SAMIKSHA BHATTACHARYA, MEMBER
The complaint has been filed by the complainants under Section 17(1)(a)(i) of the CP Act, 196 against the OPs alleging deficiency in service.
The facts of the case in a nutshell are that the complainants and OPs entered into an agreement for sale executed on 19.06.2015 in respect of piece and parcel of flat measuring more or less 1200 sq. ft. super built up area being situated on 2nd floor east facing being Flat No. 3 and one car parking space on the ground floor front right side under the roof of the proposed building and with easement and other amenities and facilities and undivided right and interest attached thereto at KMC Premises No. 348/51, NSC Bose Road, Mailing Address 1/77 Naktala Government Scheme I, P.S. Jadavpur (Now Netaji Nagar), under KMC Ward No. 100 , Kolkata 700047, in the district of South 24 Parganas for a total consideration of Rs.51,00,000/-. The complainant paid Rs. 10,00,000/- as earnest money by an A/C payee Cheque being No. 723380 dated 19.06.2015 drawn on SBI, UP Petro Chemical Complex, UP. As per terms and conditions of the Agreement for Sale dated 19.06.2015, the OPs shall hand over the vacant complete flat within 24 months from the date signing agreement. It was also agreed that if any dispute arises regarding the transfer of property in question, the OPs would refund the entire amount so advanced or deposited. After lapse of time the complainants observed that the OPs did not show any interest about the constructional work of the property to comply with the terms and conditions of the Agreement dated 19.06.2015. When the complainants asked the reason for the same, the OPs always assured the complainants that they would hand over the scheduled flat and garage within the stipulated period as per agreement but even after lapse of 24 months the OPs did not handover the flat and garage as per agreement. On 21.06.2017, OPs sent a notice to the complainant under the caption “Intimation commencement and completion of G+IV multi storied building at the K.M.C. Premise No. 348/51, N.S.C. Bose Road, (mailing address 1/77. Naktala Government Scheme-I), P.O. Naktala, P.S. Jadavpur, (now Netaji Nagar), under Ward No. 100, Kolkata-700047” informing that the developer would hand over the flat and garage by October 2018. The complainants sent a letter dated 08.09.2018 to the OPs requesting to arrange for registration on the basis of the of the OPs dated 21.06.2017. But the OPs did not give any reply upon receipt of the same. Then on 07.02.2019 and 25.03.2019, complainants sent demand notice through their Advocate to return the amount Rs.10,00,000/- along with interest and compensation but the OPs did not reply the same. Hence the application praying for direction upon OPs to register the flat as per Schedule of the Agreement dated 19.06.2015 in the name of the complainants or to refund the amount paid by the complainants to the tune of Rs.10,00,000/- along with compensation of Rs.10,50,000/- on account of financial loss and injury and mental agony due to the negligent act of the OPs along with litigation cost. Upon receipt of notice OPs appeared before this Commission and filed their written version to contest the case. In their written version, OPs denied all material allegation inter alia stated that the allotment in another premises is possible and the complainants are also already received money from the OPs which is more than the legitimate claim of the complainants. The complainants could not file any single document of the alleged flat and ultimately alleged the agreement and alleged the supplementary agreement. The complaint has been filed for squeezing money from the developers which is not tenable in the eye of law. Hence they have prayed for dismissal of the complaint with huge cost.
Complainants filed evidence on affidavit, but no questionnaire has been filed by the OPs against the evidence on affidavit filed by the complainants though the opportunity was given to them to file questionnaire. The OPs also did not avail the opportunity to file their evidence on affidavit and as such the opportunity for filing evidence on affidavit by the OPs was closed. On the date of final hearing also, none appeared on behalf of the OPs nor filed any Brief Notes of Argument.
On the date of final hearing, only the Ld. Advocate for the complainant was present and filed the Brief Notes of Argument on behalf of the complainants along with statement of accounts towards payment of Rs.10,00,000/- to the OPs.
Ld. Advocate for the complainants has stated before this Commission that as per agreement the complainants have paid advance amount of Rs.10,00,000/- through cheque on 19.06.2015 to the OPs and in support of his argument, he filed the Statement of accounts of the complainant No. 1 wherefrom it appears that complainant Nol.1 paid an amount of Rs.10,00,000/- through cheque on 19.06.2015. the Ld. Advocate has further submitted that the complainant No. 1 is working for gain under the Government of Uttar Pradesh and he along with his family resides at his working place in the state of UP and could not keep vigilance to the construction work of the proposed building to be developed by the OPs. He was under impression that the OPs would complete the project within time. Upon receiving the notice dated 21.06.2017 from the OPs the complainants were in hope that the OPs would deliver the suit property to the complainants.
Ld. Advocate has further submitted that the OPs have violated the terms and conditions and as such the complainants are entitled to get the refund of advance amount paid by them along with adequate compensation.
The Ld. Advocate for the complainants has further submitted that the complaint has been filed by their constituted attorney namely, Sri Karnajit Das and the general power of attorney given by the complainants to their Constituted Attorney has been annexed with the petition of complaint as running pages 33, 34 and 35.
Upon hearing the Ld. Advocate for the complainants and on perusal of the entire material on record it appears to us that the evidence of the complainants has not been cross-examined by the OPs. OPs also failed to file their evidence on affidavit. There is no objection and/or preliminary objection about the maintainability of the present complaint in its present form by the OPs. Moreover, it is neither denied by the OPs that the complainants have entered into the agreement for sale dated 19.06.2015 nor the fact that the OPs have received Rs.10,00,000/- towards advance amount for the flat and car parking space in question. Though, in the written version, OPs have stated that complainants have received money but that was mentioned without any valid and cogent document. The OPs have further mentioned the existence of supplementary agreement in Para No. 11 of the written version, but no supplementary agreement has been filed by them. On the other hand, the complainants have filed the money receipt dated 19.06.2015 towards payment of receipt of advance amount issued by OPs with valid signature and stamp. As per letter dated 21.06.2017 issued by OPs the complainants waited till October 2018, in the hope of getting the flat and car parking space from the OPs and ultimately, OPs failed to commit their promise and the complainants filed the instant complaint on 30.08.2019. Therefore, it is crystal clear that complainants cannot wait for indefinite period for getting delivery of the property in question and the act of the OPs suffers from deficiency in service and unfair trade practice. In this connection, we can cite the judgment passed by Hon’ble National Commission passed in Ritu Hasija and Anr. vs. IREO Grace Realtech Pvt. Ltd. [2019 (2) CPR 250 (NC)] where the Hon’ble Commission held that “if a builder fails to deliver the possession of the flat/plot booked with him, within the time period committed for this purpose and is unable to justify the said delay, this, in my opinion, would constitute a defect or deficiency in service.”
In another judgment the Hon’ble National Commission, in Neena Mehrotra and Anr. Vs. M/s. Unitech Limited, reported in 2017(3) CPR 376(NC) has been pleased to hold that “in absence of any cogent explanation for failure to comply with stipulation of delivery of possession, opposite has committed deficiency in service as also has indulged in unfair trade practice. When the OPs are not in a position to offer the possession of the apartment, the said opposite party/company shall refund the amount with simple interest without any further liability and the allottee cannot be expected to wait for possession of the aforesaid apartment for indefinite period of time.”
As per above discussion and relying upon the above noted judgments, the complainants have substantiated their case.
It is our considered view that the complainants are entitled to get relief as prayed for.
As such, the complaint succeeds.
Hence,
It is
O R D E R E D
The complaint case being No. CC/677/2019 be and the same is allowed on contest against the OPs with cost.
The OPs are directed to refund Rs.10,00,000/- (Rupees ten lakh) only to the complainants along with interest @ 8% p.a. from the date of payment i.e., 19.06.2015 till the date of refund in the form of compensation within 45 (forty-five) days hereof.
If the OPs fail to pay the aforesaid amount within the stipulated period the refund amount shall carry interest @ 12% p.a. from 19.06.2015 till its full realization.
The OPs are also directed to pay litigation cost of Rs.15,000/- (Rupees fifteen thousand) only to the complainants within the aforesaid stipulated period.
If the OPs fail to comply with the above order within the above specified time, the complainants are at liberty to file execution case as per law.
The Complaint Case is, thus, disposed of, accordingly.
