DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION                      KOLKATA UNIT-IV

Sealdah Court Room No. 302 and 309

1,Beliaghata Road, Kolkata-14

BEFORE:

HON'BLE MR. SUDIP NIYOGI                                                   PRESIDENT

HON'BLE MRS. MANJUSRI SARKAR CHOWDHURY            MEMBER

HON'BLE MR. AYAN SINHA                                                         MEMBER

PRESENT:   Arunachal Bhattacharyay, Ld. Advocate for the complainant.

Judgement

HON’BLE MRS. MANJUSRI SARKAR CHOWDHURY     MEMBER

FACTS

            This is a complaint u/s 35 of the CP Act, 2019 made by Mihir Kumar Saha against the OPs namely (1.) M/s. Dharitri Infraventure Pvt. Ltd. (OP No.1) & (2.) Sri. Suman Jana (OP No.2) alleging deficiency in service and negligency on the part of the OPs and accordingly prays for a direction to refund of Rs.3,40,860/- along with 15% interest from the date of each payment and to pay Rs.17,00,000/- as compensation along with litigation costs of Rs.30,000/-.

            Brief fact of the case is that: - Complainant being relied upon the public advertisement issued by the OPs, booked a 2 BHK flat measuring about 600 sq. ft. at housing complex namely “ROYAL ENCLAVE” at Mouza – Hatisala along with several amenities to be provided by the

OPs. An agreement for sale was executed between the Complainant and the OPs on 23.05.2016 to which Complainant paid Rs.3,40,860/- out of the total consideration price of Rs.15,90,000/-. The said flat was to be handed over by the OPs within 36 months from the date of agreement for sale. But, thereafter, the OPs did not hand over the possession of the flat in question, nor they communicated any information regarding the progress/ commencement for the construction of the flat to the Complainant, even after, repeated requests were made by the Complainant. It is also alleged that there was no construction from a period i.e. 24.05.2016 to 22.07.2018 which is approximately more than 53 months. Thereafter, the Complainant by a written application to the OPs claimed for refund of money of Rs.3,40,860/- which was paid as a part consideration to the OPs.

She had also approached to the Office of Assistant Director, Consumer Affairs and Fair Business Practices, Salt Lake City, Kolkata, Government of West Bengal for resolving the dispute in the tripartite meeting wherein the representative of the OPs assured the Complainant that they would pay the whole amount in two instalments i.e. @ Rs.1,70,430/- in first week of March, 2019 and April, 2019. Thereafter, the OPs remained silent for the said payment and thus finding no other way, Complainant filed this instant complaint before this Commission praying for certain relief(s) as discussed above.  

Despite receipt of summons, the OPs did not appear and contest this case by filing written version and so, the case was heard ex parte against them.

            Complainant adduced evidence on affidavit annexing documents, namely, the Agreement for Sale dated 23/05/2016.

POINTS FOR CONSIDERATION

1. Whether the Complainant is the ‘Consumer’ under the CP Act, 2019?
2. Whether there was any deficiency in service on the part of the Opposite Parties as alleged for?
3. Whether the Complainant is entitled to the relief(s) as prayed for?

                                                                                 FINDINGS

All the points are taken up together for convenience and avoiding repetition of facts.

We have carefully perused the petition of complaint and the evidence of affidavit filed by the Complainant along with the documents / annexures available with the record. Those documents appear to be fully consistent with the case of the Complainant.

The agreement for sale dated 23.05.2016 duly signed by the Complainant and the Authorised Signatory of OP No.1 amply reveals that the Complainant agreed to purchase the flat in question which was to be constructed by the OPs and handing over the possession within 36 months at a consideration price of Rs.15,90,000/- to which Complainant had paid Rs.3,40,860/- as per the details mentioned below: -

The amount of Rs.3,40,860/- had not been denied by the OPs. No rebuttal evidence come before them. So, there is no doubt that the Complainant is ‘Consumer’ under the purview of CP Act, 2019 as they had paid Rs.3,40,860/- for purchasing the flat which was to be constructed and handed over by the OPs.

            Complainant filed certain copy of application for refund of money dated 23.07.2018 wherefrom it appears that the Complainant had already cancelled the said booking of the flat which was duly acknowledged by the OPs as the said flat was not handed over to her within 36 months as stated in the agreement for sale dated 23.05.2016.

Moreover, on perusal of the document filed by the Complainant during the tripartite meeting it was settled that the due amounts would be paid in two instalments i.e. in the first week of March, 2019 & April, 2019 for smooth payment dues to him.

So, it is an admitted fact that the OPs have failed to deliver the possession of the flat and due to which they assured to refund the money to the Complainant.

It is needless to say, parties are bound by the terms of Agreement, as per Agreement and therefore, by not handing over the flat within 36 months to the complainant, OPs have failed to fulfil their part of obligations and thereby deficient in rendering service towards the Complainant and so, the complainant is entitled to the reliefs.

The allegations of the Complainant also remained unchallenged and unrebutted.

In our opinion if a direction be given upon the OPs to refund the booking amount, i.e. Rs.3,40,860/- to the Complainant along with compensation in the form of simple interest @9% p.a. from the date of last payments as made by the Complainant and litigation cost of Rs.5000/-, it would be just and appropriate.

In the end, Complainant has succeeded in proving his case.

Accordingly, it is

                                                ORDERED

That the instant case be and the same is allowed ex parte against all the OPs.

OPs are directed to refund of Rs.3,40,860/- (Rupees Three Lakh Forty Thousand Eight Hundred Sixty Only) along with simple interest @9% p.a. in the form of compensation from the date of last payment and also to pay Rs.5,000/- (Rupees Five Thousand Only) towards cost of litigation to the Complainant.

OPs are jointly and severally directed to pay the aforesaid amount within 45 days from the date of this Order failing which the entire amount shall carry @12% from the date of default, until realization in full.

If the abovesaid order is not complied with by the OPs, the Complainant is at liberty to proceed in accordance with law.

Dictated and corrected by me

Member

[HON'BLE MR. SUDIP NIYOGI]

PRESIDENT

[HON'BLE MRS. MANJUSRI SARKAR CHOWDHURY]

MEMBER

[HON'BLE MR. AYAN SINHA]

MEMBER