Dt. of filing- 27/06/2018

Dt. of Judgement- 25/03/2019

Mrs. Sashi Kala Basu, Hon’ble President.

          This consumer complaint  is filed by the complainants namely Dr. Mohanlal Datta Chaudhuri  and Dr.Anna Benita Dutta Chaudhuri being represented through their  constituted Attorney  namely Manas Pratim Dutta against the  Opposite Parties  namely Nestwood Maple Project Pvt. Ltd. and C – 21 Advisory Services Pvt. Ltd.  alleging deficiency  in rendering services on their part.

          Complainant’s  case in short is that  they booked  a flat and one covered car parking space by an application form  bearing no. 1676 by paying Earnest Money  of  Rs. 1,51,881/- on 05.03.2015 to the OPs, measuring an area   497 sq. ft. at a consideration price  @ Rs. 1975/- per sq.ft.  towards flat i.e. Rs. 9,81,346/-  and the consideration price  for the covered car parking space  Rs. 3,00,000/-. being apartment no.  D-2 on the 2^nd floor in the  North West  Location of premises bearing no.36 and the covered car parking space in the ground floor  of the said Tower. The complainants further  paid  Rs. 25,000/- for the said  flat and car parking space on 20.03.2015  to the  OP No.1 through their  marketing agent. So, in total Rs. 1,76,881/-  has been paid  by the complainants  to the OP out of the total consideration price. The complainants visited the project area on many occasion till December, 2017 but it was  found that no construction work  was carried. They were  assured  that the construction work will start soon. OPs have also  failed and neglected to execute the agreement for sale  with the complainants with regard to the said flat and car parking space inspite of the  receiving the  earnest money. As the construction work  of the project did not  commenced,  complainants requested  the OP to refund  money paid them along with interest assured thereon. But they have not  returned  the  money. A notice was thus  sent by the complainants  through their Ld. Advocate to the OP to refund   the amount  but all in vain.

          A complainant was filed by the complainants  before the  Hon’ble State Commission being CC/330/2018  but the Hon’ble State Commission  was pleased to reject the petition of complaint vide their order dated 20.06.2018 with the direction to the complainants to approach the District Forum. So, the present case  has been filed  praying for  directing the OP to refund  the entire amount of earnest money of Rs. 1,76,881/-  together with interest  @18% p.a., to pay compensation of Rs. 6,50,000/- for mental pain, agony and harassment and to pay a litigation cost of Rs. 1,00,000/-.

Complainants have annexed with the petition of complaint, Photo copy of the  application form, customer payment schedule with the terms and condition, money receipts  and acknowledgement letter  dated 13.03.2015 issued by the OP No.1.

          On perusal of the record it appears  that notice was sent to the OPs  but inspite of the service of the notices , the OP did not take any step and so vide order  dated 29^th October, 2018, the case has been fixed for  exparte hearing.

          During the course of the evidence, complainants by  filing a petition prayed for treating the petition of complaint  as their evidence and ultimately argument  has been heard.

So, the point requires determination is whether the complainants are entitled to the relief as prayed for?

Decision with reasons

          At the very outset it may be pertinent to point out  that the present  complaint  has been filed  by the complainants  being represented by their constituted attorney  namely Manash  Pratim Dutta. The General Power of Attorney executed   in favour o the constituted attorney by the complainants has been filed. Admittedly, no agreement for sale has been executed between the complainants and the OPs. But the complainants have filed application form containing the customer payment schedule and the money  receipt wherefrom  it appears that the complainants  booked a flat  @1,975/- per sq.ft.  with the OP – Nestwood Mapple Projet Pvt. Ltd. and an  amount of Rs. 1,51,881/- has been paid  by the complainants as the booking amount for the  said apartment bearing no. D-2 on the 2^nd floor in North West Location in  Premises No. 36 at Nestwood Mapple Projet Pvt. Ltd.at Rajrarhat. The booking of the flat  and the payment of the money  as claimed by the complainants in the  present complaint is further substantiated from the letter  sent by the OP to the complainants dated 13.03.2015. Complainants have also  filed another receipt dated 20.03.2015 showing  for further payment of Rs. 25,000/- to the  account of OP No.2 against the project of OP No.1 Vide letter dated  04.05.2016 sent by the  OPs  to the complainants, they have assured  that the construction  work at the project will  take place within the  month of June, 2016 but  it has been  claimed by complainants that the said project has not been  completed. So, apparently, the claim of the complainants  that they booked  a flat  measuring  an area of 497 sq.ft. @Rs.1,975/- sq.ft. and parking area for  Rs. 3,00,000/- is established  from the documents filed by the  complainants and further that they have made  part payment of Rs. 1,76,881/- is also  substantiated by those documents especially, when no contrary  material is forthcoming  before  this Forum to counter and rebut the claim of complainants as the case has been heard exparte. In such a situation, as there has been  deficiency  of  service complainants are entitled  to refund of   the money paid by them along with the interest @ 12% p.a.

          The argument of the Ld. Advocate  for the  complainants that they are entitled to the interest  at the rate of  18%, in this  context it may be mentioned  here that in the  case law of Gaziabad Development Authority –vs.- Balbir Singh reported in  2004(3) R.C.R. ( Civil) 658, which is cited by the Ld. Advocate  for the complainant himself, it has been observed by the Hon’ble Appex Court that the power and duty to award compensation  does not  mean that irrespective of  facts o the case compensation j can be awarded in all matters at a uniform rate of  18% per annum. It necessarily has to be based on a finding of loss or injury and has to correlate  with  the amount of loss or injury.

          In this case in hand only Rs. 1,76,881/-has been paid  as earnest money out of total consideration  price of Rs.9,81,346/- and Rs. 3,00,000/- respectively. Admittedly no agreement as such has been executed between  the parties  and  so there is no specific  period for completion of work. Booking amount was paid in March 2015 and present complaint is filed in June 2018.  So there has not been a long gap to allow 18% interest per annum as prayed. In such view of the matter the case law reported in 2015 (4) C. P.R. 34 referred by the Ld.  Advocate for the complainant, will not be applicable in this given facts and circumstances of this case.

However, complainants are further entitled  to compensation  of Rs. 50,000/-  towards the mental pain , agony and harassment  and RS. 12,000/- towards  the litigation cost.

Hence,

                                                 Ordered

          CC/382/2018 is allowed exparte. Opposite Parties  are directed to refund  the entire amount of Rs. 1,76,881/- along with interest  on the said amount @ 12% p.a. from the date  of last  payment made by the complainants  i.e.  20.03.2015 to till  passing  of this order  within two months from the date of this order. They are further directed  to pay Rs. 50,000/-  as compensation and  Rs. 12,000/-  as litigation cost within the aforesaid period of three months in default the entire amount   shall  carry interest @  10% p.a.  till realisation.