Hon’ble Mr. Ajeya Matilal, Presiding Member
This case record has been received from the Hon’ble 2nd Bench.
Today is first day for hearing before this Bench.
The Learned Advocate for the complainant is present. He filed BNA.
Heard submission of the Learned Advocate for the complainant. Perused the complaint along with the evidence adduced by the complainant and the documents annexed with the complaint.
Heard submission of the Learned Advocate, considered.
This is a case under section 12 of the Consumer Protection Act, 1986 praying for refund of Rs. 5,50,993/- along with interest @ 18% per annum, compensation of Rs. 10,00,000/- and litigation cost of Rs. 50,000/- .
The fact of the case is in short like that:
The OP No. 1 is a private limited company incorporated under the provisions of the Companies Act, 1956 having its registered office at the premises no. DN- 51, Merlin Infinite, 6th Floor, Suite – 606, Sector- V, Salt Lake City, Kolkata- 700 091 and the opposite party no. 2 & 3 are the directors of the opposite party No. 1 residing in the address given in the cause title of the complaint.
The complainants entered into an agreement with the OP No. 1 on 18.07.2017 for purchasing a 3 B.H.K. flat at Block No. 3, , Flat, Penthouse (P8) situated at Mouza- Bhagbanpur, J.L. No. 10 comprised in R.S. Dag Number 2498 and 2499 appertaining to R.S. Khatian Number 573, under P.S. Kashipur within the limit of Bhagbanpur Gram Panchayat, Dist. South 24- Pgns.
The photo copy of agreement is annexed at Annexure A-1. The agreement was executed on 18.07.2017. As per the agreement cum Memorandum of Understanding the total consideration money was Rs. 39,10,000/-
It was agreed upon between the developer company and the complainants that the project would be completed within the 48 months from the date of signing of M.O.U. It was also agreed upon that if the purchaser fails or neglects to pay the balance consideration money as and when called for, the purchaser will not be entitled to get ownership/possession of the flat in question.
As per the agreement the complainants paid part consideration money of Rs. 5,26,500/-, which would reveal from the annexure – A2 being a money receipt. The complainant further paid Rs. 23,693/- on account of service charge, which would also reveal from money receipt being exhibit- A2. The money receipt of Rs.800/- was on account of application cost, which is also reflected in A-2 collectively.
According to the complainant the OPs did not complete the project within the stipulated period. The complainant filed copy of e mail dated 15.01.2023 as evidence of correspondence with the OPs (marked as Annexure- 3) asking the OPs as to why the project did not progress.
In reply to the aforesaid e mail, the OPs communicated to the complainant that there were disputes in the concerned areas regarding power grid issue. So, they purchased another plot of land for their clients behind the Sapoorji Pallonji Apartments.
The OPs advised the complainant to make a prayer for refund of money and assured that they would refund the same within 6 (six) months from the date of application. The complainants submitted application for refund of Rs. 5,26,500/- on 29.03.2019 which is marked as Annexure Ä-4”.
But as the OPs did not refund the above money, so the complainants sent a notice to the OPs on 13.01.2020 asking the OPs either to complete the project or to refund the money, through speed post along with AD through their Advocate. Copy of the same is marked as Annexure “-6”. But the OPs did not comply with the request made by the complainant.
So, the complainant filed this case.
The complainant filed affidavit – in chief in support of their case.
We have gone through the memorandum of understanding, money receipts, copy of e mail correspondences between the parties and copy of cheque dated 22.02.2017 issued by the complainants in favour of the OP No. 1 along with demand notice sent to the OPs (Annexure A-6). It goes without saying that it is apparent from the M.O.U. concerned that the complainants are consumers
It appears that in spite of receiving part consideration money as per the agreement, the OPs did not take any positive steps. So, it appears that there is deficiency on the service on part of the OPs.
It appears from the complaint that cause of action of the case arose on 30.09.2023. So, the complaint has been filed within the period of limitation.
So, if the case succeeds, we are of the view that the complainants are entitled to relief.
Accordingly, the complaint case No. 197/2020 deserves to be allowed.
Hence, it is ordered:
CC 197/2020 is allowed ex parte against the OPs.
The OPs are directed to refund the sum of Rs. 5,50,993/- along with an interest @ 9% per annum from the date of agreement along with compensation of Rs. 1,00,000/- and litigation cost of Rs. 40,000/- within 90 days’ period from this order, failing which it shall carry interest on the entire sum in the stipulated rate till payment.
The complaints will be at liberty to put the award into execution after the aforesaid period is over. Let a copy of this order be supplied to the complainants free of costs.
