This instant case has been filed by the Complainant Asim Pada Chakrabarti alleging deficiency in service on the part of the Opposite Party – developers. During the pendency of this case the Complainant passed away and he was substituted by his legal heirs.

Case of the Complainant in brief is that Complainant Asim Pada Chakrabarti was in a search of  one residential flat for the purpose of his own use in the year of 2017 and he came to know the ongoing construction project of the OP at New Town, Rajarhat, North 24 pgs under the name and style ‘Prince Town Platinum’. Being interested the Complainant contacted with the OP developer and entered into an Agreement for Sale on 07.02.2018 with the OP . As per Agreement the total consideration money of Rs. 7, 98,990/- only (@Rs.1990 per sq. ft.) is decided for one small 2BHK flat measuring 301 sq.ft. covered area. Thereafter, on the basis of the application of being no. PTP 4137 the OP  allotted a flat and executed one Agreement for Sale on 07.02.2018. Subsequently, Complainant made payment of Rs.2,08,736/-only on 13.02.2017. It is stated in the petition of complainant that the Complainant went to the project side of the OP and found no construction work of the said project has been started. The Complainant informed the said fact to the OPs at their office and requested them to start the project work as early as possible. It is further stated in the petition of complaint that the Complainant booked the flat at the ongoing project of the OP developers by paying Rs. 2,08.736/-only out of total consideration amount of Rs 7,98,990/- to the OP developer as per payment schedule of the Agreement for Sale but as the OP developer failed to start the construction work of the project no further payment was made by the Complainant as per payment schedule of the agreement. After passing of 2 years from the allotment of the flat Complainant was in utter surprise that the developer has not started the construction work of the said project  as per terms and conditions of the agreement OP failed to hand over the possession of the said flat in favour of the Complainant. Complainant requested the OPs to refund the paid amount by sending letter dated 03.03.2019 to the OPs but OPs did not turn up. Hence this case.

Complainant filed this case praying for direction upon the OPs to execute and register the Deed of Conveyance in respect of his flat after handing over the possession of the same to the Complainant.  Complainant in his  alternative prayer prayed for refund of the entire paid consideration amount of Rs. 2,08,736/- only along with compensation of Rs. 2,00,000/- and litigation cost.

OPs have contested this case by filing written version denying and disputing all the material allegation leveled against them, stating that the Complainant and the OPs entered into an Agreement for Sale in respect of a flat in the development project of the OPs on 31.12.2017 and according to the said agreement the flat was to be delivered to the Complainant within 40 months from the date of agreement. So the time period for completion of the said project is not over before the filing of this instant case by the Complainant. Accordingly OPs have prayed for dismissal of the case.

POINTS FOR DETERMINATION

1. Whether the Complainant paid consideration money as per terms and conditions of the agreement.

2. Whether there is deficiency in service on the part of the OPs.

3. Whether Complainant are entitled to get the reliefs as prayed for.

DECISION WITH REASONS

Point no.1

Admitted fact is that Complainant paid Rs. 2,08,736/- for one self-contained residential 2 BHK (PTP-4137) flat measuring 301 sq. ft. area to the OP-developer. As per sixth schedule of the Agreement dated 31.12.2017 the Complainant paid the amount which was payable at the time of execution of the Agreement for sale.

 Point no.1 is decided accordingly.

Point no. 2

Complainant alleged that OP did not start construction work of the project and did not hand over the possession of the flat within stipulated time as per agreement dated 31.12.2017. On the other hand OPs have stated that as per agreement the said flat in question was to be handed over to the Complainant within 40 months from the date of execution of the agreement. As per OPs version the said 40 months period was not over till the filing of this case.

On perusal of the Agreement for Sale dated 31.12.2017 it appears that the flat in question was to be handed over to the Complainant within 30 days from the date of issuance of the notice for possession but on scrutiny of the record it transpires that no such possession letter has been issued on the part of the OPs.

Complainant submitted that after waiting for a considerable spell of time they prayed for refund of the paid amount to the OPs. On perusal of the record it appears that complainant prayed for refund of the paid amount by sending letter dated 03.03.2019 to the OPs which supports the contention of the Complainant that they have waited for a  considerable spell of time since they paid the consideration amount in the year 2017 and prayed for refund of the consideration amount in the year 2019. It is, therefore, evident that the OPs have failed to execute the project as was promised by agreement dated 31.12.2017 till filing of this instant case.

Further, OPs neither issued possession letter in favour of the Complainants nor showed completion certificate of the project till date. Deviation from the promise to deliver a flat to the complainant  amounts to deficiency in service on the part of the OPs.

Point no. 2 is decided accordingly.

Point no. 3

In course of final hearing Ld. Advocate for the Complainant submitted that as the   Opposite Parties did not start the proposed construction work  of the project Complainant prayed for their alternative prayer i.e. refund of the paid consideration. We hold that Complainants can not wait for indefinite period for their flat .Therefore a direction for refund of the paid amount along with interest @8% p.a  from the date of payment till realization in the form of compensation should be just and proper. Since the inaction of the OPs compelled the Complainant to file this case, OPs are liable to pay litigation cost to the Complainants.

Point no. 3 is decided accordingly.

In the result, the petition of complaint succeeds.

Hence, it is,

ORDERED

That the Consumer Complaint being no.CC/238/2020 is allowed on contest against the OPs with cost.

Opposite Parties are directed to refund Rs. 2,08,736/- along with

Let plain copy of this order be supplied to the parties free of cost. 

Dictated and corrected by

 [HON'BLE MRS. Sagarika Sarkar]
MEMBER