Judgement MR. AYAN SINHA MEMBER This is a complaint u/s of the CP Act, 2019 made by the complainant against the OPs and accordingly prays for a direction upon the OPs to refund the amount of Rs.3,20,980/- along with interest @18% p.a., to pay award for mental suffering and harassment along with litigation costs. FACTS IN BRIEF The complainant approached the OPs for the purpose of booking of a flat “King Town”, New Town, Rajarhat, New Town project as mentioned in the schedule of agreement and accordingly an agreement for sale was executed on 07.11.2017 between the OP No.1 being the company, represented by OP No.2, the constituted attorney on behalf of the said company. At the time of execution of the said agreement with mentioned terms and conditions, complainant paid Rs.3,20,980/- to the OPs which includes the possession for the same to be handed over to the complainant by the OPs within 40 months. After the booking of the schedule flat, the complainant was totally in dark and since nothing was heard about development of the said project, thereafter, issued a legal letter to the OPs through email dated 12.05.2019 and wanted to know about the construction and development of the said project to which the OPs expressed their desire to meet complainant without informing anything about the construction. After getting no response to his another email dated 30.05.2019, issued to the OPs, complainant approached CA&FBP, Govt. of W. B against which the OPs did not appear for the meeting. Complainant issued legal notice on 20.09.2019 to which OPs informed to send the original documents after which the refund process will be initiated, but he did not submit the same since the OPs being very influential as stated in his petition of complaint. Thus, being suffered from mental harassment and having not received the flat nor the booking amount refunded, the complainant filed this instant case. Notices were served upon the OPs. But the OPs did not contest this case by filing written version and so, the case was heard ex parte against them vide Order dated 27.07.2022. Complainant adduced evidence on affidavit in support of his contention where he has reiterated the facts as mentioned in the complaint. It may be noted, due to inadvertence a date was fixed on 12.08.2022 for filing questionnaire by the OPs, although the OPs were heard ex parte against which the complainant had filed replies to the questionnaire of the OPs. But the OPs did not appear thereafter. Be that as it may, however, at the stage of final hearing, BNA along with certain originals were also filed by the complainant. POINTS FOR DETERMINATION - Whether the complainant is a ‘Consumer’ under the CP Act, 2019?
- Whether the complaint is maintainable against the OPs as alleged?
- Whether the complainant is entitled to the relief (s) as prayed for?
DECISION WITH REASONS All points are taken up together for the sake of brevity to avoid repetition of facts. We have carefully perused all the documents/annexures filed by the complainant. On scrutiny of the agreement for sale, it is very much clear that the complainant booked one self-contained residential 2 BHK flat (covered areas of the flat 346.60 sq. ft. along with an added common areas of 99.74 sq. ft.) more or less at “King Town”, New Town against which a sum of Rs.3,20,980/- had been paid by the complainant to the OPs on several dates and the last payment was made on 24.10.2017 as booking amount out of the total consideration for the said property as mentioned in the schedule and the possession for the said flat was to be delivered within 40 months from the date of the said agreement. Accordingly the complainant is a ‘Consumer’ and the instant case under CP Act, 2019 is maintainable. On further perusal of the record, we found there had been certain email communicationsbetween the complainant and the OPs where complainant requested for the refund of booking amount of Rs.3,20,980/-. As he did not get any favourable reply about the progress of the flat to which OPs had sent an email dated 10.06.2019 without whispering anything about the progress of the flat, except requesting the complainant for a meeting for his disappointment and therefore, it is an admitted fact that the OPs even after receipt of booking amount, failed to enlighten the complainant for the progress of the said project. So, we are of the view, that the complainant is entitled to get refund of Rs.3,20,980/- from theOPs along with interest. Since, we are allowing interest on the booking amount, we are not inclined to pass any order of compensation for mental harassment and suffering. We also opined, it would be just appropriate, if we can direct the OPs to pay Rs.5,000/- as litigation cost. Hence, it is ORDERED That the instant complaint be and the same is being allowed ex parte against the OPs. OPs are directed to pay Rs.3,20,980/- (Rupees Three Lakh Twenty Thousand Nine Hundred Eighty Only) along with interest @9% p.a. to the complainant from the date of last payment i.e. on 24.10.2017 made by the complainant, until realization in full. OPs are further directed to pay Rs.5,000/- (Rupees Five Thousand Only) as litigation cost to the complainant. OPs are to pay the aforesaid awarded amount to the complainant within 45 days from the date of this order. Both the OPs are jointly and severally liable to pay the said amount to the complainant. If the Order is not complied with by the OPs within the aforesaid period, the complainant is at liberty to proceed in accordance with law. | 
