FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
Brief facts of the case are that the OP is an existing company within the meaning of the Companies Act 2013 and is engaged in the business of Real Estate Development and various housing projects. Being induced by the superfluous description of amenities and also considering the formidable Brand Name of OP company, Complainant had decided to purchase a apartment in the project namely Hiland Riverfront and accordingly, he made an application for allotment upon payment of Rs. 1,00,000/-. OP vide letter dated 16.08.2016 allotted Apartment No.23B/3 on the 23rd floor of Tower-I at the said project to the complainant. Out of total Sale price complainant has already paid Rs. 6,00,000/- to the OP against money receipts. As per General Terms & Conditions, possession of the apartment is to be handed over within 42 months from the date of allotment letter. Despite discharge of all reciprocal obligations, the OP failed to keep it’s commitment and huge delay has occurred on their part for reasons solely attributable to them. Despite receiving substantial advances, the OP did not bother to execute agreement for sale which is itself a gross violation of law. On the contrary, the OP charged interest at the rate of 16 percent per annum from the complainant for delay payment. While acknowledging and accepting such, delay the OP vide its e-mail had offered the complainant to refund the booking amount with interest of at the rate of SBI Price Lending Rate plus 2 percent within 03 months on receiving confirmation and/or to opt for applying a new flat in the project launched by the Ambuja Neotia Group. Complainant Opt to refund the booking amount but the OP did not refund the booking amount and also depriving the complainant. OP holds the money of the complainant for indefinite period. Such conduct of the OP clearly bears the omen of unfair trade practice. Demand notice dated 19.04.2021 was unattended.
Alleging unfair trade practice and deficiency in service on the part of the OP, the complainant has filed the present complaint seeking refund of booking amount including interest, compensation and litigation cost.
OP did not resist the consumer complaint despite service of notice. No WV is field by the OP within the statutory period. Thus, the case runs ex parte hearing against the OP. On conclusion of final hearing, the OP filed Miscellaneous Application being No. 157/2022 praying for permission to file WV on the ground stated therein. Such application was rejected on contested vide order dated 27.04.2022.
In support of his case the complainant Nirmal Banerjee has tendered evidence supported by an affidavit and also relied documents annexed with the complaint petition. Complainant has also filed written argument. We have heard argument on merit and have also perused the record.
The Ld. Advocate for the complainant argued that there is gross negligence and deficiency in service on the part of the OP as despite payment of Rs. 6,00,000/- out of total sale price no construction was done within the stipulated period of 42 months. Complainant requested the OP to handover possession of the apartment but in vain. Ld. Advocate for the complainant further submitted at present there is no existence of the project work viz. “Highland Riverfront”. The OP did not bother to execute any agreement for sale which is itself a gross violation of law and on the contrary the OP charged interest at the rate of 16 percent p.a. from the complainant for delay payment. The OP offered the complainant to refund the booking amount with interest at the rate of SBI Prime Lending Rate + 2 percent within 03 months on receiving conformation and/or to opt for applying a new flat in the project lunch by the Ambuja Neotia Group. There is no possibility to hand over the said apartment to the complainant in near future. Thus, the Ld. Advocate for the complainant has prayed for refund booking amount of Rs. 6,00,000/- with compensation, interest and litigation cost.
Before explaining the other issues involved the complaint case, we try to decide whether the instant case falls within the purview of Consumer Protection Act and there is any gross negligence or deficiency in-service on the part of the OP.
We note that the complainant has booked a apartment being No. 23B/3 on the 23rd floor of Tower-I at “Highland Riverfront” and the OP vide letter dated 16.08.2016 conformed the said booking subject to certain terms and conditions. On perusal of the photocopies of money receipts, it is clear that the complainant has already paid Rs. 6,00,000/- to the OP out of total sale price. Thus, the complainant comes within the definition of “Consumer” according to Consumer Protection Act, 2019.
As per General Terms & Conditions, possession of the apartment is to be handed over within 42 months from the date of allotment letter dated 16.08.2016 but the OP did not offer possession of the apartment to the complainant despite several request. The OP without complying the contractual obligations had chosen to enter into a separate deal with Ambuja Neotia in respect to the project. Having no other alternative, complainant requested the OP to cancel the booking of apartment with a request to refund the amounts paid by him with applicable interest. OP agreed to refund the booking amount with interest at the rate of SBI PLR + 2 percent within 03 months on receiving conformation of cancellation. Complainant has given his consent with regard to cancelation of allotment. In spite of cancellation as well as commitment the OP failed to refund the booking amount along with interest. Even demand notice dated 19.04.2021 was unattended. It is true that no WV has been filed by the OP though several opportunities were given to them for filing WV yet they have failed to file the same and as such the allegation stated in the complaint petition remains unchallenged. Regarding this matter we can safely state that on failure to file WV by the OP tantamount to admission of the allegations stated in the complaint petition. Demand Notice dated 19.04.2021 clearly reveal that there is continues negligence and deficiency in service on the part of the OP. OP assured the complainant to refund the amount along with interest at the rate of SBI PLR + 2 percent within 03 months as committed but failed to commit their assurance. It is very unfortunate that the OP has failed to start construction of project within stipulated period as mentioned in the General Terms & Conditions and ultimately, cancelled the booking. It is not our expectation that the complainant by any means suffer from loss of money and time for the breach of the General Terms & Conditions on the part of the OP. Under the above facts and circumstances, the gross negligence and deficiency in service on the part of the OP is proved and the complainant is entitled to get relief as prayed for.
The Hon’ble Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, I (2018) SLT556-II (2018) CPJ1 (SC)= (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghavan III (2019) SLT 435=II (2019) CPJ 34 (SC)=(2019)5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, III (2019) SLT 631=II (2019) CPJ29 (SC)2019 (6) SCALE 462 and Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd. VI (2020) SLT 50=IV (2020) CPJ 10 (SC)=2020 16 SCC512 held the buyer cannot be made to wait for unlimited period for possession. Complainant accepted the proposal of the OP and cancelled the booking of apartment. OP agreed to refund the booking amount with interest at the rate of SBI PLR + 2 percent within three months on receiving confirmation of cancellation but failed to fulfill their commitment.
Based on the discussion above and the law laid down by the Hon’ble Supreme Court, we are disposed of the consumer case in the following terms:-
- OP is directed to make payment of Rs. 6,00,000/- ( Rupees six lacs) only to the complainant.
- OP is further directed to make payment of Rs. 1,00,000/- (Rupees one lac) only as compensation for harassment and mental agony caused to the complainant due to deficiency in service.
- OP is also directed to pay Rs. 25,000/- (Rupees twenty five thousand) only as cost of litigation to the complainant.
- Above payments shall be made within 06 weeks from the date of this order failing which the amount shall carry interest at the rate of 9 percent per annum from the date of the order till its realization.
Consumer case is thus allowed ex parte against the OP and disposed of as per above observation.
Copy of the judgment be supplied to the parties as per rules. Judgment be uploaded on the website of this Commission forthwith for perusal of the parties.
