1. The OPs being the developers floated “EVANIE ECO-NEST” housing project under p.s-Rajarhat, in the district of North 24 Parganas and made advertisement in the print media inviting applications from the intending buyers of flats. The complainant being in need of a dwelling unit got attracted to the project. He visited the office of the OP and selected a flat of 417 Sq.ft. priced at Rs. 14,50,720/-. He signed an agreement on 09.07.2017 for purchasing the said flat and paid Rs. 5,36,493/- under the said agreement. It was agreed by and between the parties that the possession of the flat would be given within 40 months depending upon the payment of the balance amount. But shortly thereafter the complainants came to know that the OPs were not enjoying cloak of protection under West Bengal HIRA Act, 2017 and they were not blessed with the order for land -conversion which was required for raising the project. They also neglected to meet up the quarries made by the complainant regarding the status of the construction at the proposed site. Finding no other option the complainant applied on 04.09.2019 to the OPs for refund. But the OP did not pay heeds thereto. Out of curiosity the complainant visited the site thereafter and found no traces of construction. Under such a compelling situation the complainant has filed this case against OPs on 14.12.2020 seeking refund with interest, compensation and cost.

2. After having received notice as to the aforesaid complaint the OPs entered appearance: but knowingly skipped every stage of the proceeding for reasons best known to them. They omitted to file questionnaire with reference to the evidence of the complainant and also the evidence-on-affidavit. None on behalf of the OPs was found to take part in argument hearing. Practically the OPs have allowed the case to run uncontested. Be that as it may, the complainant has filed in support of his case, a batch of documents such as; (a) copy of agreement, (b) evidence on affidavit, (c) BNA etc.

3. The documents filed by the complainant have gone unchallenged for which they may be presumed to carry impeccable evidentially value. They appear to be quite reliable. The agreement for sale subsumes a receipt by which payment of Rs. 5,36,493/- on the part of the complainant for the said flat was acknowledged by the OPs. From the BNA and also from the contention canvassed by the Ld. Advocate of the complainant we have got to know that a sum of Rs. 80,474/- was refunded by the OPs on 26.07.2022 during the pendency of this case.   

4. It is abundantly clear from the evidence on record that for purchasing the said flat in “EVANIE ECO NEST” the complainant advanced a sum of Rs. 5,36,493/- to its developers by 09.07.2017. Since then the OPs are utilising the aforesaid amount of the complainant for their personal benefit.

5. It is found from the record that before the expiry of the stipulated period for causing delivery of possession the complainant has filed this case for refund.  But it should be borne in mind that the project was not developed even up to minimum extent when the case was filed. The view as taken  by the Honourable NCDRC in the case reported as 2021 SCC online NCDRC 320 is that the developer is not entitled to an excuse that the development work was delayed due to land dispute or for any other reason. It is our common knowledge that “EVANIE ECO NEST” housing project did not see the light of the project and therefore we find that the complainant was then justified in filing the case before the expiry of the stipulated period.

6. Again, it is crystal clear from the material available on record that for collection of fund from the intending buyers the said housing project was promulgated with a futile promise to provide them with flats. None of them has got anything and the money they paid are still lying with the OPs. For this or that reason refund of Rs. 80,474/- has already been made and the OPs are under sheer obligation to return to the complainant the balance amount of Rs. 4,56,019/-. Since the complainant has suffered harassment and agony for Ops’ unfair trade practice he is entitled to compensation from the OPs. The amount of compensation may be worked out at Rs. 50,000/- keeping in view the volume and extent of sufferance of the complainant. Refund will have to be made with reasonable interest with effect from the date of agreement and interest @10% p.a. would be quite reasonable. The complainant would also get Rs. 25,000/- as litigation cost.

7. The case is thus disposed of with the following directions:-

1.  The OP will return to the complainant Rs. 4,56,019/- with interest @10%p.a. with effect from 09.07.2017 (from the date of agreement) till actual payment within a period of 45 days hence failing which the amount will accrue interest @12%p.a.

2. The OP will also pay to the complainant Rs. 50,000/- as compensation and Rs. 25,000/- as litigation cost totalling Rs. 75,000/- within 45 days from now failing which the amount will carry interest @12%p.a.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MR. Lakshmi Kanta Das]
PRESIDENT