SAMIKSHA BHATTACHARYA, MEMBER
The instant complaint has been filed by the complainant u/s 17 (1)(a)(i) of CP Act 1986, against the OPs alleging deficiency in service.
The fact of the case, in a nutshell, are that the OP NO. 1 is the company and the OPs No. 2& 3 are the directors of the said company i.e. OP No. 1. The OPs decided to construct multi-storied building and/or bungalow in or upon the ‘A’ schedule land for which the OPs obtained a sanctioned plan for G+4 storied residential building and/or bungalow from Beonta-II Gram Panchayat & Bhangar-II Dev. Block, District South 24 Parganas vide building plan dated 24.12.2015. The complainant being an intended purchaser wanted to purchase a property as described in Schedule‘A’ in the petition of complaint for the purpose of his son’s education in future and for which the complainant by an application dated 30.09.2015 applied for allotment of Schedule Bungalow. The complainant went to the office of the OP No. 1 and after discussion it was agreed by the complainant that he is interested to purchase ‘B’ Schedule property from the OPs and for which the complainant entered into an agreement for sale with the OPs on 07.06.2016. The total consideration of the bungalow was fixed at Rs,19,50,000/- and the OPs agreed to handover the bungalow to the complainant as early as possible. In terms of the said agreement complainant paid a total sum of Rs.4,03,000/- out of total consideration of Rs.19,50,000/-. All on a sudden on 26.02.2018 OP No.1 served a letter to the complainant that their project has been failed, hampered and for which OP No. 1 gave an offer to the complainant for another project at Hudrait Mouza, New Town, Action Area III Kolkata 700135. But the complainant refused to accept their proposal. Therefore, the complainant submitted an application for refund of his earnest money which were received by the OPs on 30.03.2018. The complainant has submitted the application as per their format under pressure where it was mentioned that deduction of 5% of the deposit would be retained to cover administrative cost without providing any service to the complainant till that date. In the said form, it was written that “the deposit will be refunded by bank transfer/cheques within a maximum of 6 months”. That six months already expired on 30thSeptember, 2018, but OPs neglected to refund the said amount. Finding no other alternative, the complainant filed the instant complaintagainst the OPs praying for direction upon OPs to handover Schedule ‘B’ property in terms of the agreement and/or refund the complainant’s earnest money amounting to Rs.4,03,000/- along with interest and damages of Rs.3,00,000/- and litigation cost of Rs.50,000/-.
Though the notice was served upon the OPs neither of them appeared before this Commission nor filed any written version. Therefore, the case has been proceeded ex parte against all the OPs.
On the date of hearing, Ld. Counsel for the complainant, with all fairness, has submitted before us that the complainant wanted to purchase the property from the OPs for the purpose of his son’s education. The property was situated in South Kolkata. As per agreement for sale entered by and between the parties it was fixed that the consideration of the bungalow was Rs.19,50,000/-. The complainant paid Rs.4,03,000/- and the money receipts are annexed with the petition of complaint towards the payment. The Ld. Counsel for the complainant drew our attention by showing the letter dated 26.02.2018 issued by OP No. 1 informing the complainant that the Schedule project has been suffering unnecessary difficulties due to no reason from their side. Keeping the position of the complainant in their mind, and as per their promise they offered the complainant to choose at an alternative position which project is situated at Hudrait Mouza, New Town, Action Area III, Kolkata 700135. The project in the New Town would not be suited by the complainant and therefore, the complainant declined to take the bungalow in an alternative position in New Town and requested for refund. Therefore, the complainant has prayed for refunded of his deposited amount Rs.4,03.000/- along with adequate interest.
Upon hearing the Ld. Counsel for the complainant and on perusal of the record, we have observed that complainant entered into an agreement for sale with the OPs on 07.06.2016 for purchasing a bungalow having super built up area of 1100 sq. ft. in Phase 1 of the housing complex namely ‘Royal Enclave’ which is mentioned in the 2ndSchedule of the agreement for sale. In the agreement for sale dated 07.06.2016 it is also mentioned that Rs.36,000/- was received from the purchaser/complainant. It has been categorically mentioned in the memo of consideration. Complainant has annexed the Challan for booking amount which mentions that the complainant paid booking amount of Rs.25,000/-. Thereafter, complainant paid Rs.1,80,000/- on 12.12.2015, Rs.1,80,000/- on 23.03.2016 and Rs.18,000/- on 09.06.2016. Therefore, there is no doubt that complaint paid Rs.4,03,000/- in total. In the agreement for sale it is also mentioned that OPs will construct the bungalow within six months from the date of entering into the agreement. Clause 11(c) of the agreement for sale is reproduced under:
“In case the purchaser(s) complies/comply with and/or is/are ready and willing to comply with his/her/its/their obligations hereunder and the vendor fails to construct the Designated Unit within the stipulated period, then the vendor shall be automatically allowed and extension of 6(six) months in case of failure on the part of the vendor to construct the Designated Unit even 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 month 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% per annum within 15 days of such cancellation.”
In the letter dated 26.02.2018 issued by OP No. 1, OP No. 1 has mentioned in that letter that the resilient issues have been raised by the Government which are inevitable and for that the project work was hampered. But the OP No. 1 has not produced any document to the complainant that which issues were raised by the Government and what measures were taken by the OPs to solve those issues. All on a sudden by issuing a letter dated 26.02.2018, the OPs offered the complainant to take an alternative project which cannot be the choice of the complainant. The purchaser choose a project depending upon the position of the project and the requirement of the purchaser. The purchaser is not bound to take any alternative project which is not suitable for him. Moreover, the application for refund of money mentions that the deposit will be refunded by bank transfer/cheque within a maximum period of six months and 5% of the deposited amount would be retained to cover administrative cost. Certainly, this clause will not attract in the case of instant purchaser since the complainant had not cancelled the booking forhis ground. He had to cancel the booking since the OPs could not give the bungalow in the proposed site. If the OPs would have offered him the bungalow in the site as per agreement for sale complainant would not have cancelled his booking. Moreover, OPs have not refunded the amount within six months even deducting the 5% deposited amount. In the instant case, the OPs remained silent after taking the application for refund from the complainant for so many years. Moreover, the OPs neither appeared before this Commission nor filed their written version. In this connection we can cite the judgment reported in 2018(1) CPR 314 (NC) in M/s. Singla Builders & Promoters Ltd. Vs. Aman Kumar Garg wherein the Hon’ble National Commission has held that non-filing of written version to complaint amounts to admission to allegations leveled against them in consumer complaint. The evidence filed by the complainant remains unchallenged. OPs have not explained what prompted them to offer the complainant a bungalow at an alternative position. The OPs cannot force a purchaser to take the bungalow in an alternative project.
In course of argument, Ld. Advocate for the complainant has stated that the complainant came to know that the OPs are selling the said bungalow with high price and for which they are delaying the project to overcome the hurdle from the intending purchasers who booked their flats/bungalows. The purchaser cannot wait for inordinate delay. In the case in hand, the OPs have not offered the bungalow as per agreement for sale dated 07.6.2016 entered between the partied rather the OPs, all on a sudden offered the complainant to choose a bungalow from an alternative site. Moreover, when the complainant did not agree to purchase a bungalow from an alternative project and prayed for refund the OPs forced him to sign on a application admitting the deduction of 5 % of deposited amount. The cost of administrative charge cannot be a applicable here since OPs have failed to deliver the bungalow as per agreement for sale. All these acts are nothing but deficiency in service and unfair trade practice on the part of the OPs. and as such, the complainant is entitled to get relief.
In view of foregoing discussion, we holdthat complainant is entitled to get refund of his deposited amount along with interest in the form of compensation for causing harassment and mental agony by the OPs.
Thus the complaint succeeds.
Hence, ordered
That Complaint Case being No. CC/734/2019 be and the same is allowed ex parte against the OPs with cost.
The OPs are directed to refund Rs.4,03,000/- ( Rupees Four lakh three thousand) only to the complainant along with interest @ 9% p.a. from the date of respective payment till the date of realization in the form of compensation within two months from this date of order.
The OPs are also directed to pay litigation cost of Rs.10,000/- (Rupees Ten thousand) onlyt to the complainant within the aforesaid stipulated period.
If the OPs fail to comply with the above order, the complaint is at liberty to put the decree into execution.
Thus the complaint case is disposed of accordingly.
Let a copy of this order be served to the complainant and copy of order be sent to the OPs by registered post with A/D.
