Hon’ble Mrs. Soma Bhattacharjee, Member
The case no. CC/225/2020 has been filed by Arnab Bose and Debolina Bose complainants, against the OP/Developer M/s. Dharitri Infraventure Pvt. Ltd.
The facts of the case being no. CC/225/2020, in a nutshell are that the complainants Arnab Bose and Debolina Bose entered into a memorandum of understanding on 1st July, 2017 with the Opposite Party M/s. Dharitri Infraventure Pvt. Ltd. represented by its Directors (1) Sri Suman Jana (2) Smt. Dipanwita Samanta of premises no. DN51, Merlin Infinite, 6th floor, Unit 606, Sector V, Salt lake Kolkata- 700091 whereby the complainants intended to purchase a residential flat along with covered car parking space, being 3BHK flat having area of 700 sq. ft. more or less on 5th floor, Block 5, pent house P6, on the land and building situated at Mouza Bhagabanpur , J.L. no. 10 comprising in R.S. Daag nos. 2498 & 2499 appertaining to R.S. khatian No. 573 and other R.S daag and Khatian under the P.S of Kashipur within the limits of Bhagabanpur Gram Panchayet under the D.S.R at Bhangar, in the District of South 24 Pgs.
The total consideration payable by the complainants was Rs. 34,10,000/-. The flat and car park was supposed to be handed over to the complainants by the developer by July, 2021.
The payment schedule of the complainant’s to the Opposite Parties/developers is as follows:
(i) Rs. 52000/- by cheque no. 012974 in HDFC Bank on 15.04.2017 |
(ii) Rs. 5,50,000 by cheque no. 012975 in HDFC Bank on 28.06.2017 |
(ii) Rs. 27,090/- by cheque no. 108724 in UBI on 01.07.2017 |
(iv) Rs. 800/- by cheque no. 10821 in UBI on 01.07.2017 |
Totalling to Rs. 6,29,890/- |
Copies of money receipts filed by the complainants are available in the case record.
The complainants tried to communicate several times with the OPs through telephone calls and emails regarding delivery of the said flat but all efforts went in vain.
Complainants having no other alternative made a representation to the OP/developer on 07.01.2020 for cancellation of booking of the flat and refund of the full amount of Rs. 6,29,890/- along with adequate compensation for causing harassment, within 10 days of receipt of their representation. Copy of the representation filed by the complainant is available in the record.
Thus the complainants were compelled to file the complaint case on 12.03.2020, cause of action having arisen on 15.04.2017 when the first payment was made to the OP/developer vide cheque. Since the property has not been handed over to the complainants, there is continuing cause of action. The complainants filed affidavit of service of notices upon the OP/developer. None appeared for the OP/developers neither did they file W.V or adduce any evidence. The matter proceeded ex parte. The evidence on affidavit filed by the complainants and all other materials have been considered. The complainants have filed their written notes of argument.
Today the argument of the Ld. Advocate for the complainant was heard and considered.
Points for decision are
- Whether the complainants are consumers
- Whether there is deficiency of service
- Whether the complainants are entitled to any relief
Since the developer/OP have received consideration amounting to Rs. 6,29,890/- but are yet to handover the scheduled flat to the complainants, the complainants are consumers beyond doubt under the provision of Sec 7(ii) of Consumer Protection Act, 2019. Since the Opposite Parties did not fulfil their obligations as per memorandum of understanding there is deficiency of service on the part of the Opposite Parties.
On perusal of the verbal submission and documentary evidence available in the record we are of the view that the evidence of the complainants, unchallenged by the Opposite Parties, can be accepted. The complainants are entitled to get relief as prayed for.
Hence it is ordered
The complaint case therefore succeeds ex parte.
The Opposite Parties /developers are hereby directed to refund the entire sum of Rs. 6,29,890/- received from the complainants along with an interest of 18% p.a. from 01.07.2017 within 60 days.
The Opposite Parties will also pay a litigation cost of Rs. 25,000/- within the stipulated period.
If the Opposite Parties /developers fail to comply with this order within the stipulated time, the complainants will be at liberty to put the order into execution.
The complaint case is hereby disposed of.
