HON’BLE MR. SHYAMAL KUMAR GHOSH, MEMBER

The complainants have filed the instant case against the ops for gross negligence and deficiency 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 consideration 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 and 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 entered into an agreement for sale with the ops on 21/10/2016 for purchasing one bungalow measuring covered area 1100 sft and they have paid a sum of Rs 9,60,000/- to the ops out of total consideration amount of Rs 33,50,000/-. After passing of long two years from the date of execution of the aforesaid agreement, the ops developers have failed to start their construction work and as such they have not delivered the aforesaid Bungalow to the complainants within the stipulated period of time. The complainants requested the ops 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, Ld. Counsel appearing for the complainants argued that they have already paid Rs 9,60,000/- to the ops developers viz Dharitri Infraventure Pvt. Ltd. out of total consideration amount of Rs 33,50,000/- in respect of purchasing the aforesaid bungalow measuring covered area 1100 sft. As per agreement for sale dated 21/10/2016 executed between the parties, the ops have agreed to deliver the aforesaid bungalow within the stipulated period of time mentioned in the said agreement to the complainants. But it is very unfortunate that no bungalow was constructed in the schedule 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. Accordingly, the Ld. Counsel has prayed for execution and registration of the deed of conveyance in favour of the complainants and alternatively has prayed for refund of entire consideration amount along with interest, cost and compensation. 

None appeared on behalf of the ops 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 submissions. We have also perused all relevant documents and papers lying in the case record.

It is admitted that the complainants have already paid Rs 9,60,000/- to the ops /developers (viz Dharitri Infraventure Pvt Ltd ) on 23/09/2016 as a part payment by issuing several cheques which is revealed from the money receipt being no – 474 dated 23/09/2016 as well as from RECEIPT attached with the agreement for sale dated 21/10/2016.

It is also admitted that an agreement for sale dated 21/10/2016 has been executed between the parties, wherein the ops / developers have agreed to deliver one bungalow mentioned in Part – 1 Second Schedule of the aforesaid agreement, to the complainants within the stipulated period of time.

From the aforesaid facts and circumstances, it is clear to us that the status of both complainants and the ops comes 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 the ops. The current project of the ops has been suffering from unnecessary difficulties due to number of reasons from the side of the ops-developer company and as such they have failed to complete the project on the proposed premises which is clearly revealed from the intimation letter dated 02/04/2018 written by Ops / company addressed to the complainants.     

In reply, the complainant, by the letter dated 10/04/2018 informed the op company that due to non development of the project as agreed between the parties within the stipulated period of time, they would  like to get refund of the earnest money of Rs 9,60,000/- along with interest.

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 the Complaint remain unchallenged which go against them. 

The aforementioned facts clearly indicate that the project of the op company was totally abandoned and as per agreement, the ops have 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 the order for refund only instead of passing the order for execution and registration of the deed of conveyance and in this respect we take the reliance upon the decision passed by the Hon’ble Supreme Court in Fortune Infrastructure & Another Vs. Trevor D’Lima & Others, reported in (2018) 5 SCC 442 wherein the Hon’ble Apex Court decided that the complainants cannot be made to wait indefinitely as the possession of 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 for 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/-. The ops-developers  are directed to refund Rs 9,60,000/- with interest @ 10 % pa to the complainants from the date of 23/09/2016 within 60 days from the date of this order till full realization along with litigation cost of Rs 10,000/- in default, the complainants shall have liberty to put the order in execution.