FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

            Brief facts of the case are that the OP 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 flat in the project namely Hiland Reiverfront and accordingly, he made an application for allotment upon payment of Rs.  1,00,000/-. OP vide letter dated 28.07.2016 allotted Apartment No. 7A/3 on the 7^th floor of Tower-I at the said project to the Complainant.  Total sale price of the Apartment and parking space is Rs. 64,95,324/- and the Complainant  has paid Rs. 18,93,644/- to the OP. As per General Terms & Conditions possession of the Apartment and parking space is to be handed over within 42 months from the date of allotment. Despite discharge of all reciprocal obligations the OP failed to keep its commitment  and huge delay has occurred on their part for the reasons solely attributable to them. While acknowledging and accepting such delay, the OP vide its letter dated 14.12.2018 had offered the Complainant for reduction of price of the Apartment including parking space and also assured that the Apartment will be delivered by the 2^nd quarter of 2021. OP agreed to pay compensation to the tune  of Rs. 8,16,505/-. OP holds the money of the Complainant for indefinite period on the pretext of future development.  Such conduct of the OP clearly bears the omen of unfair trade practice. Despite commitment, the OP failed to refund the total payment paid by the Complainant. Demand Notice dated 19.04.2021 was unattended. Alleging unfair trade practice and deficiency in service on the part of OP, the Complainant has filed the present complaint.

            The OP did not resist the consumer complaint despite service of notice. No WV is filed by the OP. As such, the case runs ex parte against the OP.

            In support of his case Complainant Prasenjit Bhattacharjee tendered evidence supported by an affidavit and also relied documents annexed with the complaint petition. Complainant has also filed BNA. We have heard argument on merit and have also perused the record.

            The Ld. Advocate for the Complainant argued that there is clear gross negligence and deficiency in service on the part of the OP as despite payment of Rs. 18,93,644/- to the OP out of total sale price of Rs 64,95,324/-, no construction work has been done within the stipulated period of 42 months. Complainant on several occasions requested the OP to handover the possession of the Apartment and parking space but in vain. Ld. Advocate for the Complainant further submitted that at present there is no existence of the project work viz “ Hiland River Front”. OP assured to refund the payment amount along with compensation of Rs. 8,16,505/- to the Complainant. There is no possibility to handover the said Apartment and parking space in habitable condition to the Complainant in near future. Thus, the Ld. Advocate appearing for the Complainant has prayed for refund of amount of Rs. 18,93,644/- with compensation, interest and litigation cost.

            Before explaining the other issues involved in this Complaint Case, we try to decide whether the instant case falls within the purview of Consumer Protection Act and whether 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. 7A3 on 07^th floor, Tower-I and a parking space at Hiland Riverfront and the OP vide letter dated 28.07.2016 confirmed the said booking subject to certain terms & conditions. Total Sale consideration of the booked Apartment and parking space is Rs. 64,95,324/-. On perusal of the photocopies of money receipts it is clear that the Complainant has already paid Rs. 18,93,644/- to the OP on different dates out of total consideration amount of Rs. 64,95,324/-. Thus, the Complainant comes within the definition of “Consumer” according to Consumer Protection Act, 2019.

As per General Terms & conditions  possession of the Apartment and parking space is to be handed over within 42 months from the date of allotment i.e. 28.07.2016 but the OP did not offer possession of the Apartment and parking space to the Complainant despite several request. Vide letter dated 14.12.2018 the OP assured to handover possession of the booked Apartment and parking space at their project Hiland Riverfront within 2^nd quarter, 2021 and also reduce the sale price. OP without complying the contractual obligations had chosen to enter into a separate deal with Ambuja Neotia Company in respect of the project. Having no other alternative. Complainant requested the OP to cancel allotment of the Apartment  and parking space with a request to refund the amounts paid by him with applicable interest. OP vide e-mail dated 13.08.2020 informed the Complainant that they will arrange to refund the amount tentatively by September,  2020. No payment is made. OP vide their letter dated 29.12.2020 assured the Complainant that they will refund 50  percent of the computed amount along with interest   at the rate of SBI PLR rate plus 2  percent as committed earlier on or before  28.02.2021 and balance 50  percent amount on or before 31.03.2021. In spite of such commitment,  OP failed to refund payment 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 opportunity has been given to them for filing WV yet they have failed to file the same and as such, the allegations 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 the admission of the allegations stated in the complainant petition. Letter dated 22.12.2020 written by the complainant and Demand Notice dated 19.04.2021 clearly reveal that there is continuous negligence and deficiency in service on the part of the OP. OP vide their letter dated 29.12.2020 assured the Complainant to refund 50  percent of the computed amount along with interest  at the rate of SBI PLR rate plus 2  percent as committed earlier on or before 28.02.2021 and balance 50  percent amount on or before 31.03.2021. OP failed to commit their assurance. It is very unfortunate that the OP has failed to start construction  of the project within the stipulated as mentioned in the General Terms & conditions. Thus, there is no chance for the Complainant to get the Apartment and parking space in habitable condition.  It is not our expectation that the Complainant by any means suffers from loss of money and time for the breach of the GTC on the part of the OP. Under the above facts and circumstances, the gross negligence and deficiency in service on the part of OP is proved and the Complainant is entitled to get relief as prayed for.

In this respect, we can reliance upon some case laws which are as follows:-

1. In Suniti Kumar Bhat and Ors. Vs. Unitech Acacia Projects Pvt. Ltd and Ors. reported in  2018 (3) CPR 795 (NC), where the Hon’ble National Commission held that when the builder fails to construct the flat on time, he is entitled to pay compensation in the form of interest and cost of litigation.
2. In Rear Admiral (Retd. ) Kirpal Singh vs. M/s Unitech Ltd.  reported in 2018 (3) CPR 767 (NC) where the Hon’ble National Commission decided that when the terms of the contract are not adhered to, builder is liable to refund the amount paid with interest and costs.  
3. In Fortune Infrastructure and Anr. Vs. Trevor D’lima and Ors reported in III (2018) SLT 556=II CPJ I (SC)=2018 5 SCC 442, the Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of the amount paid by him along with compensation .

     Keeping in view of the above observation, there is no hesitation to hold that there is a gross negligence and deficiency in service on the part of the OP/ River Bank Developers Pvt. Ltd. and thus, the OP is directed to refund the amount of Rs. 18,93,644/- (Rupees Eighteen lacs Ninety three  thousand six hundred forty four) only to the Complainant within  60 days from the date of this order.

OP is further directed to pay compensation of Rs. 8,16,505/- (Rupees eight lacs sixteen thousand five hundred  five) only and litigation cost of Rs. 5,000/- (Rupees five thousand) only to the complainant within the stipulated period as mentioned above in default, the complainant is at liberty to put the order in execution.

The consumer case is thus allowed ex parte against the OP and disposed off as per above observation.

            Certified copies of this judgment be provided to both parties as per rule. The judgment be uploaded forthwith on the website of the Commission for perusal of the parties.