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.6,07,348/- 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 on 29.08.2015 the Complainants desired to purchase a residential flat measuring about 1019 sq. ft. on the 2nd floor of Arundhuti-2 of Royal Enclave at Hatisala Mouza, 24 Parganas (South). 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-000011 of HDFC Bank on 31.08.2015 as spot booking and booking challan and money receipt dated 31.08.2015 was issued by the OP-1 and 2 in favour of the Complainants. Subsequently allotment letter was issued on 08.01.2016 in favour of the Complainants to that effect. Thereafter a MOU dated 16.02.2016 and an agreement for sale dated 29.04.2017 were executed by and between the Complainants and the OPs. The Complainants also paid a sum of Rs,35,000/- through a cheque of Allahabad Bank on 05.09.2015, Rs.3,59,120/- through a cheque of Cananra Bank dated 15.03.2016 and a sum of Rs.12,228/- through a cheque of Allahabad Bank on 05.05.2017. The Complainants have also paid a sum of Rs.500/- for completion of the formality of the MOU. Thus the Complainants have paid a sum of Rs.6,07,348/- in total for purchasing the flat from the OPs. According to the terms of the Agreement for Sale it is mentioned that “……………the vendor fails to construct the designated unit within the stipulated period, then the vendor shall be automatically allowed and extension of 6 months in case of failure on the part of the vendor to construct the designated unit within such extended period then and only in such event, the vendor shall be liable to pay to the purchaser/s a monthly sum calculated @ Rs.1/- per sq. ft. per of the carpet area of the said unit for the period of delay beyond the extended grace period provided that the purchaser/s shall be entitled at any time after the expiration of the extended grace period to cancel the contract placed hereunder by a notice in writing. In the event of such cancellation, the vendor shall refund the entire earnest money until then paid by the purchaser/s to the vendor with interest thereon @12% p.a. within 15 days of such cancellation.” Through a letter dated 26.03.2018 the Complainants were informed by the OPs that the project at Hatisala Mouza was undergoing unnecessary sufferings and difficulties and thus the progress has been hampered and construction work has stopped. Thus it is admitted that the delay in construction work was done on the part of the vendors. Through the abovementioned letter dated 26.03.2018 the OPs have also offered the Complainants the choice of an alternative option and the Complainants having no other alternative accepted the offer made by the OPs as they were assured by the OPs that the terms and the conditions of the previous Agreement for Sale dated 14.06.2017 would be abided by the OPs in the alternative option also. Moreover the OPs also handed over some papers relating to the land property of the project at Huderait Mouza to the Complainants. The Complainants also came across a newspaper publication dated 15.07.2018 in Anandabazar patrika about the project of the OPs at Huderait Mouza at 24 Parganas (North). To utter surprise of the Complainants the OPs on 23.04.2018 whimsically and arbitrarily issued a letter to the Complainants mentioning that the sale agreement was executed on 30.03.2018 between the Complainants and the OPs regarding flat in Royal Enclave is not correct and through the same letter the OPs also demanded an amount of Rs.1,56,308/- from them maliciously without issuing any allotment letter or agreement. On 28.05.2018 the OPs issued an allotment letter in favour of the Complainants regarding a flat measuring about 1019 sq ft, 3 BHK, Block-1, Flat-A, on the 2nd floor at Royal Enclave at Huderait Mouza, Action Area-III, New Town, North 24 Parganas at a consideration price of Rs.24,45,600/- and further Rs.1,50,000/- for amenities. Again on 18.01.2019 another allotment letter was issued in favour of the Complainants regarding a flat measuring about 1019 sq.ft at Block-1, Tower-1, Flat-A, on the 2nd floor at Royal Enclave at Huderait Mouza, North 24 Parganas at a consideration price of Rs.24,45,600/-, Rs.1,50,000/- for amenities and Rs.2,50,000/- for covered car parking. Thereafter the Complainants visited the project site to enquire about the progress of the construction work and contacted the OPs over telephone, but they became very shocked to know that no flat has been allotted to them officially at Tower-1, Block-1 of Royal Enclave at Huderait Mouza and subsequently they received an e-mail from the OPs on 26.09.2019 wherein it was mentioned that some other flats were available and the Complainants were to opt between those options which were at Tower no-24, on the 1st floor/Flat no-1A (South-East) and at the Tower no-32, on the 4th floor/Flat no-4A (North-East), 4G (North-West), 4H (South-West). It was unexpected to the Complainants that even after issuing of the allotment letter how can the said flat is not allotted to them. After receipt of the e-mail dated 30.09.2019 the Complainant became very much disappointed with such attitude and behavior of the OPs and decided to cancel the booking of the flat and get refund of the paid amount from the OPs. Accordingly the Complainants have issued a letter dated 22.11.2019 along with an application for refund of the money according to the terms and conditions of the agreement for sale. But the OPs did not make any response. Again the Complainants issued a letter dated 06.01.2020 mentioning the account details in which the Complainants were willing to take the refund amount, but no steps were taken by the OPs towards refund of the amount. On 09.07.2020 the Complainants issued an e-mail to that effect and though on several occasions the representatives of the OP-1 and 2 contacted with the Complainants over telephone giving assurance that the amount would be refunded shortly, but in this connection no written correspondences were issued on behalf of the OPs nor took any step to refund the paid amount to the Complainants. For such unscrupulous action of the OPs the Complainants has been suffering from financial stringency. At last the Complainants have issued legal notice through their Ld. Advocate on 04.09.2020 to the OPs demanding the paid amount by them to the OPs, but the OPs did not pay any heed to their request nor replied the said Advocate’s letter. As the OPs did not take any step to redress the grievance of the Complainants, hence finding no alternative they have approached before this Ld. Commission by filing this complaint praying for direction upon the OPs to refund them an amount of Rs.6,07,348/- along with interest @12% p.a. on the said amount from 31.08.2015 till entire realization, To pay Rs.2,00,000/- as compensation due to harassment, mental agony and pain 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 11.01.2021 for ‘Service Return’ along with filing written version/s within 30 days from the date of receipt of the notice/s. On 11.01.2021 as the notices were not served upon the OPs, the Ld. Commission was pleased to adjourn the matter on 25.01.2021. On 25.01.2021 it was seen by the Ld. Commission that inspite of receipt of the notices, the OPs were absent on calls. As the statutory period for filing written version was not over, further time was given to the OPs for filing written version on 15.03.2021. On 15.03.2021 though the OPs did not appear, further time was allowed for filing written version by the OPs on 12.04.2021. As on the said date also none was present on behalf of the OPs, the Ld. Commission was pleased to fix on 02.08.2021 for adducing evidence by the Complainants. On 12.08.2021 the Ld. Counsel for the Complainants has adduced evidence on affidavit along with the BNA. On 12.08.2021 also none was present on behalf of the OPs.
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 on 29.08.2015 the Complainants were inclined to purchase a residential flat measuring about 1019 sq. ft. on the 2nd floor of Arundhuti-2 of Royal Enclave at Hatisala Mouza, 24 Parganas (South). 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 drawn on HDFC Bank on 31.08.2015 as spot booking and accordingly the booking challan and money receipt dated 31.08.2015 was issued by the OP-1 and 2 in favour of the Complainants. Subsequently allotment letter was issued on 08.01.2016 in favour of the Complainants to that effect. Thereafter a MOU dated 16.02.2016 and an agreement for sale dated 29.04.2017 were executed by and between the Complainants and the OPs. The Complainants also paid a sum of Rs,35,000/- on 05.09.2015, Rs.3,59,120/- on 15.03.2016 and a sum of Rs.12,228/- on 05.05.2017 through three different cheques. The Complainants have also paid a sum of Rs.500/- for completion of the formality of the MOU. Thus the Complainants have paid a sum of Rs.6,07,348/- in total for purchasing the flat from the OPs. But through a letter dated 26.03.2018 the Complainants were informed by the OPs that the project at Hatisala Mouza was undergoing unnecessary sufferings and difficulties and thus the progress has been hampered and construction work has stopped. In the abovementioned letter dated 26.03.2018 the OPs have also offered the Complainants the choice of an alternative option and the Complainants having no other alternative accepted the offer made by the OPs as they were assured by the OPs that the terms and the conditions of the previous Agreement for Sale dated 14.06.2017 would be abided by the OPs in the alternative option also. Moreover the OPs also handed over some papers relating to the land property of the project at Huderait Mouza to the Complainants. The Complainants also came across a newspaper publication dated 15.07.2018 in Anandabazar patrika about the project of the OPs at Huderait Mouza at 24 Parganas (North). To utter surprise of the Complainants the OPs on 23.04.2018 whimsically and arbitrarily issued a letter to the Complainants mentioning that the sale agreement was executed on 30.03.2018 between the Complainants and the OPs regarding flat in Royal Enclave is not correct and through the same letter the OPs also demanded an amount of Rs.1,56,308/- from them maliciously without issuing any allotment letter or agreement. On 28.05.2018 the OPs issued an allotment letter in favour of the Complainants regarding a flat measuring about 1019 sq ft, 3 BHK, Block-1, Flat-A, on the 2nd floor at Royal Enclave at Huderait Mouza, Action Area-III, New Town, North 24 Parganas at a consideration price of Rs.24,45,600/- and further Rs.1,50,000/- for amenities. Again on 18.01.2019 another allotment letter was issued in favour of the Complainants regarding a flat measuring about 1019 sq.ft at Block-1, Tower-1, Flat-A, on the 2nd floor at Royal Enclave at Huderait Mouza, North 24 Parganas at a consideration price of Rs.24,45,600/-, Rs.1,50,000/- for amenities and Rs.2,50,000/- for covered car parking. Thereafter the Complainants visited the project site to enquire about the progress of the construction work and contacted the OPs over telephone, but they became very shocked to know that no flat has been allotted to them officially at Tower-1, Block-1 of Royal Enclave at Huderait Mouza and subsequently they received an e-mail from the OPs on 26.09.2019 wherein it was mentioned that some other flats were available and the Complainants were to opt between those options which were at Tower no-24, on the 1st floor/Flat no-1A (South-East) and at the Tower no-32, on the 4th floor/Flat no-4A (North-East), 4G (North-West), 4H (South-West). It was unexpected to the Complainants that even after issuing of the allotment letter how the flat was allotted to another. After receipt of the e-mail dated 30.09.2019 the Complainant became very much disappointed with such attitude and behavior of the OPs and decided to cancel the booking of the flat and get refund of the paid amount from the OPs. Accordingly the Complainants have issued a letter dated 22.11.2019 along with an application for refund of the money according to the terms and conditions of the agreement for sale. But the OPs did not make any response. Again the Complainants issued a letter dated 06.01.2020 mentioning the account details in which the Complainants were willing to take the refund amount, but no steps were taken by the OPs towards refund of the amount. On 09.07.2020 the Complainants issued an e-mail to that effect and though on several occasions the representatives of the OP-1 and 2 contacted with the Complainants over telephone giving assurance that the amount would be refunded shortly, but in this connection no written correspondences were issued on behalf of the OPs nor took any step to refund the paid amount to the Complainants. For such unscrupulous action of the OPs the Complainants has been suffering from financial stringency. At last the Complainants have issued legal notice through their Ld. Advocate on 04.09.2020 to the OPs demanding the paid amount by them to the OPs, but the OPs did not pay any heed to their request nor replied the said Advocate’s letter. 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.
From the above mentioned it is clear to us that initially the Complainant booked a flat at the project of the OPs namely Arundhuti-2 of Royal Enclave at Hatisala Mouza. The Complainants paid the required amount as per the direction of the OPs as also the terms and the conditions of the Agreement for Sale. Mou was signed on 16.02.2016 and Agreement for Sale was executed by and between the Complainants and the OPs on 29.04.2017. But Due to some difficulties the OPs could not construct the flat/s at Hatisala Mouza and by issuing a letter to the Complainants on 26.03.2018 offered them for alternative choice and option. Having no other way the Complainants agreed with the proposal and offer of the OPs to purchase the flat at Huderait Mouza instead of Hatisala Mouza. Such attitude of the Complainants proves that the Complainants have extended their extreme co-operation to the OPs after realizing the problem of the OPs for making construction at Hatisala Mouza. In the letter dated 26.03.2018 it was mentioned by the OPs that the terms and the conditions of the earlier agreement shall be abided by both the parties. But subsequently the OPs have failed to abide by the terms and the conditions of the earlier agreement dated 29.04.2017 and by issuing a letter on 23.04.2018 it was intimated by the OPs that the earlier agreement was not correct and OPs have demanded further amount of Rs.1,56,308/- from the Complainants. On 28.05.2018 the OPs have issued an allotment letter in favour of the Complainants, the total consideration price of the said flat was settled at Rs.24,45,600/- along with Rs.1,50,000/- for amenities. Further allotment was issued by the OPs on 18.01.2019 in favour of the Complainants stating the consideration amount of the covered car parking for Rs.2,50,000/-. Out of curiosity the Complainants visited the project to enquire about the progress of the construction work and also contacted with the OPs over telephone, when they came to know that though allotment letter was issued in favour of the Complainants by the OPs, no flat was allotted actually by the OPs in their favour. Subsequently the Complainant received an e-mail from the OPs whereby they were told to choice another flat and given them some options/names and descriptions of other flats except the earlier flat which the Complainants booked and paid partial consideration money. In this respect we are to say that after allotment of the questioned flat in favour of the Complainants, asking them to purchase another flat is not permissible in the eye of law on the ground that the purchasers after their choice have booked the flat and paid partial consideration amount as per the terms and conditions of the agreement for sale, the OPs are not entitled to direct the purchasers to opt another flat. Such action of the OPs is highly illegal as also suffers from deficiency in service and unfair trade practice. Being dissatisfied with such unscrupulous action of the OPs the Complainants have opt the correct decision for cancellation of the agreement with the OPs. It is absolutely true that the purchasers shall not purchase their flat according to the choice and whims of the OPs, rather they shall purchase the flat as per they own choice, regarding choice the OPs are not entitled to create any pressure on the purchaser/s.
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.6,07,348/-the Complainants have made several written correspondences along with the legal notice, but the OPs did not bother to take any fruitful step nor relied 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.6,07,348/- 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/307/2020 is thus allowed exparte against the OPs with cost.
The OPs shall refund either jointly or severally an amount of Rs.6,07,348/- to the Complainants along with interest @12% p.a.in the form of compensation on the said amount for the period from 05.05.2017 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 of cost as per the CPR.
Dictated and Corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
