SHRI REYAZUDDIN KHAN,MEMBER
This is an application U/s.35 of the Consumer Protection Act, 2019 is at the instance of an intending purchaser against Vedic Reality Pvt.Ltd on the allegation of deficiency of service in a dispute of flat purchse.
The fact of the case in brief is that the above mentioned Complainants were looking for two good residential flats and at the same time the complainants came in contact with the OP4,India Bulls Distribution Services Ltd which offered several facilities to the purchaser like,Free transfer for two nominations instead of one,cancelation refund before 45 days,offer for deduction of 7.31% on the total BSP of per unit,1% gold coin on total of BSP per unit.Allured by the schemes for booking of the flats the complainants made an application to the OPs on 22.03.2014 for allotment of the apartments/Units at “IVY GREENS”situated within the jurisdiction of P.S,Rajarhat,District-North 24 Parganas,West Bengal.The OPs scrutinized the applications forms and issued booking confirmation letter on 27.06.2015 mentioning the details of the two flats after receiving the amount of (Rs 6,44,000,.00+ 19,900.00)= 6,63,900.00 against each flat totaling of amount Rs,13,27,800.00 and handed over two agreements for sale both dated 27.06.2015.OPs allotted the flat being Unit No.”A-5” and “B-5” on the 5th Floor in Block “IG-08” measuring a super built up area of each one of the said two flats each 990sq.ft for a total consideration amount of Rs,29,70,000.00(Twenety Nine Lakhs Seventy thousand)only for each flat along with one covered car parking space for each flat on the ground floor for a further consideration of Rs,2,50,000/ (Rupees Two Lakhs Fifty thousand)only for each parking space.
The details of the allied charges…
Basic price of the flat: Rs,29,70,000
Covered car parking place: Rs,2,50,000
Infrastructure and development charges Rs,1,48,500
Club membership fees Rs,1,50,000
Total consideration of each flat &car parking : Rs,35,18,500.00( Rupees Thirty Five Lakhs Eighteen Thousand Five Hundred ).
The complainant mentioned that the schemes of the OP4 the corporate Booking agent and their offer @7.31% on the aforesaid basic selling price as also to give gold coins equivalent to 1% of the basic selling price ie,7.31+01=8.31% in favour of the complainants and also to adjust the same against payment of the due installment. The complainants became entitled to get the benefit of aforesaid offer made and promised by the OPs and the total amount of such discount came to a sum of Rs,2,67,582.00.So,the total consideration amount stands after discount of both the flats of Rs,65,01,836.00(Rupees Sixty five Lakhs one thousand Eight hundred thirty six)only.
The complainant further mentioned that as per the agreement for sale dated 27.06.2015 the OPs undertook to complete the flat within 26.06.2018 which was already expired.Till date OPs failed and neglected to deliver physical possession of the subject flats to the complainants. The copy of agreement for sale handed over to the complainant and their office remain closed for their internal affairs as such the agreement for sale was not executed due complete non co-operation. The complainants have paid the consideration money from time to time to the OPs.A sum of total consideration money paid to the OPs of Rs,26,55,600(Twenty Six Lakhs Fifty five Thousand Six hundred)only
The complainants had booked the two flats for residential purpose but they are deprived of and have been put to great mental agony and causing financial loss and damage.The OPs as developers have miserably failed to discharge their contractual liability and also failed to handover the physical possession of the flats along with car parking to the complainants within promised periods for which the OPs as a service providers committed gross deficiency in service and adopted unfair trade practice.
In view of the facts and circumstances the complainants have no other option but to come to the Hon’ble commission for justice with relief as detailed in the complaint petition.
On perusal of records, we find that notice was served upon OPs and the OP4 filed their WV on 05.10.2023 and the OPs 1 to 3 also filed their WV on 10.10.2023. As the notices were served to the OPs on 20.07.2023 and the WV were filed by the OPs 1 to 3 on 10.10.2023 and the OP 4 on 05.10.2023 respectively.Admitedly statuary period for filling WV by the OPs have already been elapsed and as such the case run ex-parte against the OPs.Hence,WV filed by the OPs can not be entertained.
Points for Determination
1) Whether the OPs are deficient in rendering proper service to the Complainants?
2) Whether the OPs have indulged in unfair trade practice
3) Whether the complainants are entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
We have travelled over the documents placed on record.The complainants have filed his Evidence supported by affidavit.The complainants have filed their BNA also.Complainants have booked two flats being No.A-5 and B-5,along with two car parking spaces situated at 5th Floor,Block-IG-08,Ivy Greens,Rajarhat through the OPs 1,2,and 3 as developers and OP4 is the corporate agent of the OPs 1 to 3.The development agreement was executed on 16.11.2013. Total consideration of each flat & car parking isRs,35,18,500.00( Rupees Thirty Five Lakhs Eighteen Thousand Five Hundred )only,accordingly two flats along with car parking amount stands Rs35,18,500.00x2=70,37,000 (Seventy Lakhs Thirty seven Thousands)only.The complainants have paid a total amount of both the flats and car parking is Rs,26,55,600(Twenty Six Lakhs Fifty five Thousand Six hundred)only.However,as per the calculation of the complainants in respect to India Bulls,and interest in delay the amount stands Rs,57,00,306/.
But the OPs have miserably failed to handover the subject flats and the car parkings citing several reasons after elapsed of the stipulated period of 36 months.
From the conduct and intention of the OPs regarding the completion of the project and negligence attitude on the part of the OPs,the complainants requested the OPs for handover of the subject flats or refund of their deposited money along with interest through emails,letters.The OPs have failed to refund the entire amount with interest.The OPs failed to discharge their contractual obligations regarding payment of the said amount and making unnecessary delay on the part of the complainants.The OPs are fully aware that they are liable to pay the deposited advance amount including interest thereon to the complainants. Complainants deposited his hard earned money with the OPs. The OPs deliberately make their illegal gains and to deprive the complainant from his lawful right withheld the deposited amount. Thus, the OPs have adopted unfair trade practice, and in fact, withhold the deposited amount of Rs,26,55,600(Twenty Six Lakhs Fifty five Thousand Six hundred)only along with accrued interest. Complainants have filed his affidavit reaffirming the allegations. Thus, it stands proved that despite of having received Rs,26,55,600(Twenty Six Lakhs Fifty five Thousand Six hundred)only the OPs have failed to refund the said amount. In absence of any explanation for failure to comply with the stipulation of refund of deposited amount, we have no hesitation in concluding that the OPs have committed deficiency in service and also has indulged in unfair trade practice
The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainants have paid Rs,26,55,600(Twenty Six Lakhs Fifty five Thousand Six hundred)only to the OPs for purchase of the subject flats with covered car parking The OPs failed and neglected to pay deposited advance amount Rs,26,55,600(Twenty Six Lakhs Fifty five Thousand Six hundred)only for which they have to pay to the complainants and the act and conduct of the OPs are clear case of deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not deposited/paid his money with the OPs, he would have invested the same elsewhere. The complainants cannot be wait indefinitely to get the said amount. The complainants have suffered mental agony, pain and harassment. It is settled principle of law that the compensation should be commensurate with loss of suffered and it should be just, fair and reasonable and not arbitrary. To get relief, the complainants have to wage a long drawn and tedious legal battle. In these circumstances, the complainants are entitled to refund of deposited amount along with compensation. and interest
In this regard a Judgement of the Hon’ble Delhi State Consumer Disputes Redressal Commission under reference 2022(2) CPR 137(Del.) in the matter Mrs.Jasveen Kaur v. Parsvnath Developers Ltd., Complaint Case No.1618 of 2016 decided on 05.05.2022 is also found relevant to the present context. The Hon’ble SCDRC has been pleased to observe in Para 34 of the said Judgement “ A failure of the Developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service.”
Keeping in view of the above cited Judgments and based on the fact and circumstances of the present case,we are of the considered opinion that the Complainants have established the case against the OPs.
In the result, the Consumer Complaint succeeds .
Hence,
Ordered
That the complaint case be and the same is allowed on ex-parte against the OPs.
1.OPs1,2 and 3 are directed jointly or severally to refund the deposited advance amount Rs,26,55,600(Twenty Six Lakhs Fifty five Thousand Six hundred) with a interest @9% PA from the date of payment till its realization..
2. The OPs1,2 and 3 are further directed jointly or severally to pay Rs.1,00,000/- (Rupees One Lakh)only to the complainants as compensation for causing harassment and mental agony.
3.OP4 is directed to pay a sum of Rs,50,000/ as compensation for false, misleading and lucrative offers/ advertisements.
2.OPs 1,2, and 3 are directed jointly or severally to pay Rs. 15,000/- (Rupees Fifteen thousand) only as litigation cost.
Complainant put the order into execution, if the OPs transgresses to comply the order according to Consumer Protection Act, 2019 after the expiry of 60 days.
