HON’BLE MR. SHYAMAL KUMAR GHOSH, MEMBER.

The Complainants have filed the instant Case against the  Ops for gross negligence and deficiencies in service on their part and also  prayed  for execution and registration of the deed of conveyance  in respect of Bungalow,  alternatively prayed  for refund of entire considering amount along with  interest, compensation, cost etc,

The brief fact of the case is that the opposite party 1 is a private Limited Company represented by the Ops 2 & 3 who are the promoters/developers by profession engaging for development of the land by construction of various flats, garages, etc.  for residential purpose as well as commercial purpose. The complainants have agreed to purchase one Bungalow being No. B 54 measuring covered area 1060 sq.ft. and they have paid  a sum of Rs. 8,00,000/- (Rupees eight lakhs) to the OPs out of total consideration amount of Rs. 40,00,000/-  (Rupees fourty lakhs).   After passing   of  few months  from the date of allotment of Bungalow,  the OPs/developers have failed to start  their  construction  work and as such they have not  delivered  the aforesaid  Bungalow to the complainants within their stipulated  period of  time.  Lastly the OPs, at the request of the complainants, have refunded a  sum of Rs.1,25,000/- (Rupees one lakh twenty-five thousand only) on 15.11.2017 and on 05.01.2018 through NEFT to the complainants. The  complainants requested  the OPs  further to  perform their duties  properly  over the present  subject matter by issuing  advocate’s letters  on several occasions, but they did not pay any  heed  to the aforesaid  matter causing  clear gross negligence and deficiency in service  on the part of the OPs. 

Hence, the complainants knocked  at the door  of this  Commission  for getting  proper relief/reliefs.

No written  version  was filed by the OPs  and as such  the Case was heard  ex-parte  against  the  OPs.                                                        

In course of hearing, the Ld. Counsel appearing for the complainants argued that they have already paid Rs. 8,00,000/- (Rupees eight lakhs) to the OPs/developers  namely Dharitri Infraventure Pvt. Ltd. out of total consideration amount of Rs. 40,00,000/-(Rupees forty  lakhs)  in respect of purchasing  the aforesaid Bungalow  measuring covered area 1060 Sq.ft.  As per allotment letter for Ultrta city dated, 11.02.2017 the OPs informed the complainants for allotment of  a Bungalow  being No. B 54 in their favour in Ultra city project situated at Rajarhat, South 24 Parganas. But it is very unfortunate that no Bungalow was constructed  in the  scheduled premises.  The Ld. Counsel also argued that the project work was totally failed and as such they were not in a position to deliver the same to the complainants causing   deficiency in service on the part of the OPs .  Ld. Counsel also submitted that at the request of the complainants, the OPs refunded a sum of Rs.1,25,000/- (Rupees one lakh twenty-five thousand)  to the complainants.  Accordingly, the Ld. Counsel  has prayed for refund  of entire consideration amount along with interest,  cost and compensation.  

None appeared on behalf of the opposite parties at the time of final hearing.  The case was taken up for  ex-parte hearing.

We have heard the Ld. Advocate for the complainants.  We have considered his submission.  We have also  perused  all  relevant documents and papers lying in the case record.

It is admitted that the complainants have already paid Rs. 8,00,000/- (Rupees eight lakhs only) to the Ops/developers  (Dharitri  Infraventure Pvt. Ltd.)   as a part   payment by issuing several  cheques which is revealed from the customer  copy  being  Sl. No. 1056 dt. 18.02.2017 issued by the OP/ Dharitri Infraventure Pvt. Ltd.

It is also admitted that a Bungalow being No. B 54 has already been allotted in favour of the complainants which is clearly revealed from the allotment letter dated. 11.02.2017 and as such they have been waiting for the said Bungalow since  Pretty long  period of time.

From the  aforesaid facts and  circumstances,  it is clear  to us  that the   status   of both complainants and the OPs come  well within the purview of ‘Consumers’ and ‘Service Providers’ respectively as per  Consumer  Protection Act , 1986.

Now, we turn into another important point regarding gross negligence and deficiency  in service  on the part of OPs. It is admitted that the  opposite parties,  at the request of the complainants, have refunded a sum of Rs. 1,25,000/-(Rupees one lakh twenty-five thousand only) out of Rs. 8,00,000/- (Rupees eight lakhs only) on 15.11.2017 and on 05.01.2018 through NEFT in favour of the complainants  which is  clearly revealed  from the  para 9 of the  petition  of complaint.  But the cheque Nos. 017412 dt. 12.10.2017 , 017414  dt.25.11.2017 and 017415 dt. 20.12.2017 issued by the OPs in favour of  Anupam De, one of the complainant, were  not  encashed  due to  insufficient  funds which is clearly reflected in the  ‘Rejection Memo’ issued by the  concerned  Bank. 

The  whole facts  help us to  believe  how the Ops  played a trick with the complainants in    ill manner causing  glaring example    of unfair  trade  practice  on the part of  the OPs.

Moreover,  after getting  enough  opportunities  the OPs have failed  to file written version for taking  their defence and as such the  allegations contained in the Petition of complaint remains unchallenged which go  against them.

Now, it is clear to us  that the OPs  have failed to start  their project work within the  stipulated of time  and as  per allotment letter dated, 11.02.2017 the Ops have also failed to comply with the   contractual obligations which  would constitute   deficiency in service on the part of the OPs.

Under such circumstances, there is no hesitation to hold that  it should be just and proper to pass  an order for refund only  instead of passing the order  for execution and registration of the deed of conveyance  and in this respect we  can take the  reliance upon  decision passed by the Hon’ble Supreme Court  in  Fortune Infrastructure  and  Another  -VS-  Trevor D’Lima &  Others  reported in  (2018) 5/SCC/442  wherein  Hon’ble Apex Court decided that complainants can not be  made to wait  indefinitely as the possession  or the flat has not been handed over to  them so far  and the OPs are enjoying  the benefits  of  their hard earning money deposited  with it.  In such  circumstances,  it is well within the complainant’s  right to seek  refund  along  with  interest.

Keeping in view of the above observations, we  allow the  instant consumer  case ex-parte against the OPs/developers with  cost of Rs. 10,000/-(Rupees ten thousand only).  The OPs /developers are directed to refund Rs. 6,75,000/- (Rupees six lakh seventy-five thousand only) with interest   @ 10% p.a. to the complainants from the date of  18.02.2017 within  60 days from the date of this   order till full realization along with  the litigation  cost of Rs. 10,000/- (Rupees ten thousand only) in default  the complainants shall have  liberty to put the order in execution.