: J U D G M E N T :
The petitioner, Apurba Kumar Sen has filed a case against opposite parties viz., Proprietor / Local Manager, Vibgyor Housing Ltd., Krishnagar, herein the OP No. 1, Proprietor / Director B.K. Tower, 170/A, A.J.C. Bose Rd, Kolkata herein OP No. 2, Proprietor / Director, Onrise Housing Bishnupur Pvt. Ltd., Kolkata, herein OP No. 3, Proprietor / Director, Apnidharti Developers Pvt. Ltd., Kolkata, herein OP 4, Proprietor, Moontree Highrise Pvt. Ltd., Kolkata, herein OP No. 5, the Proprietor, Vibgyor Housing Ltd., Kolkata herein OP No. 6 and Proprietor, Godrej Water Side, Salt Lake of Kolkata herein OP No. 7 under Section 12 of the Consumer Protection Act, 1986.
Case of the petitioner in brief:-
The petitioner intended to purchase a flat from the opposite parties in the Project named “Sunrise Point” at N.N. Thakur Road, Krishnagar, Nadia and for that he advanced Rs. 2,85,788/- out of Rs. 13,86,112/-. The advance payment was made through two different cheques of SBI Bank, Krishnagar one for Rs. 1,00,000/- (cheque No. 564401 dtd. 28.01.2014, service tax Rs. 3090/- (cheque No. 564402 dtd. 28.01.2014, Rs. 1,77,222/- (cheque No. 564403 dtd. 29.03.2014 & Rs. 5476/- (cheque No. 564404 dtd. 29.03.2014) & the rest in cash. The OP also allotted a flat for the petitioner whose details were accordingly provided by the OP. The specification of the flat was like this Flat No. A6/3/F, Block / Tower SNRP – Block-2BHK/IRIS Flat Type 2 BHK, Floor -2, Total Area 832 Sq. Ft., S.B. Area 166.40 Sq. Ft., Project Code SNRP Phase SNRP – PH-1.
The payment was made to Moontree Highrise Pvt. Ltd. The petitioner made all the above payment on good faith. and did not take the signed agreement copy from the OP. But from the date of last payment i.e., 29.03.2014 till the date of filing of the instant case the OPs have not started any construction work and whenever the petitioner enquired about this matter the OPs never gave any positive reply but always remained silent. Petitioner is still interested to purchase the alleged flat and has filed the instant case to get redressal from the forum with the following prayer.
- Direction upon the OP to refund Rs. 2,85,788/- along with service charge, that was paid by the petitioner.
- Direction upon the OP to pay Rs. 2,00,000/- towards compensation along with litigation cost.
The notice of the forum was published in the daily newspaper but even after paper publication the OPs did not turn up, so the forum decided to hear the case exparte. The petitioner filed affidavit-in-chief, brief notes of argument and was also heard at length.
From the pleadings, documents & the BNA of the petitioner we frame the following issues for proper adjudication of the case.
1) Whether the petitioner a consumer under the OP.
2) Whether the OP suffers from deficiency in service.
3) Whether the petitioner is entitled to get relief from the OPs as prayed for.
DECISIONS WITH REASONS
Point No. 1.
The petitioner is a consumer under the OPs as he has advanced on amount to the OPs for purchasing a flat who are developers by profession and the OPs carry out the business jointly so the petitioner is a consumer under all the OPs U/s 11 (b) of the Consumer Protection Act, 1986 irrespective of the territorial jurisdiction.
Point No. 2 & 3:
The Petitioner paid Rs. 2,85788/- through cheque of SBI, Krishnagar towards booking money of the alleged flat. The booking money receipt was issued by Moontree Highrise Pvt. Ltd., Dum Dum Road, Kolkata, So it is proved that OPs took money from the petitioner with an assurance to deliver the flat within the stipulated time. But the fact remains that the OPs did not start / carry out the constructional work stepwise in proper time as laid down in the agreement and this led to a negative impact in the mind of the petitioner regarding the honesty of the OPs. It is true that a building cannot be built in a day and when a developer after receiving the advance money from the customer starts delay in laying down the foundation stone, it is obvious for a customer to lose confidence on him / her. This what happened in this case too. So the OPs are deficient in rendering service to the petitioner because they neither completed the construction work in time nor met the petitioner’s queries properly. Hence, the OPs are liable to compensate the petitioner for their negligence.
IPO / DD paid is correct.
Hence,
Ordered,
That, the case CC/2015/85 be and the same is allowed exparte with cost.
The OPs are jointly or severally liable to pay Rs. 2,77,222/- along with 9% interest from 29.03.2014 till the date of payment within one month, in default, the rate will shoot up to 18% in addition to the above the OPs are jointly or severally liable to pay a compensation of Rs. 5,000/- and litigation cost of the Rs. 2000/- within one month from the date of order.
Let a copy of this judgment be delivered to the parties free of cost.
