a hand written letter dated 21.11.2019 were submitted by the Complainants and through the said letter it was requested to the OPs for preparation of necessary agreement for sale including all the points which were agreed upon. But the Complainants have neither received any agreement for sale nor received any communication from the OPs, hence the settlement dated 21.11.2019 was failed and vitiated. Thereafter through the letter dated 20.12.2019 the Complainants have communicated the OPs that the flat proposed by the OPs was not at all acceptable by them on the ground that the same is not as per their choice and after visiting the said flat the Complainants got dissatisfaction regarding the position of the flat. In the said letter it was also mentioned that they would take the flat which was booked initially according to the agreement for sale dated 02.01.2019. Inspite of receipt of the said letter the OPs did not bother to reply the same. Being totally disheartened and dissatisfied with the activities of the OPs the Complainants decided to cancel the booking of the said flat by cancelling the agreement for sale dated 02.01.2019and accordingly issued a letter dated 22.11.2020 to the OPs to refund the entire amount of Rs.3,69,500/- along with interest @12% p.a. from the date of payment i.e. 04.09.2015 along with compensation as due to deficient service of the OPs the Complainants have been facing financial loss and due to unscrupulous action of the OPs the dream of the Complainants has been shattered. As the OPs did not take any step to redress the grievance of the Complainants, finding no other alternative they have approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to refund them a sum of Rs.3,69,500/- as paid along with interest @12% p.a. on the said amount from 04.09.2015 till realisation, to pay compensation on account of mental agony and pain to the tune of Rs.2,00,000/- and litigation cost of Rs.50,000/- to them.
After admission hearing of this complaint notices were issued to the OPs through speed post and date was given on 15.03.2021 for ‘Service Return’ along with filing written version/s within 30 days from the date of receipt of the notice/s. On 15.03 2021 it was apparent from the track reports that the OPs have received the notices, but did not appear. Next date was given on 12.04.2021 for filing written version by the OPs. As on the said date no written version was forthcoming, the Ld. Commission was pleased to pass an order that the complaint will run exparte against all the OPs. On 12.08.2021 the Ld. Counsel for the Complainants had adduced evidence on affidavit along with BNA. On the said date the said Ld. Advocate also advanced argument.
We have carefully perused the petition of complaint along with the documents as available in the record, evidence, BNA and heard argument in full advanced by the Ld. Counsel for the Complainants. It is seen by us that being allured with an advertisement published in Bengali daily newspaper, namely Anandabazar Patrika given by the OPs-Company the Complainants desired to purchase a residential flat measuring about 750 sq. ft. on the 3rd floor of Priyamvada-4 of Royal Enclave at Hatisala Mouza, 24 Parganas (South-East facing) consisting of two bedrooms, one dinning cum living room, one kitchen, two toilets, one balcony and one covered car parking in Phase-1. Accordingly the Complainants have submitted the application form before the OPs after purchasing the same from United Bank of India, Lake Town Branch by paying an amount of Rs.500/-. Thereafter an amount of Rs.2,00,000/- was paid by the Complainants through cheque on 04.09.2015 as spot booking and allotment letter was issued on 04.01.2016 in favour of the Complainants to that effect. Thereafter the Complainants paid Rs.1,60,000/- on 11.03.2016 to the OPs. Subsequently an agreement for sale dated 28.07.2016 was executed by and between the Complainants and the OPs and the Complainants also paid Rs.9,000/- as 50% of the legal charges. The booking challan of Rs.2,00,000/-, money receipts of Rs.1,60,000/- and Rs.9,000/- were issued by the OPs in favour of the Complainants. Thereafter the Complainants visited the project site on several times and gathered knowledge that the project at Hatisala was undergoing sufferings and difficulties and thus the progress had been hampered and construction work stopped. The Complainants wrote a letter to the OPs on 20.11.2017, which was duly received by the OPs. Through the said letter the OPs were requested to refund the entire amount by cancelling the booking of the Complainants. Subsequently by issuing another letter on 27.02.2018 the Complainants made same request as earlier. In the meantime the Complainants received a letter dated 26.02.2018 through courier by which the OPs have accepted that the Hatisala project has been delayed and the OPs have offered to take flat in a new project at Huderait Mouza and it was also promised by the OPs that the said flat would be delivered on the same date as mentioned in the previous agreement for sale. Further the Complainants have received a letter dated 15.11.2018 from the OPs by which an alternative flat was offered to them and the Complainants were requested to contact the representatives of the OPs directly or visit the corporate office of the OP-1 so that discussion can be made for reaching at mutual benefit. Accordingly on 02.01.2019 an agreement for sale was executed by the between the Complainants and the OPs for purchasing a flat measuring about 750 sq. ft. super built up area more or less, north-east facing, 3rd floor, Tower-1, Flat-A along with the car parking and amenities at the proposed building in Phase-1, a part or portion of the housing complex namely Royal Enclave at Huderait Mouza for which the total consideration price was settled at Rs.19,75,000/-. In the said agreement it was clearly mentioned that the construction of the said flat will be completed within December 2019. Thereafter the Complainants visited the project site at Huderait Mouza on 06.09.2019 and to utter surprise the Complainants were informed by the OP-1 that the Complainants would be allotted flat in Tower-5 and there was no flat booked in the names of the Complainants at Tower-1 for which the Complainants have executed agreement for sale on 02.01.2019. This matter was duly informed to the OPs by the Complainants through letter dated 12.09.2019 and the Complainants also demanded the allotted flat to them according to the agreement for sale dated 02.01.2019. All on a sudden the Complainants received a letter dated 17.09.2019 from which the Complainants were informed that a flat measuring about 900 sq ft. has been allotted to the Complainants at Tower-1, 1st floor, Flat no-1B at Royal Enclave according to the application dated 28.09.2018, but the Complainants have never applied for any flat measuring about 900 sq. ft. at Tower-1, 1st floor, Flat no-1B. Moreover one sided cancellation of the agreement for sale dated 02.01.2019 was done by the OPs, which is arbitrary and illegal. By issuing a letter dated 19.09.2019 the Complainants have opposed the contention of the letter dated 17.09.2019 issued by the OPs. Suddenly through the letter dated 26.09.2019 the OPs have arbitrarily demanded Rs.12,19,998/- from the Complainants within 07 days for the said flat, which was illegal. By issuing a letter dated 28.09.2019 the Complainants sought for time for their study as the OPs were not willing and ready to give the flat which was booked by the Complainants according to the agreement for sale dated 02.01.2019 and was forcing them to enter into a fresh agreement. On 21.11.2019 the Complainants visited the project site and arrived at an amicable settlement and as per the request of the OPs a hand written letter dated 21.11.2019 were submitted by the Complainants and through the said letter it was requested to the OPs for preparation of necessary agreement for sale including all the points which were agreed upon. But the Complainants have neither received any agreement for sale nor received any communication from the OPs, hence the settlement dated 21.11.2019 was failed and vitiated. Thereafter through the letter dated 20.12.2019 the Complainants have communicated the OPs that the flat proposed by the OPs was not at all acceptable by them on the ground that the same is not as per their choice and after visiting the said flat the Complainants got dissatisfaction regarding the position of the flat. In the said letter it was also mentioned that they would take the flat which was booked initially according to the agreement for sale dated 02.01.2019. Inspite of receipt of the said letter the OPs did not bother to reply the same. Being totally disheartened and dissatisfied with the activities of the OPs the Complainants decided to cancel the booking of the said flat by cancelling the agreement for sale dated 02.01.2019and accordingly issued a letter dated 22.11.2020 to the OPs to refund the entire amount of Rs.3,69,500/- along with interest @12% p.a. from the date of payment i.e. 04.09.2015 along with compensation as due to deficient service of the OPs the Complainants have been facing financial loss and due to unscrupulous action of the OPs the dream of the Complainants has been shattered. As the OPs did not take any step to redress the grievance of the Complainants, hence this complaint is initiated by the Complainants praying for certain reliefs along with refund of the paid amount along with interest thereon.
It is seen by us that initially the Complainants booked the flat from the OPs at Hatisala Mouza. Due to abandon of the said project the Complainants agreed to take flat at Huderait Mouza, therefore it is clear that the Complainants have extended their co-operation to that effect. Inspite of execution of the agreement for sale and payment of partial amount, the OPs have taken pleas one after another and in this manner ultimately the OPs did not provide them the physical possession in the booked flat. The total consideration was settled at Rs.19,75,000/- and out of which they paid a sum of Rs.3,69,500/- in pursuance to the terms and conditions of the agreement for sale. The Complainants booked the flat measuring about 900 sq. ft. as per their requirement and capacity, but the OPs without giving them the said flat asked them to take a flat measuring about 900 sq. ft., sometimes the Complainants were directed to pay an extra amount of Rs.12,19,998/- etc. So it is clear to us that without handing over the flat to the Complainants, the OPs tried to harass them for a prolonged period. During physical visit at the site the Complainants came to know that the flat booked by them was not at all actually booked in the said project, then having no other alternative the Complainants were asked to take another flat having separate specification. With such action of the OPs the Complainants are being disheartened and dissatisfied filed prescribed application to the OPs requesting to refund the paid amount along with interest. But inspite of receipt of the application the OPs did not bother to take any step, rather kept themselves completely silent over this issue after taking the partial payment from the Complainants.
We have noticed that in the terms and the conditions there is a clause for cancellation of the booking. In pursuance of the said condition the Complainants have submitted application to the OPs praying for refund of the paid amount after cancellation of the agreement. In this context we are of the view that due to misconduct and illegal activities the OPs the Complainants being compelled filed the application praying for cancellation and refund and in this respect we do not find any mal-intention on behalf of the Complainants. For getting refund of the paid amount of Rs.3,69,500/-the Complainants have made several written correspondences, but the OPs did not bother to take any fruitful step nor replied to that correspondences. In our opinion that as due to deficiency in service as well as illegal activities of the OPs the Complainants have to submit the application requesting to refund the paid amount after cancellation of the agreement, the Complainants are legally entitled to get refund of the paid amount of Rs.3,69,500/- from the OPs.
Now we are to adjudicate as to whether the Complainants are at all entitled to get any interest on the paid amount or not. During argument the Ld. Counsel for the Complainants has attracted our notice to the terms and conditions of the agreement, from where it is evident that if the agreement is cancelled due to failure of the OPs, then the OPs shall be liable to refund the paid amount to the intending purchaser along with an interest @12% p.a. on the said amount. In the case in hand from the facts it is clear that due to failure on the part of the OPs the Complainants being frustrated and compelled have requested to refund their paid amount after cancellation of the agreement. Therefore in view of the terms and conditions of the agreement the OPs are bound to pay interest @12% p.a. on the paid amount to the Complainants. As the agreement for sale was executed by and between the Complainants and the OPs and both parties put their respective signatures, at this juncture they cannot go beyond the terms and the conditions of the agreement for sale.
Admittedly as the grievance of the Complainants have not been redressed by the OPs for a prolonged period, having no other alternative the Complainants have approached before the Court of Law for their redressal and by filing this complaint they have to incur some expenses, for which the Complainants are entitled to get litigation cost from the OPs.
Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-CC/392/2020 is thus allowed exparte against the OPs with cost.
The OPs shall refund either jointly or severally an amount of Rs.3,69,500/- to the Complainants along with interest @12% p.a.in the form of compensation on the said amount for the period from 28.07.2016 i.e. the date of last payment till the date of entire realization of the amount within 45 days from the date of passing this judgment along with litigation cost of Rs.15,000/- to the Complainants within 45 days from the date of passing this judgment, in default the Complainants will be at liberty to put the entire decree in execution as per provision of law.
Let plain copy be given to the parties free ossf cost as per the CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
