Case of the complainant in brief is that the Complainant being an intending purchaser entered into an agreement for sale on 21.05.2019 with the Opposite party-Evanie Infrastructure PVT. LTD. for purchasing a flat in their ongoing project at Usashi Prince Town Platinum, Hatisala,New Town, Kolkata - 700135. Accordingly the Complainant paid an amount of Rs. 6, 90,804/- in four installments to the O.P. no. 1. There after the Complainant found that the O.P. no.1 has not started construction work of the said project. The complainant informed the said matter to Authorized Representative of the O.P. no.1 who provided an alternate flat situated at Evani Econest Project at Rajarhat, constructed by the O.P. no. 2 company which is a flagship company of O.P. no. 1. Accordingly the complainant submitted a formal written request to transfer her purchased flat from Usashi Prince Town Platinum project to Evanie Econest Project. It is stated in the petition of complaint that both the Opposite Parties are controlled by the self same directors and self same authorized person being O.P. no. 4. It is further stated in the petition of complaint that being satisfied with the “Evani Econest” project the Complainant again entered into an agreement with O.P. no. 2 on 10.08.2019 for purchasing a 3BHK flat, having a total covered area of 895.87 sq.ft. on the 2^nd floor of the proposed building where O.P. no. 1 was a signing party. Thereafter the O.Ps. requested the Complainant to make payment of Rs 60,000/- to O.P. no. 2. Accordingly the complainant paid the said amount receiving which the O.P. no. 2 acknowledged the same. After a lapse of considerable time the Complainant visited the construction project of the O.P. no. 2 and he found no construction work has been started by the O.Ps. The complainant again informed the said matter to the Authorized Representative of the O.Ps. Thereafter, the complainant was informed to shift her purchase to another project namely “Usashi Exotica” situated at Birati and the complainant has been stated that 80% of the construction work was already completed at the said project and very soon OPs were going to deliver the flat by October, 2020. However, in August, 2020 an agreement was presented to the complainant wherein it was stated that the delivery of flat would take at least 40 months to complete the said project. Knowing the facts, the complainant immediately rushed to the representative of the OPs to know the actual state of affairs but OP did not pay any heed to that effect. Finding no other alternative, the complainant by sending letter dated 09.12.2020 requested the O.Ps. to cancel the allotment of the flat of the complainant and refund the money along with banking interest rate. In reply the O.P. No. 2 sending an e-mail dated 06.01.2021 agreed to make arrangement for refund of payment made by the complainant and provided a contact number for assistance. However, the complainant came to know that it would take months to process the cancellation request and years to process to refund of the said payment. Finding no other alternatives, complainant filed this case praying for direction upon the O.Ps. to refund Rs. 7,50,804/- with 25% appreciation along with the interest @ 18% per annum from the date of booking payment till realization. Complainant also prayed for Rs. 10, 00,000/- towards the mental agony and harassment and Rs. 2,00,000/- towards litigation cost.

O.Ps. have contested this case by filing written version, denying and disputing all the material allegations made against them, stating that if any dispute arise between the developers and purchasers the said dispute shall be referred to arbitration and the said sole arbitrator shall have the power to pass and give both interim order and award in regard to adjudication of the dispute and differences between the parties but the complainant failed to do it. O.Ps. have further stated that the O.P. Nos. 1 and 2 are the private limited company incorporated under the Companies Act, 1956 and the O.P. No. 3 is the Director of the Company whereas O.P. No. 4 is not the Director of the Company. The O.Ps have further stated that the O.p. Nos. 1 and 2 are the renowned real estate developer of North Kolkata being duly represented by its authorized representatives having its principal place of business at 81, Golaghata, Kolkata – 700048. O.Ps. have further stated that they enter into an agreement for sale with the complainant regarding a flat in the concerned project of the O.P. on 21^st day of May, 2019 and 10^th August, 2020 where a flat was to be delivered within 40 months from the date of agreement for sale. So, the time period was not over till date before the filing of this case. O.Ps. have further stated that the construction work of the project is still going on and also due to pandemic situation the development work was not smoothly going on for that reason the delivery of flat was not done within time. Accordingly, the O.Ps. have prayed for dismissal of the case with cost.

Points for determination

1. Whether there are deficiency in service on the part of the O.Ps.
2. Whether the complainant is entitled to get the relief as prayed for.

Decision with reasons

 Both the points are taken up together for comprehensive discussion.

Complainant filed this case praying for refund of the booking amount paid by him to the O.Ps. On perusal of the memo of consideration acknowledged by O.P. No.1 it appears that the complainant paid Rs. 7, 88,895/- to the O.P. no. 1 as per agreement for sale dated 10.08.2020. Prior to that the complainant entered into an agreement for sale with O.P. No. 2 on 21.05.2019 by paying the same amount which after entering into the agreement for sale with OPno1 the OPno2 transferred in favour of the O.P. No. 1. On perusal of the mail, dated 6^th January, 2021 sent by “Evanieinfra.com” to the complainant, it appears that the representative of the O.P. was taking care of the refund procedure and the allied matter related to refund. The O.P.2 – Evanie Infra requested the complainant to get in touch with their representative.  Therefore, it is evident that the O.Ps promised to refund the paid amount of the complainant in favour of her. Since the year 2021 till date O.Ps. have not refunded the paid amount of the complainant. Deviation from the promise to refund the paid amount amounts to deficiency in service on the part of the O.Ps.

Since the complainant paid Rs. 7,88,895/-  in the year 2019 to the O.Ps and till date the said amount did not disburse in favour of her, such inaction of the O.Ps. compelled the complainant to file this case. Therefore, the O.Ps. are liable to pay interest @ 8% on the paid amount from the date of deposition till realization in the form of compensation and Rs. 30,000/- towards the litigation cost to the complainant.

Both the points are decided accordingly.

In the result, the petition of complaint succeeds.

Hence, It is

                                                             Ordered

  that the complaint case being No. CC/148/2021 is allowed on contest against O.Ps. with cost. O.Ps. are directed to refund Rs. 7,50,804/- to the complainant along with interest @ 8% per annum from the date of deposit of the amount till realization towards compensation to the complainant within 45 days from this date of order.

O.Ps are further directed to pay Rs. 30,000/- towards litigation cost to the complainant within 45 days from this date of order, failing which the entire amount will accrue interest @ 12% per annum.

Dictated and Corrected by

[HON'BLE MRS. Sagarika Sarkar]
MEMBER