The instant complaint U/s 12 of the ConsumerProtection Act, 1986 (for brevity ‘the Act’) is at the instance of an intending purchaser against a Private Limited Construction Company on the allegation of deficiency of service in a dispute of Housing Construction.

            Succinctly put, Complainant‘s case is that he contacted the authorized person of  OP at their site office and submitted an application being No. B-GTCEH/00553/15-16 bearing Unit No. SD-T-25 on the third floor of the proposed housing complex named Green Tech City ECO Homes on 11.02.2016. Complainant has paid Rs. 3,30,769/- to the OP as per their prescribed schedule. The OP has assured that the project will be completed within due time and the  subject flat will be delivered within January, 2018. Till date the OP did not start the construction of proposed housing project. Having no other alternative Complainant sent a letter dated  19.01.2018 requesting the OP to refund application money of Rs. 3,30,769/-  after cancelling his application but such letter was unattended . Ultimately, legal notice dated 13.02.2018 and 14.05.2018 were sent to the OP. No reply is received on the part of the OP.

            The acts and conducts of the OP clearly established that the OP is guilty of deficiency in service and unfair trade practice.  Hence, the Complainant has approached this Commission with a prayer for following reliefs:-

1. an order directing the OP to refund Rs. 3,30,769/- being application money with interest,
2. to pay  a sum of Rs.1,00,000/- as compensation for harassment and mental agony,
3. to pay Rs.10,000/- towards litigation cost.

           The OP by filing a Written Version has stated that the instant Consumer Case is barred by limitation and the Complainant is not a “Consumer” within the meaning of Consumer Protection Act. The claim as made in the Consumer Complaint is baseless, false and fabricated. This Commission has no pecuniary jurisdiction to entertain the complaint. The specific case of the OP is that the Complainant failed and neglected to make payment within the specified date  and there is breach of obligation on the part of the Complainant for which delayed the progress of the project. Despite non-payment of EMIs the OP did not cancel the agreement in spite of non-payment of EMIs. The infrastructure sector through in west Bengal through a bad period and there is a slow-down in the over all development for which the progress of the project is not started. The OP cannot be held responsible for such delay. There is  specific four major events in the Agreement. Therefore, the complaint should be dismissed with cost.

           Complainant Mr. Vikash Surana has tendered evidence through affidavit. The said person has also given reply against the questionnaire set forth by the OP. On the other hand,  Mr. Uday Modi, one of the Director / Authorized signatory of the OP has filed evidence through affidavit. The said Uday Modi has also given reply against the questionnaire set forth by the Complainant. Besides the same, both parties have also relied upon several documents and at the time of final hearing, both parties have also filed Brief Notes of Argument in support of their respective cases.

           On perusal of pleadings, evidence lead by the parties coupled with the documents annexed thereto, it would reveal that on 11.02.2016 Complainant submitted an application requesting the OP for booking their upcoming residential Unit situated in ECO Homes at Uttar Gazipur under Kashipur PS within the District of South 24 Pgs. against payment of  Rs.50,000/-. The OP vide letter dated 01.03.2016 informed the Complainant regarding booking of one residential Unit being No. “SD-T-25”on third floor in Block No. SD in the ECO Homes at Uttar Gazipur. It also appears from the said letter that the Complainant  paid total booking amount of Rs. 1,39,732/- to the OP and the total cost of the Unit and open car parking space is Rs. 13,96,000/-. Photocopies of money receipts goes to show that the Complainant have paid Rs. 3,30,769/- to the OP against booking of  residential unit being No. “SD-T-25” on the third floor in Block-SD at ECO Homes, Uttar Gazipur within the District of South 24 Pgs.

          It is well settled that after making payment of a bulk consideration amount, a purchaser cannot wait indefinitely for having a roof over his head. In that perspective, when the OP has failed to complete the project within the time frame and did not keep promise as per terms of the agreement, this itself amounts to deficiency in services. Complainant vide letter dated 19.01.2018 requested the OP to cancel the allotment of Unit No. SD-T-25 on third floor in Block- SD at ECO Homes on the ground that the project/tower is not yet to start and refund the deposited amount of Rs. 3,30,769/- with interest as per RERA Act. Despite service of request letter the OP did not refund the deposited amount and having no other alternative, Complainant issued legal notices dated 13.02.2018 and 14.05.2018 to the OP but both the notices were unattended.  

          On evaluation of materials on record,  it is quite evident that the Complainant being the “consumer” hired the services of the OP in a disputed residential Unit  and the OP has failed to keep their promise in handing over the flat and car parking space as per commitment in favour of the Complainant within the stipulated period and thereby deficient in rendering services within the meaning of  CP Act. Therefore we are considered view that the Complainant is entitled to refund the principal amount with reasonable interest, which we quantify at the rate of 9  percent p.a. from the date of respective deposit till the date of actual refund with Rs. 5,000/- as litigation cost.

          In view of the above observation, the complaint is disposed off on contest against the OP with following directions:-

1. The OP is directed to refund Rs.3,30,769/- (Rupees three lacs thirty thousand seven hundred sixty nine) only along with compensation in the form of simple interest  at the rate of 9  percent p.a. from the date of respective deposit till the date of actual refund along with litigation cost of Rs. 5,000 (Rupees five thousand) only.  
2. The OP shall pay the foresaid awarded amount within 60 days from the date of passing of this order, failing which the rate of interest is increased  9  to 12  percent p.a.

        Order be communicated to the parties as per rules. The judgment be uploaded forthwith on the website of this Commission for perusal of the parties.