MR. SHAYMAL KUMAR GHOSH, MEMBER

1.  The instant consumer case has been instituted by the complainant  U/S 12  of the Consumer Protection Act, 1986 against the  Opposite Parties praying for  refund  of Rs. 6,52,980/-  alongwith  interest @  8% per annum, Rs.10,000,00/-  towards compensation, Rs. 4,00,000/- towards litigation cost, etc.
2. To sum up the matter , it is stated that  OP No. 1 is a Pvt. Ltd. Company. Opposite Parties No. 2 & 3 both are directors of the OP No. 1/developer company.  The Complainants both have entered into an agreement with the OP No. 1 on 02.05.2017 for purchasing 3BHK flat having an area of 900 sq.ft.  more or less situated at  5^th floor  Block No. 19 within the District South 24 Parganas.  The consideration amount has been fixed at Rs. 34,40,000/- and as per terms and conditions of the said agreement, the complainants have paid Rs. 6,44,000/-  on the different dates.  Apart from said payment of consideration amount the OP/developer company has claimed service charges amounting to Rs. 28,980/- and accordingly the complainants have paid the same through cheque.  As per terms and conditions of the aforesaid agreement the development work would be completed within 42 months from the date of execution of the said agreement and  it also bounded duty  of the OPs to deliver the possession of the flat  to the complainants within the stipulated period of time upon payment of full and final consideration amount.  In the month of August, 2018, the complainants both have visited   the project place but they have found that no project  work has not yet been started.  The matter has been communicated to the OPs. But the OPs have failed to state proper reasons regarding this matter.  The complainants, thereafter, have submitted an application on 03.01.2019 for refund of consideration amount alongwith service charge but the OP/developer  company did not pay any single penny . There is a clear gross negligence and deficiency in service on the part of the OPs and accordingly the complainants have knocked at the door of this Commission for getting proper relief/reliefs as prayed for.
3. The order no. 10 dated 03.08.2022 reveals that the case would proceed  exparte against  all the OPs as  no written version has been filed by all the OPs.
4. Ld. Advocate appearing for the complainants has argued that the complainants have entered into an agreement with the OP No. 1 on 02.05.2017 for purchasing a flat measuring area 900 sq.ft. more or less situated at 5^th floor, Block 19  within the jurisdiction of  Bhagbanpur Gram Panchayat , Dist.  South 24 Parganas at a total consideration amount of Rs. 34,40,000/-  and as per terms and conditions of the said agreement, the complainants have paid Rs. 6,44,000/- alongwith service charges amounting to Rs 28,980/-  to the OP No. 1/developer company. The aforesaid agreement clearly indicates that the project work/development work would be completed within 42 months from the date of execution of the said agreement. But in vain.  The Ld. Advocate has further submitted that the aforesaid unit of the flat was supposed to be handed over to the complainants within the aforesaid stipulated period of time  upon payment of full and final consideration amount.  The said agreement has been executed on 02.05.2017 and  the complainants have visited  the project place  in the month of August, 2018 but it was very unfortunate that no project work/development work has been started. On several occasions the complainants have requested to   the project work in habitable conditions but too no effect. Having no other alternative the complainants have compelled to submit an application  on 03.01.2019 for refund of consideration amount alongwith  service charge.  For the said flat.  But till date the Opposite Party/developer company  did not pay in single penny to the complainants. There is no hope  to get the flat in habitable condition and accordingly  the complainants have filed this  consumer case against the Opposite parties  praying for certain reliefs which are clearly enumerated in the prayer portion of the petition of complaint.
5. We have  heard the Ld. Advocate appearing for the Complainants at length and in full.
6. We have perused  all relevant documents and papers meticulously.
7. We have considered the submissions  of the Ld. Advocate.
8. Upon careful perusal of memorandum of understanding  dated 02.05.2017, it appears to us that  the complainants  have entered into a MOU  with the OP No. 1/developer company  and OPs No. 2 & 3    in respect of purchasing  a self-contained residential flat having an area of 900 sq.ft.  (more or less)  situated at 5th floor, Block No. 19 together with undivided  impartible proportionate share of land including all other common services , amenities and facilities  and  the owner /developer company  has agreed to handover the aforesaid unit to the complainants.
9. In pursuant to the aforesaid MOU , it is crystal clear that the total consideration amount of Rs.34,40,000/-  has been settled and fixed  and out of total consideration,  the purchasers/complainants herein have paid Rs. 6,44,000/-  to the developer company.
10. The aforesaid MOU clearly indicates  that  the project work  would be completed   by the developer/company within 42 months from the date of signing  of this MOU  and it is also admitted  that the possession of the said flat/unit would also be  handed over to the complainants within the aforesaid stipulated period of time upon payment of full and final consideration.
11.  The page no. 6 of the said MOU  clearly indicates that Shri Biswajit Roy, authorised signatory/OP No.1/developer company has received Rs.6,44,000/-towards advance / earnest money from the end of the complainants and to that effect the OP No. 1/developer company  has issued  a   money receipt.
12.  From the above discussion,  it is clearly evident  that the complainants come well within the purview of the definition of the ‘consumer’ under the C.P.Act, 1986. 
13.  It is admitted the MOU has been executed  in the year 2017. Now we are in 2023.   The flat in question has not yet been delivered to the complainants till date. It is fact that  no project work has been started till date.  It is very practical that the  complainants cannot be expected to wait for possession of the apartment/flat for  indefinite period of time.  So,  the order of refund should be passed in favour of the complainants in order to  meet the proper justice  to the complainants.
14. From the four corners of the record , it appears to us that no written version has been filed  by the OPs and for that reason the matter has been fixed for exparte hearing against them.
15. When the petition of complaint has remained unchallenged and unrebarted,  there is no reason to disbelieve  the testimonies  of the petition of complaint.
16.  In this respect, we can safely rely upon the decision Suniti Kumar Bhat and others Vs Unitech Acacia Projects Pvt Ltd and others reported in 2018(3)CPR 795 (NC) wherein the Hon’ble National Commission held that when the builder fails to construct the flat on time, he is entitled to pay compensation in the form of interest and cost of litigation. In this respect of we can depend upon another remarkable decision FORTUNE INFRASTRUCTURE AND ANOTHER VS TREVOR D’LIMA AND OTHERS REPORTED IN (2018) 5 SCC 442 wherein Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of amount paid by him along with compensation.  

Hon’ble National Commission , in  Neena Mehrotra and Anr.  Vs M/s Unitech Limited, reported in  2017 (3) CPR 376 (NC)  wherein Hon’ble NCDRC has been pleased to hold pass  that in absence of any cogent explanation for failure to comply with stipulation of delivery of possession, opposite  party has committed deficiency in service as also has indulged in unfair trade practice.  When the OPs are not in a position to offer the possession of  the apartment ,  the said opposite party/company shall refund the amount with simple interest without any further liability and the allottee cannot be expected to wait for possession  of the aforesaid apartment for indefinite period of time.

17.   Keeping in view of the above observation and for finality of the litigation , we think  that there is a clear fault and gross negligence on the part of  all OPs.  and accordingly we  are constrained to allow the instant consumer case exparte against all Opposite parties with costs.

Hence,

 It is

                                                          ORDERED

That  the Opposite parties are directed to make the refund amounting to Rs.6,44,000/- (Rupees six lakhs forty-four thousand) only  to the complainants within 60(sixty) days from the date of this order  alongwith simple  interest @ 9% p.a.  from the date of  each payment ( in the form of compensation)  till full realisation.

That the opposite parties  are further directed to pay litigation cost of Rs. 20,000/- ( Rupees twenty thousand) only to the complainants within the aforesaid  stipulated  period of time, in default, the said amount shall carry simple interest  @ 9 % p.a. till full realisation.

The Complainant are at liberty to put the order in execution,  in case of non-compliance  of order by the OPs.

Thus  the consumer case stands disposed of as per above observation.

Note accordingly.