Date of Filing : 09/02/2023
Date of Judgment : 30/10/2024
Sri Manish Deb, Hon’ble Member
That the OP No.1 is a registered private limited and is engaged in construction of housing complex and the OP No.2 and OP No.3 are the Directors of the said company and look after the business day to day affairs.
That the OPs undertook the job of construction of housing complex known as ‘DHARITRI BLISS VILLE’ comprising of plots, units, car parking spaces etc.. having other common amenities and facilities to be appended thereto in the said housing complex at Mouza – 630, 631, 632 and 633 appertaining to R.S. Khatian No.1851 and other R.S.Dag Nos. and Khatians under the Police Station of Rajarhat within the limits of Chandpur Gram Panchayet and Office of Additional District Sub-Registrar at New Town in the District of North 24 Parganas.
That the complainant being interested to purchase a self contained Bungalow at the said housing complex under the name and style of ‘DHARITYRI BLISS VILLE’ against consideration and accordingly applied for the same.
That the OPs on receiving the said application and on receiving the application money of Rs.6,00,000/- allotted the unit being No.A-95.
That in terms of the said purchase of Bungalow by the complainant one Memorandum of Understanding was executed on 02.04.2018.
That in terms of said Memorandum of Agreement the value of the said unit was fixed at Rs.31,50,000/-and advance payment by complainant out of which i.e Rs.6,00,000/- has been acknowledged and admitted by the OPs in the said Memorandum of Understanding.
That in terms of said memorandum of understanding the period for completion of the project was fixed by 42 months from the date of signing of memorandum of understanding.
That the complainant however found that no progress of the construction work of project i.e bungalow has been made completed and there was no chance of handing over of possession within the assured time as per memorandum of understanding and as such applied for refund of the deposited amount.
That the complainant submitted the said application for refund as per application form provided by the opposite parties on 04.09.2019.
That the opposite parties duly acknowledged the said application for refund and assured the complainant to refund the deposited amount by 10 to 11 instalments vide their communication dated 01.10.2021.
That the opposite parties inspite of elapsing the said assured period of refund of the deposited amount did not take any step whatsoever in respect of such assurance of the refund of the deposited amount to the complainant.
That the OPs has failed and neglected to complete the project within the assured time and considering such failure asked the complainant to make application for refund but finally did not pay the said amount of the complainant and thereby committed negligence and deficiency in service on their part.
That the complainant several times requested the opposite parties to refund the deposited amount to the complainant as the opposite parties could not complete the project within the assured time and also considering the settled law that a person cannot wait for an indefinite period for getting possession due to latches and lapses of the developer/builder
That the complainant finally issued the notice through the Ld. Advocate on 07.06.2022 asking them to refund the deposited amount along with interest thereon from date of payment till realization but the OPs inspite of receiving such notice no step has been taken from their part.
That the complainant finding no other alternative and under such compelling circumstances has to come up with this application before this commission for necessary relief and accordingly prays for an order directing the OPs to pay the deposited amount of Rs.6,00,000/- along with 12% interest thereon from the date of payment till realization.
That complainant thus has to come before this Commissioner to get relief through order direction upon OPs to return back the advance amount in favour of the complainant in respect of the plot as mentioned in the schedule of the sale agreement / MOU and the petitioner is also prayed to get compensation for suffering pain and mental agony due to negligence and deficiency of service on the part of the OPs.
POINTS FOR DECISION are
- Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act, 2019.
- Whether the complainant is within limitation under C.P. Act, 2019.
- Whether the commission has the jurisdiction to decide the present complainant.
- Is the case is maintainable or not.
- Is the complainant is entitled to get relief as prayed for.
OBSERVATION
The complainant fall in the category of the “consumer” under C.P. Act, 2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The main question for consideration before us is whether the opposite parties is deficient by not completing the project and bungalow with in time as stated in the compliant petition.
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged as the complainant.
And we considered that entitlement of getting relief sought by the complainant is also affirmative.
The complainant has submitted his evidence, brief note of argument in the case.
The complainant has adduced evidence together with copy of documents which includes money receipt.
The complainant filed one agreement with the OPs and the advance payment receipt receipts issued by both the OPs and also copy of MOU and also filed a copy of the notice of the Ld. Advocate for the complainant.
The opposite parties are not appeared in the instant case not filed their written version as well as evidence in spite of good service of notices, even not argued the matter.
We have applied our mind and meticulously gone through the materials on records.
It is crystal clear from the application form submitted by the complainant to OPs that being allured by the advertisement of OPs, the complainants decided to purchase the said plot for residential purpose but in course of time they realized that the OPs wilfully left the scenario after receiving Rs.6,00,00/- from the complainant without performing/rendering the service for which the payment was made to them.
Now it is pertinent to consider the gravity of mental agony and harassment to the complainant caused by the deficiency in service by the OPs for prolonged period of years during which the OPs miserably failed to take any step towards any progress of the project.
We feel that acts and omissions on behalf of the OPs reflect an unambiguous character of unfair trade practice adopted by the OPs with the intent/motive of deceiving the complainant and it needless to mention, to what extent such act on the part of OPs created mental agony and harassment towards the complainant. Since the OPs did not contest, the evidence and documents adduced by the complainant remains unchallenged.
In our opinion, the complainant has successfully proved his case and therefore eligible to get relief(s). Since more than several years have already elapsed we are of the opinion that handing over of the plot to the complainant in near future would not be practicable.
Hence it is
ORDERED
CC No.69 of 2023 is allowed ex parte against all OPs with cost with the direction that
(i) OPs shall refund the amount of Rs. 6,00,000/- along with interest @9% p.a. for the period from the date of receipt of the said amount to the date of actual payment within 60 days from the date of this order.
(ii) OPs also directed to pay a sum of Rs.1,00,000/- to the complainant as the compensation within 60 days from the date of this order.
(iii) OPs are further directed to pay Rs.20,000/- towards cost of litigation to the complainant within 60 days from the receipt of this order.
If the OPs fail to make above payment within the stipulated period, the complainant will be at liberty to file case execution at per law.
Dictated and corrected by
Member
