West Bengal

Kolkata-II(Central)

CC/116/2020

Lipika Maity - Complainant(s)

Versus

M/S. River Bank Developers Pvt. Ltd. - Opp.Party(s)

Ayan Paul, Susmita Ghosh

10 May 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
KOLKATA UNIT - II (CENTRAL)
8-B, NELLIE SENGUPTA SARANI, 7TH FLOOR,
KOLKATA-700087.
 
Complaint Case No. CC/116/2020
( Date of Filing : 31 Jul 2020 )
 
1. Lipika Maity
C-12,Purbadanga,Santoshpur,P.S.Survey Park,Kolkata-700075.
2. Ritwika Maity
C-12,Purbadanga,Santoshpur,P.S.Survey Park,Kolkata-700075.
...........Complainant(s)
Versus
1. M/S. River Bank Developers Pvt. Ltd.
225C,A.J.C.Bose Road, 4th Floor, P.S.Bhawanipur,Kolkata-700020.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. Swapan Kumar Mahanty PRESIDENT
 HON'BLE MRS. Sahana Ahmed Basu MEMBER
 HON'BLE MR. Ashoke Kumar Ganguly MEMBER
 
PRESENT:Ayan Paul, Susmita Ghosh, Advocate for the Complainant 1
 
Dated : 10 May 2022
Final Order / Judgement

FINAL ORDER/JUDGEMENT           

SHRI SWAPAN KUMAR MAHANTY,   PRESIDENT

 

            Brief facts of the case are that the OP is an existing company within the meaning of  the Companies Act 2013 and is engaged in the business of Real Estate Development and various housing projects. Being induced by the superfluous description of amenities  and also considering the formidable Brand Name  of OP company, Complainants had decided to purchase a Apartment  in the project namely Hiland Greens, phase II  and accordingly, they made an application for allotment upon payment of Rs. 50,000/-. OP vide letter dated 08.12.2016 allotted Apartment No. 7B5 on the 7th  floor of Tower-6 at the said project along with a car parking space to the complainants. Out of total Sale price, complainants have already paid Rs. 41,68,415/- to the OP against money receipts. As per General Terms & Conditions, possession of the apartment is to be handed over within 42 months from the date of allotment letter. Despite discharge of all reciprocal obligations, the OP failed to keep it’s commitment and huge delay has occurred on their part for reasons solely attributable to them. Despite receiving substantial advances, the OP did not bother to execute and register deed of conveyance  and handover possession of the apartment and car parking space to the complainants  which is itself a gross violation of law. Complainants requested to refund the booking amount but the OP did not refund the deposited  amount and also depriving the complainants. OP holds the money of the complainants for indefinite period. Such conduct of the OP clearly bears the omen of unfair trade practice. Demand notice of the complainants was unattended.

Alleging unfair trade practice and deficiency in service on the part of the OP, the complainants have filed the present complaint seeking refund of booking amount including interest, compensation and litigation cost.

OP did not resist the consumer complaint despite service of notice. No WV is filed by the OP within the statutory period. Thus, the case runs ex parte against the OP. The OP filed Miscellaneous Application being No. 270/2021 praying for recall the order dated 08.02.2021 on the ground stated therein. Such application was rejected on contested vide order dated 03.02.2022.

In support of their case,  the complainant No. 1 Smt. Lipika Maity has tendered evidence supported by an affidavit and also relied documents annexed with the complaint petition. Complainants have also filed written argument. We have heard argument on merit and have also perused the record.

The Ld. Advocate for the complainants argued that there is gross negligence and deficiency in service on the part of the OP as despite payment of Rs. 41,68,415/- out of total sale price. No Construction was done within the stipulated period of 42 months. Complainants  requested the OP to handover physical possession of the apartment  with car parking space but in vain. Ld. Advocate for the complainants further submitted at present there is no existence of the project work viz. “Highland Green, Phase II”. The OP did not bother to execute and register deed of conveyance which is itself a gross violation of law. There is no possibility to hand over the said apartment  with car parking space to the complainants in near future. Thus, the Ld. Advocate for the complainants has prayed for refund booking amount of Rs. 41,68,415/-  with compensation, interest and litigation cost.

Before explaining the other issues involved in the complaint case, we try to decide whether the instant case falls within the  purview of Consumer Protection Act and there is any gross negligence or deficiency in service on the part of the OP.

We note that the complainants have  booked a apartment being No.  7B5 on the 7th  floor of Tower-6  measuring an area of 1060 sq. ft.  (Supre built up area) at “Highland Greens Tower-6” with a car parking space  and the OP vide letter dated 08.12.2014 conformed the said booking subject to certain terms and conditions. On perusal of the photocopies of money receipts,  it is clear that the complainants have already paid Rs. 41,68,415/- to the OP out of total sale price. Thus, the complainants come within the definition of “Consumer” according to Consumer Protection Act, 2019.

As per General Terms & Conditions, possession of the apartment and car parking space  is to be handed over within 42 months from the date of allotment letter dated 08.12.2014 but the OP did not offer possession of the apartment  and car parking space to the complainants despite several request. Having no other alternative, complainants requested the OP to cancel the booking of apartment and car parking space with a request to refund the amounts paid by them with applicable interest. In spite of cancellation as well as commitment the OP failed to refund the booking amount along with interest. Even demand notice  of the complainants was unattended. It is true that no WV has been filed by the OP though several opportunities were given to them for filing WV yet they have failed to file the same and as such the allegation stated in the complaint petition remains unchallenged.  Regarding this matter we can safely state that on failure to file WV by the OP tantamount to admission of the allegations stated in the complaint petition. Demand Notice clearly reveal that there is continues negligence and deficiency in service on the part of the OP. It is very unfortunate that the OP has failed to start construction of project within stipulated period as mentioned in the General Terms & Conditions and ultimately, complainants have cancelled the booking. It is not our expectation that the complainants by any means suffer from loss of money and time for the breach of the General Terms & Conditions on the part of the OP. Under the above facts and circumstances, the gross negligence and deficiency in service on the part of the OP is proved and the complainants are entitled to get relief as prayed for.

The Hon’ble Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, I  (2018) SLT556-II (2018) CPJ1 (SC)= (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure  Ltd. Vs. Govind Raghavan III (2019) SLT 435=II  (2019) CPJ 34  (SC)=(2019)5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, III (2019) SLT 631=II (2019) CPJ29 (SC)2019 (6) SCALE 462 and Wg. Cdr. Arifur Rahman Khan Vs. DLF  Southern Homes Pvt. Ltd. VI  (2020) SLT 50=IV  (2020) CPJ 10 (SC)=2020 16 SCC512 held the buyer cannot be made to wait for unlimited period for possession.

Based on the discussion above  and the law laid down by the Hon’ble Supreme Court, we are disposed of the consumer case in the following terms:-

  1. OP is directed to make payment of Rs.  41,68,415/-  ( Rupees forty one lacs sixty eight thousand four hundred fifteen) only to the complainants.
  2. OP is further directed to make payment of Rs.  2,00,000/- (Rupees two lac)  only as compensation for harassment and mental agony caused to the complainants due to deficiency in service.
  3. OP is also directed to pay Rs. 25,000/- (Rupees twenty five thousand) only as cost of litigation as cost of litigation to the complainants.
  4. Above payments shall be made within 08 weeks from the date of this order failing which the amount shall carry interest  at the rate of 9  percent per annum from the date of the order till its realization.

Consumer case is thus allowed ex parte against the OP and disposed of as per above observation.

Copy of the judgment be supplied to the parties as per rules. Judgment be uploaded on the website of this Commission forthwith for perusal of the parties.

 
 
[HON'BLE MR. Swapan Kumar Mahanty]
PRESIDENT
 
 
[HON'BLE MRS. Sahana Ahmed Basu]
MEMBER
 
 
[HON'BLE MR. Ashoke Kumar Ganguly]
MEMBER
 

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