HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. The instant complaint under section 12 of the Consumer Protection Act, 1986 ( in short, ‘the Act’) is at the instance of the complainant Sabiha Khatun against the Developers on the allegation of deficiency in service on the part of the opposite parties in a consumer dispute of housing construction.

2. In a capsulated form, the complaint case, in short, is that the complainant and her deceased husband entered into agreements for sale with the opposite parties for purchasing two flats bearing No. EEH003698 and EEH004068 respectively and a car parking space at a consideration of ₹38,40,950/- (Rupees thirty eight lakh forty thousand nine hundred and fifty only) for flats and ₹02,50,000/- (Rupees two lakh and fifty thousand only)  for car parking space.

3. Further case of the complainant is that at the time of execution of the said agreements for sale, the husband of the complainant paid ₹10,75,465/- (Rupees ten lakh seventy five thousand four hundred and sixty five only) and ₹50,000/- (Rupees fifty thousand only) respectively.

4. After execution of the agreements for sale, the husband of the complainant passed away on 14.01.2019. In the said agreements for sale there was a provision for handing over both the flats within forty months by the opposite parties. But till date no construction has been raised by the opposite parties company.

5. Further case of the complainant is that since 2019 the advance money paid by the complainant is lying with the opposite parties company. After demise of the husband of the complainant, the complainant repeatedly requested the opposite parties for refund of the said advance amount but that amount has not been refunded to the complainant by the opposite parties company. Hence, the complainant approached this Commission with a prayer for the following relief(s) :-

“Your Honour may graciously be pleased to direct the respondent company to refund the amount of Rs.11,25,465/- after deducting the statutory deduction as stated in the terms and conditions of the agreement dated 23.01.2018 and / or to direct the respondent company to pay an amount of Rs.10 lac as a cost of mental agony of the applicant due to inaction of the respondent herein and / or to pass such further order or order as Your Honour may deem fit and proper”.

6. Notices were duly issued upon the opposite parties and notices were duly served upon the opposite parties but the opposite parties did not turn up and did not contest the case. As such, the case was heard ex parte against both the opposite parties. On receipt of the notices the opposite party Nos. 1 & 2 did not turn up and did not contest the case. Notices upon the opposite party Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 & 14 have been returned with postal remark ‘unclaimed’ which amounts to good service. The opposite parties did not turn up before this Commission. So, the case was heard ex parte against all the opposite parties.

7. The complainant filed evidence on affidavit.

8. The overwhelming evidence on record makes it abundantly clear that  the complainant and her husband entered into two agreements for sale at a consideration of ₹38,40,950/- (Rupees thirty eight lakh forty thousand nine hundred and fifty only) and ₹50,000/- (Rupees fifty thousand only) respectively. The complainant’s husband at the time of agreements paid ₹10,75,465/- (Rupees ten lakh seventy five thousand four hundred and sixty five only) and ₹50,000/- (Rupees fifty thousand only) respectively towards advance amount. There was a provision in the agreements for sale for handing over the possession of the flats within 40 (forty) months but no construction has yet been raised by the opposite parties company. So, since 2018 advance money paid by the complainant are lying with the opposite parties. After demise of the husband of the complainant, the complainant repeatedly requested the opposite parties for refund of the said advance amount but the said amount has not yet been refunded. On consideration of the said evidence it can be said that the opposite parties have failed to construct the building and the opposite parties could not keep their promise. As such, the opposite parties are deficient in rendering services towards a ‘consumer’ as per Consumer Protection Act.

9. To prove the case, the complainant has produced the agreements for sale (page 35 and onwards, two money receipts (pages 67 & 71), copy of letter of the complainant for cancellation of the agreements and refund of the advance amount (page 72) in support of their case. Therefore, on consideration of the evidence of the complainant and the documents it is palpably clear that the opposite parties are deficient in rendering services to the consumer as per the Consumer Protection Act.

10. On careful perusal of the record it also appears to me that there is absolutely no contrary material to counter or rebut the claim made by the complainant. So, the complainant is entitled to get the refund of money amounting to ₹11,25,465/- (Rupees eleven lakh twenty five thousand four hundred and sixty five only).

11. Based on the above discussion, the complaint case filed by the complainant is allowed ex parte.

12. The opposite parties are directed to refund the amount of ₹11,25,465/- (Rupees eleven lakh twenty five thousand four hundred and sixty five only) to the complainant along with 9% per annum interest from the date of the receipt till the date of payment. The opposite parties shall pay a sum of ₹30,000/- (Rupees thirty thousand only) as cost of litigation to the complainant.

13. The order be complied with by the opposite parties within a period of 45 days from the date of receipt of the order. If the opposite parties fail to comply with the direction made above within the period mentioned above, then the complainant is at liberty to get the order implemented with due course of law.

14. The complaint case is, thus, disposed of accordingly.

15. Let a plain copy of this judgment be given to the complainant free of cost. A copy be also served upon the opposite parties by registered post / speed post with A/D as early as possible.