HON’BLE MR.JUSTICE MANOJIT MANDAL, PRESIDENT
The Complaint case U/s 17 of the C.P.Act 1986 has been filed against the OP claiming physical possession of the completed flat with car parking space, to register the Deed of conveyance, completion certificate alternatively to refund the amount paid along with compensation etc.
Briefly stated, the facts of the case are that the Opposite Party a Construction company running a business of developing project and constructing ownership apartments in the city, under name and style of M/s DHARITRI INFRAVENTURE PVT.LTD. and having its registered office at D/N-51, Merlin Infinite, 8th floor, Suite-805, Sector-V, Salt Lake City , Kolkata 700 091. The complainant was allured by the attractive advertisement so published in the form of a brochure by the OP/Developer and subsequently the complainant have decided to purchase a flat at one of the projects of the said Opposite Party at Rajarhat, Bhagawanpur, South 24 Parganas, Kolkata. The complainant had submitted an application for registration of the said flat and the said application was registered and the complainant was allotted one flat being No.F which consists of 3 Bed rooms, one Hall room and one kitchen on the 4th floor , Block-5, measuring 700 sq.ft. approximately together with a car parking space at “Dharitri Universia Project” for a total consideration of Rs.15,50,000/- (Rupees fifteen lakh fifty thousand) i.e. Rs.2214/- per sq.ft. by the OP/Developer as per terms and conditions which are mentioned in the said application for registration of flat for Dharitri Universia Project. On 10.5.2017 the complainant had already paid a token amount of Rs.10,000/- (Rupees ten thousand) while booking the said flat. In addition thereto the complainant made further payment of Rs.1,45,000/- (Rupees one lakh forty five thousand) on 22.05.2017 to the OP/Developer. The complainant found that the progress of the said construction was far from initiation and there was not a single construction work done or even initiated in the said project. The complainant had repeatedly requested for providing necessary legal documents of the land but the OP/Developer failed to extend their co-operation in this regard. The complainant again and again had called up the OP/Developer when the said OP/Developer would be in a position to hand over possession of the said flat/apartment together with car parking space to them but the Opposite Party however for reasons best known to him had preferred to ignore such requests of the complainant. The complainant has again and again expressed her willingness to take possession of the said flat together with car parking space upon payment of the booking amount but the OP/Developer has failed to extend his co-operation and hand over the completed apartment and such other amenities and facilities till date. Finding no other alternative, the complainant had applied for refund of the money of the booking amount on 06.8.2018 and said application for refund of money was duly received by the OP but the Op /Developer did not refund the money. The complainant wishes to take possession of the flat together with car parking space provided a specific date is assured as to when the said OP/Developer intends to initiate construction. On 24.2.2019 the complainant sent legal notice to the OP/Developer through Ld. Advocate Binota Roy but unfortunately despite receiving such legal notice the opposite party did not think it proper to reply such notice. Hence this case.
In this case notice was duly served upon the Opposite Party but unfortunately the OP did not file Written version and he did not turn up to contest the case. So, the Complaint Case has been heard exparte.
DECISION WITH REASONS :
Having heard the ld. Advocate for the complainant and on going through the materials placed before us it emerges that the complainant entered into an agreement with the Opposite party for purchasing a flat being No. F which consist of 3 bed rooms, one Hall room, one kitchen in Block-5 measuring 700 sq.ft. together with car parking space for a total consideration of Rs.15,50,000/- (Rupees fifteen lakh fifty thousand) . The complainant has paid a sum of Rs.1,55,000/- (Rupees one lakh fifty five thousand) to the Opposite Party but the construction of the said flat was far from initiation and there was not a single construction work done or even initiated in the said Project named M/s Dharitri Universa. Being aggrieved, the complainant has filed this case.
To prove the case complainant has produced the evidences on affidavit of Mrs. Aktar Zahani. She has duly corroborated the case of the complainant. There is nothing on record to disbelieve her evidence.
In the present case, this complainant has made allegation that the progress of the said construction work was far from initiation and there was not a single construction work done or initiated in the said project. The Opposite party has not appeared in this case to submit Written version . So in our view, the observation of Hon’ble National Commission reported in 2017(4) CPR page 590 (NC) that intention of non-filing of written version amounts to admission of allegation leveled in complaint. So, in view of the Hon’ble National Commission’s judgement, we find that the allegation made in the Petition of complaint by the complainant will be treated as admission of the Opposite party in respect of the allegation made in the Petition of complaint. Moreover we do not find any reason to disbelieve the unchallenged contents of the Petition of complaint and the evidence of Mrs. Aktar Zahani
In IV 2016 CPJ 328 (NC) Hon’ble National Commission held thus –
“ Para 9. As far as the allottees in tower E & F are concerned , they have already sought refund as an alternative relief, along with compensation under several heads. Therefore, we have no hesitation in holding that in the facts and circumstances of the case the allottees in both the complaints are entitled to refund of the money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them. They are also entitled to appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the opposite party to deliver possession of the flats booked by them. In this regard, it is to be kept in mind that a person books a residential flat for the purpose of having a roof over his head, and in the hope that on completion of the construction within the time promised by the builder he will be able to live in a house of his own. Therefore, he is bound to feel disappointed and frustrated when the builder does not deliver upon its promise for years together”
In 2016(3) CPR 279 (NC) Hon’ble National Commission held thus –
“ Para 10. Since the opposite party has failed to offer possession of the flat agreed to be sold to the complainants by the date stipulated in the Buyers Agreement in this regard and 5/6 years have already expired from the said committed date for delivery of possession. The complainants cannot be compelled to wait any more for the builder to deliver and they are entitled to seek refund of the money paid by them along with appropriate compensation.”
In view of the above decisions of the Hon’ble National Commission, we hold that the complainant is entitled to refund of the money paid by her along with appropriate compensation in the form of interest for the financial loss and for mental agony and harassment suffered by her on account of the failure of the Opposite party to deliver possession of the flat booked by her.
So we hold that there is deficiency in service on the part of the OP in the matter of construction of flat and delivery of possession as per terms and conditions of the agreement. In the result the Complaint case succeeds.
Hence,
ORDERED
That the Complaint case no. CC/327/2019 be and the same is allowed exparte against the Opposite Party. The Opposite Party is hereby directed to refund the amount of Rs.1,55,000/- (Rupees one lakh fifty five thousand) to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the date of each payment till the date on which the entire amount along with compensation is paid in the form of compensation .
The Opposite party shall pay Rs.10,000/- (Rupees ten thousand) as cost of litigation.
The payment in terms of this order shall be made within three months from this day.
If the Opposite party fails to comply with the direction made above within the period mentioned above, then the complainant is at liberty to get the order implemented with due course of law.
Let a plain copy of judgement be given to the petitioner free of cost and a copy also be served upon the Opposite party by registered post/speed post with A/d as early as possible.
