SRI SHYAMAL KUMAR GHOSH,  PRESIDING MEMBER

1. The instant consumer case has been filed against the opposite parties praying for refund of money along with interest or alternatively praying for handing over the possession of the flat by means of execution and registration of the deed of conveyance in favour of the complainants as per agreement dated 02/02/2018, compensation, costs etc.

2. The factual matrix of the case is that one Santanu Bhaumik and Tapas Kumar Bhaumik both have intended to purchase a flat from the opposite parties/developers and they have entered into an agreement for sale dated 13/02/2014 with the developers in respect of purchase of one self contained flat on the 6^th floor, Block – ‘A’ measuring area 1500 sft along with car parking space on the ground floor measuring area 100 sft for a total consideration amount of Rs.61,00,000/- and out of which Rs.26,50,000/- has already been paid on or before signing the said agreement for sale.

3. That on 02/02/2018 another agreement for sale has been executed by and between the developers and the complainants for purchasing one self contained flat on the 4^th floor , Block – ‘B’ measuring area 1150 sft along with car parking space measuring area 100 sft on the ground floor in place of 6^th floor for the total consideration amount of Rs.41,00,000/- and out of which Rs.26,50,000/- and thereafter Rs.3,50,000/- ie total amounting to Rs.30,00,000/- has already been paid to the ops 1 to 3 developers.

4. Be it mentioned here that Sri Santanu Bhaumik is son of the complainants and Sri Tapas Kumar Bhaumik is brother of the complainant no-2.

5. Thereafter, on several occasions the complainants have visited the office of the ops 1 to 3/developers with a request for delivery of the possession and also for execution and registration of the deed of conveyance in favour of the complainants but they have failed to pay any heed regarding this matter.

6. That all sorts of activities of the opposite parties No. 1 to 3/developers are the glaring example of gross negligence and deficiency in service on their part.

7. Having no other alternative the complainants have rushed to the door of the Commission praying for certain reliefs as prayed for against the opposite parties.

8. It is revealed from the order no – 7 dated 24/02/2022 that the opposite parties 1 to 3/developers have already debarred from filing written version and as such the case has already been fixed for ex-parte against the ops No. 1 to 3.

9. One interlocutory petition being no – IA/442/2022 has been filed by the complainants praying for deletion of the names of the opposite parties 4 and 5. Having heard the ld counsel and upon careful perusal of the relevant documents and papers, the instant interlocutory application has already been allowed and the names of the ops 4 and 5 be deleted from cause title of the instant Consumer Case.

10. Ld counsel appearing for the complainants has argued that on 02/02/2018 the agreement for sale has been executed by and between the developers and the complainants in lieu of the agreement for sale dated 13/02/2014 for purchasing one self contained flat on 4^th floor Block – ‘B’ measuring area 1150 sft along with open car parking space on the ground floor measuring area 100 sft for a consideration amounting to Rs.41,00,000/- and out of which the complainants have already paid Rs. 30,00,000/- to the ops 1 to 3/developers. But instead of repeated requests, the ops 1 to 3/developers have failed to hand over the possession of the said flat by means of execution and registration of the deed of conveyance or they have failed to make any refund of Rs.30,00,000/- along with interest. Accordingly the ld counsel has prayed for handing over the possession of the said flat in question by means of execution and registration of the deed of conveyance or alternatively refund of money along with interest, compensation, costs etc.

11. The case record has been taken up for ex-parte hearing.

12. We have heard the ld counsel appearing for the complainants at length and in full. The argument has been concluded.

13. We have perused the materials available on record meticulously.

14. Upon careful perusal of the agreement for sale dated 13/02/2014, it appears to us that one Sri Santanu Bhaumik son of Sri Manas Kumar Bhaumik and Sri Tapas Kumar Bhaumik son of Late Suresh Chandra Bhaumik both have entered into aforesaid agreement with the developers and the land owners in respect of purchasing one self contained flat measuring area 1500 sft on 6^th floor (North East West facing) and with open car parking space under the roof for total consideration of Rs.61,00,000/-. Upon careful perusal of the money receipts dated 09/01/2013 and 22/11/2013 it appears to us that Sri Tapas Bhowmik paid Rs.1,50,000/- and Rs.20,00,000/- respectively i.e. total amount of Rs.21,50,000/- and to that effect the ops 1 to 3/developers have acknowledged the same and have also issued the aforesaid money receipts in favour of Sri Tapas Kr. Bhowmik. 

15. Upon careful perusal of the agreement for sale dated 02/02/2018, it appears to us that the complainants viz. Smt Ratna Bhaumik wife of Sri Manas Kumar Bhaumik and Sri Manas Kumar Bhaumik son of Late Suresh Chandra Bhaumik both have entered into aforesaid agreement with the developers and the land owners in respect of purchasing one self contained flat measuring area 1150 sft on 4^th floor (South East facing) in Block – ‘B’ and with open car parking space for total consideration of Rs.41,00,000/-. Upon careful perusal of the money receipts dated 11/10/2017,15/12/2017 and 02/02/2018 it is very clear to us that the complainants have already paid Rs.4,00,000, Rs.1,00,000/- and Rs.3,50,000/- respectively i.e. total amounting to Rs. 8,50,000/- and to that effect the ops 1 to 3/developers have acknowledged the same and have also issued the aforesaid money receipts in favour of the complainants. So, from the aforesaid event it is crystal clear to us that the complainants have paid major portion of total consideration amount to the ops/developers for purchasing the aforesaid flat in question and as such the complainants come well within the purview of the definition of the ‘consumers’ as per section 2(d)(ii) of the Consumer Protection Act 1986.

16. It is admitted and undisputed fact that Sri Santanu Bhaumik is son of the complainants and Sri Tapas Kumar Bhaumik is brother of the complainant no-2. At the  time of final hearing ld counsel appearing for the complainants has argued that the flat on the 6^th floor, Block-‘A’ measuring area 1500 sft along with car parking space has not yet been completed within the stipulated period of time in pursuant to the agreement dated 13/02/2014 in habitable and useable condition and for that reason another agreement dated 02/02/2018 has also been executed by and between the developers and the complainants for purchasing one self contained flat on the 4^th floor, Block-‘B’ measuring area 1150 sft along with car parking space measuring area 100 sft on the ground floor in place of 6^th floor for the total consideration amount of Rs.41,00,000/-. When the 6^th floor flat along with car parking space has not yet been made ready for delivery due to incomplete construction, the another agreement for sale in respect of 4^th flat has been executed between the parties to the case. Upon careful perusal of the record, it is crystal clear to us that regarding 6^th floor, the payment of Rs.21,50,000/- has already been made in favour of the developers and thereafter the complainants have paid further Rs.8,50,000/-/- to the developers. So, it is proved that the developers have already received Rs.(21,50,000/- plus Rs.8,50,000/-)ie Rs. 30,00,000/- and accordingly they have acknowledged the same.

18. It is fact that the agreement for sale has been executed between the parties on 02/02/2018 and the developers, by virtue of said agreement, have promised to hand over vacant complete flat to the purchasers/complainants within 90 days from signing of this agreement.  It appears to us that the agreement has been signed in the year 2018 but till date no flat has been delivered to the complainants. So, there is no hesitation to hold that the ops 1 to 3/developers have committed gross negligence/fault which comes well within the purview of the deficiency in service on their part.

19. By virtue of the aforesaid agreement for sale, the developers also undertook that if in case of any dispute arises regarding the transfer of the property or flat in question the developers shall refund the entire amount so advanced or deposited, to the intending purchaser or purchasers within the stipulation to be decided by the parties and the purchasers also can take appropriate steps in accordance with law for taking possession of the flat in question.

20. So as per aforementioned terms and conditions clearly enumerated in the agreement for sale dated 02/02/2018, the developers/ops 1 to 3 are bound to refund the sum amounting to Rs.30,00,000/- to the complainants in order to resolve the disputes between the parties to the case. Moreover, it is not possible for the complainants to wait for indefinite period of time for getting their flat in question and in this respect we can safely rely upon the decision Suniti Kumar Bhat and others Vs Unitech Acacia Projects Pvt Ltd and others reported in 2018(3)CPR 795 (NC) wherein the Hon’ble National Commission held that when the builder fails to construct the flat on time, he is entitled to pay compensation in the form of interest and cost of litigation. In this respect of we can depend upon another remarkable decision FORTUNE INFRASTRUCTURE AND ANOTHER VS TREVOR D’LIMA AND OTHERS REPORTED IN (2018) 5 SCC 442 wherein Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of amount paid by him along with compensation.  

21. It is not last but least that the allegations against the opposite parties no-1 to 3 clearly stated in the petition of complaint remains unchallenged as no written version has been filed in order to take defence against the said petition of complaint. Moreover, the opposite parties no-1 to 3 kept mum against the said allegations brought in the aforesaid consumer case filed by the complainants and accordingly there is no hesitation to hold that such silence clearly proves the negligence/fault on the part of opposite parties no-1 to 3.  

Keeping in view of the above observations and finality of the litigation there is no hesitation to hold that there is a clear gross negligence and deficiency in service on the part of the opposite parties 1 to 3 and accordingly we allow the instant CC case ex-parte against the ops 1 to 3 with costs. Hence,

O R D E R E D

The opposite parties 1 to 3/developers are directed to refund of Rs.30,00,000/- (thirty lakh) only to the complainants within 60 days from the date of this order.

The opposite parties 1 to 3/developers are further directed to pay compensation of Rs.1,00,000/- (one lakh) only and also to pay litigation cost of Rs.20,000/- (twenty thousand) only within the aforesaid stipulated period of time in default the whole awarded amount ie Rs.(30,00,000/- + 1,00,000/- + 20,000/-) = Rs.31,20,000/- shall carry interest @ 10% p.a. till full realization.

No order is passed against the opposite parties no-4 and 5 as their names have already been deleted from the cause title of the aforesaid CC case by virtue of filing an interlocutory application being no-IA/442/2022.

In case of non compliance of order the complainants are at liberty to put the Final order in execution.

The instant CC case is thus disposed of.

Note accordingly.     

Let a copy of this order be supplied to the parties free of cost.