Date of Filing : 07 July, 2021.
Date of Judgement : 30 June, 2023.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
This case arises when Mrs. Sunita Harjani, herein after called the Complainant, filed a complaint under Section 35 of the Consumer Protection Act, 2019, herein after called the said Act, against (1) M/s. Usashi Realstates Pvt. Ltd., (2) Mr. Supriya Patra and (3) Mr. Arnab Roy, hereinafter called the Opposite Parties or O. Ps., alleging deficiency in service occurred from the part of the O. Ps.
The facts, as stated in the complaint and emerged from the documents attached with it, are that the Complainant, being allured by the advertisement of the O. P. – 1 company that they were going to develop a 870 decimals of land purchased by them lying and situated at Mouza – Hatishala, within the Police Station – Kolkata Leather Complex, by way of Housing Projects named and styled as “Prince Town Platinum” and also “Prince Town”, approached the O. Ps. intending to purchase one residential flat in the project. After being preliminary satisfied with the assurance given by the developer/ company about the project and the desired flat, complainant entered into an Agreement for Sale on 28/12/2017 with the O. P. – 1 company for purchasing one self-contained 2BHK flat admeasuring more or less 301 sq. ft. covered area on the 2nd floor of Phase – I at “Prince Town Platinum” for a total consideration of Rs.5,98,990/-. Complainant paid Rs.2,07,652/- to the O. P. – 1 company through two cheques and money receipts were given to her. A pre-allotment letter was issued in her favour on 22/09/2016. As per the agreement, the O. P. – 1 company was to complete the project within 40 months, i. e. within April, 2021. But, as the complainant alleges, till filing this case the O. P. – 1 company has not started the project yet and the project site lying vacant with full of wild plants. During her visit to the project site in August, 2020 she found that the project area was lying vacant with full of wild plants. Thereafter, whenever the complainant contacted with the O. P. – 2 & 3, they started to avoid her. Finding no other alternative she sent a legal notice to the O. Ps. through her advocate on 27/11/2020 but no response was received by her. Consequently, she filed this instant complaint before this Commission praying to direct the O. Ps. (a) to deliver the possession and execute and register the Deed of Conveyance in her favour as per the agreement, or refund the paid amount along with 18% interest. (b) to pay Rs.2,00,000/- as compensation for harassment, mental agony and financial loss, (c) to pay Rs.50,000/- as litigation cost and any other relief(s) as this Commission may deem fit and proper.
Complainant submitted copies of (i) Pre-agreement Form duly filled by her, (ii) Agreement for Sale dated 28/12/2017, (iii) two money receipts issued by the O. P. – 1 company dated 22/09/2016 & 25/04/2017 (iv) confirmation letter issued by the O. P. – company on 25/04/2017 regarding booking of the flat. (v) Memorandum bearing no. 243-LP, dated 20/01/2020 issued by the L & L R and R R & R Department, Govt. of West Bengal, (vi) two letters sent to the O. P. – 1 company regarding refund of payment and a letter issued by the O. P. – 1 to the complainant assuring the refund, (vii) list of various mail correspondences between the complainant and the O. Ps., etc.
Notices were served, after admission, to the O. Ps. which were not served upon them properly. Consequently Ld. Advocate appearing for the complainant prayed to serve the notices by way of paper publication in a daily newspaper which was subsequently allowed. Notices were served through a Bengali daily news paper on 14/07/2022. Yet, the O. Ps. did not attend the Commission nor they had filed any written version and consequently the case proceeded ex parte vide order dated 13/10/2022. Complainant then filed her Affidavit-In-Chief and ex parte argument was heard thereafter. Brief Notes of Argument was filed on behalf of the complainant. We have now come to the position to deliver the Final Order in this case. We have to decide whether the O. Ps. are deficient in rendering proper service to the complainant for which she is entitled to get relief as prayed for.
DECISION WITH REASONS
Let us begin our scrutiny with the Agreement for Sale dated 28/12/2017. In this agreement the O. P. – 1 company is described as the Vendor and/or Developer/One Part and the complainant as the Purchaser/Other Part. In this agreement it is stated that the O. P. – 1 company is going to construct a housing project titled as Prince Town Platinum by developing a land of 870 (proposed) decimal lying and situated in Mouza – Hatishala, J. L. No. – 9, Paragana – Kalikata, comprising various Touzi Nos. and Khatian Nos. under P S – Kolkata Leather Complex, within the limits of Beonta 2 No. Gram Panchayet, which were acquired/purchased by the company. It is stated in this agreement that the purchaser, the complaint herein, is going to purchase a self-contained residential 2BHK flat of 301 sq. ft. covered area on the 2nd floor in Phase – I (2nd Schedule) for a total consideration of Rs.5,98,990/- plus Rs.2,00,000/- as amenities (7th Schedule). A payment of Rs.2,07,652/- by the purchaser/ complainant has been acknowledged in Memo of Consideration annexed with this agreement of which Rs.1,99,747/- is Principal amount and Rs.7,905/- is S. Tax amount. It is specifically stated in this agreement that the designated unit, the purchaser is going to purchase, will be completed within 40 months with major amenities from the date of execution of this agreement subject to force majeure. Details of common and specific amenities, rights, obligations, etc. are written in this agreement comprising of 26 pages which are not our concern. We are concerned about the progress of the project and whether any deficiency in service is occurred from the part of the O. Ps. We have not found any description of the manner of acquiring/purchasing of such a huge land by the O. P. – company. Such acquiring/purchasing must be before 26/10/2017 – the date of filling up of the Pre-agreement Form by the purchaser/complainant. Here our attention goes to the Memorandum, bearing No. 243-LP, dated 20/01/2020, issued by the L & L R and R R & R Department, Govt. of West Bengal, from which we find that the mutation of land records and conversion of land have been stopped within the jurisdiction of Bhangore – II Block in south 24 Paraganas district vide this Department’s Memorandum No. 420-LP, dated 03/02/2017, which were partially withdrawn w. e. f. 20/01/2020 except the cases of (i) Real Estate/Commercial Housing Project and (ii) Commercial complexes & other Private Sector Infrastructure Development Projects. We do not know whether the Hatishala Mouza under Beonta Gram Panchayet is within the jurisdiction of Bhangore – II Block or not as there is no documents have been put forward by the complainant in this regard. The project was scheduled to be completed within 40 months from signing the agreement, as assured in this agreement, i. e. within April, 2021. But till August, 2020, when the complainant visited the project site she found that there was no sign of development and the project site was full of wild plants. So, one can presume that within 8 months construction of a huge housing project cannot be completed and the project site may be under the jurisdiction of Bhangore – II Block for which the developer could not mutate the land records and conversion could not be made. Then a question arises in our mind: the Government Authority has stopped mutation and conversion w. e. f. 03/02/2017 and was continuing for housing projects until 2020, then how the O. P. – 1 company allured the complainant to sign in the Pre-agreement Form as well as in the Agreement for Sale? Thus, the O. P. – 1 company acted illegally which can be termed as unfair trade practice under the C. P. Act, 2019 and for this reason they should compensate. Complainant paid Rs.2,07,652/- with an intention to purchase her desired residence and the O. P. – 1 company/developer failed to fulfil her intention though they had assured. Thus a gross deficiency in rendering proper and desired service has been occurred from the part of the O. P. – 1 company/ developer for which the complainant is entitled to get relief. She is entitled to get back her money paid to the company. She is entitled to get interest on her paid money as compensation. She prayed in her complaint petition an 18% interest together with compensation of Rs.2,00,000/-. But The Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. –Vs– D S Dhanda & Othrs [II (2019) CPJ 117 (SC); SLP(C) Nos. 3623 – 3654 of 2019] held that: “when interest is awarded by way of damages awarding additional compensation is unjustified”. So we think interest on the paid amount is enough for compensation.
Now before going to the conclusion we look back at the Cause Title. Here all the addresses of the O. Ps. are beyond our jurisdiction. In the Agreement for Sale complainant’s address is written as E7/17, Inderlok Housing Estate, P. S. – Chitpur, Kolkata – 700 002, which is also beyond our jurisdiction. But she has annexed copies of EPIC bearing no. BGN2458370, Property tax receipt and electric bill wherefrom it appears that her address is the same as stated in the Cause title, which is under our jurisdiction. But no document has been annexed wherefrom we can say that the O. P. – 2 is the Director or O. P. – 3 is the General Manager of the O. P. – 1 company. O. P. – 2 has signed the Agreement for Sale dated 28/12/2017 as an authorised signatory representing the O. P. – 1 company. In her letter dated 08/11/2019 addressed to the Director of M/s Usashi Realstates Pvt. Ltd., complainant mentioned Mr. Arnab Roy as its Managing Director.
In her letter dated 08/11/2019 complainant requested the O. P. – 1 company to refund the entire money of Rs.2,07,652/- while the company, it its letter mailed to the complainant on 17/02/2020, had agreed to refund Rs.1,99,747/- part by part. Here we note that in the Memo of Consideration annexed with the agreement for sale that this amount has been stated as Principal and the remaining Rs.7,905/- as S. Tax. As per prevailing tax regime there is a tax system called GST w. e. f. 01/07/2017. As the O. P. – 1 company failed to comply with the directives of the Agreement for Sale so question of deduction on account of tax does not arise. O. P. – 1 company should refund the entire money paid by the complainant. In Clause (c) under the head ‘Defaults’ in Page-8 of the Agreement for Sale it is stated as: “If the Vendor herein fails to construct the Designated Unit on or before the expiry of the aforesaid time period and the extended period then and only in such event, the Vendor would be liable to pay to the Purchaser/s @8% per annum (SI) on the total sum paid till date by the Purchaser to the Vendor for the aforesaid Designated Unit.” As there is no evidence of development of the project so the alternative prayer of the complainant regarding delivery of possession and execution & registration of Deed of Conveyance in respect of the subject flat does not arise. If the O. Ps. contested the case then there might be some contrary materials which could mend our minds to some other conclusions, but that has not happened.
So, considering all these aspects we held that the O. Ps. have not complied with the assurances agreed to be done by them as promised through the agreement for sale which constitute deficiency in rendering service to the purchaser/complainant/consumer as defined under the Act, hence they are liable to compensate and the purchaser/complainant is entitled to get relief. O. Ps. must refund the entire payment of Rs.2,07,652/- to the complainant together with 10% simple interest per annum as compensation. The O. Ps. are liable to pay Rs.8,000/- to the complainant as litigation cost.
Hence,
it is
ORDERED
That the Complaint Case No. CC/276/2021 is allowed ex parte against all the Opposite Parties.
The Opposite Parties are directed jointly and severally to refund Rs.2,07,652/- together with 10% per annum simple interest thereon with effect from the date of last payment till this date to the Complainant within 60 days from this date. The O. Ps. are also directed to pay Rs.8,000/- to the Complainant as litigation cost within the aforesaid period failing which the entire sum shall carry 10% interest till full and final payment.
