PER:HON’BLE MR. SAMSRESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of a couple/intending purchasers against the Developer/Builder Company on the allegation of deficiency in services on the part of developer in a consumer dispute of housing construction.

          Succinctly put, complainants’ case is that being allured by the advertisement made by OP Company, they had booked a self-contained flat measuring about 995 sq. ft. super built up area being Flat No.6B1 on the 6^th floor, Block No.3 in a G+14 storied residential building at Kadampur, New Town, Kolkata on 02.12.2015 by paying Rs.12,38,207/- in few instalments against a total consideration price of Rs.63,95,182/-.  The complainants have alleged that since the booking, they noticed that no development has been started in the project site and on enquiry, OP Company could not give any satisfactory reply.  The complainants have alleged that till date the OP Company did not execute any Agreement for Sale with them.  The complainants have categorically stated that there is no likelihood that the project will be completed by 2018 as promised by the developer.  On 16.11.2017 the complainants issued a notice to the OP Company through their Advocate requesting refund of Rs.12,38,207/- but the OP Company did not pay any heed to the same.  Hence, the complainants have lodged the complaint with prayer for following reliefs, viz.- (a) to direct the OP Company to refund Rs.12,38,207/-; (b) a direction upon OP Company to pay interest @ 18% p.a. from the date of first payment till the date of actual refund; (c) to pay compensation of Rs.20,00,000/- for harassment and mental agony; (d) litigation cost etc.

          Despite service of notice, Opposite Party did not appear to contest.  In view of decision of Three-Judge Bench of Hon’ble Supreme Court reported in 2016 (1) Supreme 319 [New India Assurance Co. Ltd. – Vs. – Hilli Multipurpose Cold Storage Pvt. Ltd.] the OP was prevented from filing written version.  However, keeping in view the observation of another decision of Hon’ble Supreme Court reported in (1988) 4 SCC 613 [Modula India – Vs. – Kamakshya Singh Deo] OP Company was permitted to file questionnaire to test the veracity of statement of complainants and to participate in the final hearing.  The OP Company did not choose to file questionnaire.  However, at the time of final hearing, the OP Company participated by filing a brief notes of argument.

          On perusal of evidenceon record, it would reveal that the OP Company initiated a project of G+14 storied residential building at Kadampur, New Town, Kolkata.  Being impressed with the brochure and the project plan, the complainants decided to book one flat and accordingly they booked a self-contained flat measuring about 995 sq. ft. super built up area being Flat No.6B1 on the 6^th floor, Block No.3 in a G+14 storied residential building at Kadampur, New Town, Kolkata on 02.12.2015 by paying Rs.12,38,207/- in few instalments against a total consideration price of Rs.63,95,182/-. 

          The payment schedule is recorded below –

1. Booking amount                                    Rs.2,07,250/-
2. 1^st instalment within 15 days                Rs.1,030,957/-
3. 2^nd instalment on completion of

Foundation work                                    Rs.9,79,692/-

4. 3^rd instalment on completion of

2^nd floor casting                                      Rs.3,09,552/-

5. 4^th instalment on completion of 5^th floor Rs.3,09,552/- and so on.

      The startling fact is that the OP Company has not yet started the construction. Finding no other alternative, the complainants by a legal notice dated 16.11.2017 claimed refund of the amount along with interest @ 18% p.a. on the ground that they have been residing in a tenanted place with high rent and they were assured that the project will be completed in all respect within December, 2018. 

     However, in the said legal notice, the complainants have articulated that they are ready to make payment of balance amount for the booked flat.  A reply to the same was given by OP Company on 25.11.2016 but in the said letter, there was no promise when the OP Company will be able to handover the subject flat in habitable condition after receipt of balance consideration amount.  The fact remains that the complainants have been residing in a rented house and in order to have a roof of their own, they agreed to purchase the flat and booked the same on 02.12.2015 but the OP Company has shown masterly inactivity in raising the construction.  A serious doubt, therefore, creeps in as to whether the OP Company has obtained any sanction plan in order to raise construction.  In other words, the reply given by the authorised signatory of OP Company dated 25.11.2016 does not show any specific date as to when they will be able to complete the construction. 

       Mr. Aloke Mukhopadhyay, Ld. Advocate for OP Company submits that there was no stipulation for completion of the project within December, 2018 and when the complainants have prayed for refund, 10% of the deposited amount should be deducted.

      The contention of OP Company as to failure to make payment by the complainants does not arise at all because it was a construction linked payment plan and there is no iota of evidence that the OP Company had ever informed the complainants about progress of construction and claimed amount in accordance with such progress of construction.  About three and half years have already elapsed from the date of booking but the OP Company could not assure the complainants when the subject flat will be delivered. 

       In such a situation, we have no hesitation to hold that the complainants being ‘consumer’ within the meaning of Section 2(1)(d) of the Act hired the services of OP Company for having a flat of their own but the OP Company has failed to execute any Agreement for Sale and also failed to promise when they will be able to complete the construction.  The complainants, who have been residing in a rented house for their urgent need booked the flat but all their hopes and aspirations for having a roof over their head has been shattered which in turn implies deficiency in services on the part of OP Company in accordance with Section 2(1)(g) read with Section 2(1)(o) of the Act.

      Considering the above, the complainants are entitled to refund the entire amount paid by them as an advance i.e. Rs.12,38,207/-.  The complainants are also entitled to compensation in accordance with Section 14(1) of the Act and considering the loss suffered by the complainants, we think a compensation in the form of simple interest @10% p.a. from the date of each payment till its realisation will meet the ends of justice.  As the situation compelled the complainants to lodge complaint, they are also entitled to litigation cost which we quantify at Rs.10,000/-.

With the above discussion, we allow the complaint on contest with the following directions –

1.  The Opposite Party is directed to refund Rs.12,38,207/- along with simple interest thereon @ 10% p.a. in favour of complainants from the date of each payment till its realisation;
2.  The Opposite Party is directed to pay Rs.10,000/- as costs of litigation in favour of complainants;
3.  The above payments must be paid within 60 days from date.