Case of the complainants in brief is that the complainants entered into an agreement for sale on 20.01.2018 for a residential 2BHK flat measuring covered area of 535.63sq.ft. at the ground floor situated at Mouza - Hudarit, P.S. - Rajarhat under the name and style “Evanie EcoNest” for a total consideration of Rs. 15,81,925/-only out of which the complainant paid Rs. 4,41,946/- only to the O.P. no.1 and 2 in two installments where O.P. no.1 and 2 are a partnership firm. It is stated in the petition of complaint that as per agreement the complainants were to pay the balance amount at the time of execution and registration of deed of conveyance. As per the agreement the  said flat was to be handed over to the Complainants within 40 months from the date of agreement. It is further stated in the petition of complaint that the West Bengal HIRA has been pleased to reject this project on 21.02.2020. At that point of time the complainants send a letter dated 07.01.2021 to the O.Ps. requesting to refund of their paid consideration money but till date OPs did not turn up. Hence, this case.

Complainants filed this case praying for direction upon the O.Ps. to refund the entire consideration amount of Rs.4,41,446/-only with interest @18% p.a. and to pay compensation of Rs.1,50,000/-only and litigation cost.

O.Ps. have contested this case by filing their written version stating that the complainants and the O.Ps. entered into an agreement dated 20.01.2018 in the developing project of the O.Ps. for purchasing a flat which was to be delivered within 40 months from the date of agreement for sale but the time period for delivery the same is not completed till the filing of this case. The O.Ps. have further stated that the construction work of the project is still going on it was only due to pandemic situation the development work is not smoothly going on. That is why delivery of flat was not done within time as such they have no deficiency in service. Accordingly the O.Ps. have prayed for dismissal of the case.

Points for determination

1.whether there is deficiency in service on the part of the OPs.

2.whether the complainant s are entitled to get the relief as prayed for

                                                                                            Decision with reasons

Admittedly, Complainants and Opposite Party no1&2 entered into an agreement for sale on 20.01.2018. Money receipt acknowledged by OPs shows that Complainants paid Rs 4,41,446/- as earnest/advance money to the OPs.

Complainants alleged that OPs did not start the construction work of the project “EVANIE ECONEST” till filing of this case. On the other hand, OPs have stated that their construction work is going on .

It appears from the Agreement for sale point no 6 that the proposed date of delivery of possession was within 40 months from the date of obtaining sanctioned building plan. Since the OPs stated that the construction work of the project is going on, therefore, it can  easily be  presumed that a building plan has been sanctioned by the local Municipality.

Further, it appears that the Complainant entered into the agreement for sale on 20.01.2018. After a lapse of more than 5 years OPs did not hand over  the possession of the proposed flat to the Complainants till date. Further, it appears from the letter dated 25.02.2021 sent by the OPs that they requested the Complainants to cancel the agreement for sale in order to get refund of the booking amount .

From the above discussion we are of the opinion that OPs have failed to deliver the flat of the Complainants within the promised time period which amounts to deficiency in service on the part of the OPs.

It further appears that the OPs have not stated when they will deliver the flat in favour of the Complainants. As per settled law, a Complainant cannot be waited for indefinite period for receiving the possession of a flat. Hence, an order for refund of the paid amount with an interest @8% in the form of compensation will be just and proper.

In the result, the petition of complaint succeeds.

Hence, it is

                                                                                                  Ordered

             that the Complaint Case being no CC137/2022 is allowed against the OPs on contest with cost.

          OPs are directed to refund Rs. 4,41,446/- (Rupees four lakh forty one thousand four hundred forty six) only with interest @8% p.a. from the date of deposit the same till realization in the form of compensation to the Complainants within 45 days from this date of order.

          OPs are further directed to pay Rs. 20,000/- towards litigation cost to the Complainants within 45 days from this date of order, failing which the entire amount shall carry interest @ 12 % p.a.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by

 [HON'BLE MRS. Sagarika Sarkar]
MEMBER