Presented by:

Minakshi Chakraborty,  Presiding Member

BRIEF FACTS OF THE CASE :

This instant case has been filed by the complainants under section 35 of the Consumer Protection Act 2019 against the O.p. for gross deficiency in service with regard to non-delivery of possession of flat in question. As per submission of the complainant, the O.p. is developer and purchase huge quantity of land for the purpose of making a project namely Hi-land Green Phase-II in order to sell by developing the land by making deferent flats for which the O.p. published an advertisement. Being attracted by the advertisement, the complainant on 20/11/2014 by making payment of Rs.50,000/- booked one residential flat at Hi-land Green Phase-II parcel, tower no.14 on the 6^th Floor being flat/apartment no.6A, in Calcutta River Side Project with one covered car parking space alongwith undivided proportionate share of land which will be mentioned in the Deed of Conveyance. The O.p. provisionally allotted the flat to the complainant on 08/12/2014. According to the complainant on 11/02/2015 he on trust and good faith entered into a Tripartite Agreement with the O.p. for the above mentioned flat and for the same the total consideration amount was fixed as Rs.23,95,000/-. The said flat was proposed to be delivered within 42 months from the date of provisional allotment. As per statement of the complainant, the complainant opted for Bank Finance as he has no fund at that point of time and for the same he entered into the said Tripartite Agreement and he got sanctioned from HDFC Bank of Rs.19,00,000/- and accordingly from the date of booking the complainant by several installments paid more than the consideration amount to the tune of Rs.25,74,709/- alongwith stamp duty and registration charges for the said flat and garage.  After the expiry of the stipulated period when the complainant visited the project to see the progress with his utter surprise he found that there were lots of pending works on the said project and when he enquired about the same the O.p. by sending a letter dated 11/06/2018 inform the complainant that they will hand over the flat by completing the project within 11^th June, 2019. Being convinced by the assurance of O.p., complainant waited for 2 years and sent mail to the O.p. requesting him to hand over the flat but all the efforts of the complainant in vain and till date the O.p. neither handed over the delivery of possession of the said flat nor refunded the amount that has already paid by the complainant.

Having no other alternative the complainant files the instant complaint petition praying to pass an order by directing the O.p. to refund the advanced money of Rs.25,74,509/- with interest @12% per annum on and from 08/12/2014 till realization with a further direction to the O.p. to pay compensation to the tune of Rs.5,00,000/- for causing physical and mental harassment and for Rs.50,000/- as litigation cost.

DEFENCE CASE:

In spite of receiving notice, O.p. did not turned up for which the case is running ex parte against the O.p. vide order no.4 dated 16/08/2023.

Evidence on record

The complainant filed evidence on affidavit and written notes of argument which are nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

Argument highlighted by the ld. Lawyers of the parties

Complainant has filed separate written notes of argument. As per BNA., evidence on affidavit and written notes of argument shall have to be taken into consideration for disposal of the case.

Heard argument of the complainant side at length. In course of argument ld. Lawyer for the complainant has given emphasis on evidence and documents produced by them.

From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief?

DECISION WITH REASONS

Issue no.1:

The pertinent question herein lies whether the petitioner is a consumer?

In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2(7) of the Consumer Protection Act, 2019.The point is thus answered in the affirmative.

Issue no.2:

                 The complainant is resident within the district of Howrah and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.

Issue nos. 3 & 4:

Both the issues are taken up simultaneously for the sake of convenience.

Specific case of the petitioner is that the O.p. is developer and purchase huge quantity of land for the purpose of making a project namely Hi-land Green Phase-II in order to sell by developing the land by making deferent flats for which the O.p. published an advertisement (Brochure/application form of Hi-land Green Phase-II is annexed with mark-A). Being attracted by the advertisement, the complainant on 20/11/2014 by making payment of Rs.50,000/- (Money receipt/acknowledgement cum pay-in-ship issued by River Bank Developers Pvt. Ltd. dated 20/11/2014 is annexed as mark-C) booked one residential flat at Hi-land Green Phase-II parcel, tower no.14 on the 6^th Floor being flat/apartment no.6A, in Calcutta River Side Project with one covered car parking space alongwith undivided proportionate share of land which will be mentioned in the Deed of Conveyance. The O.p. provisionally allotted the flat to the complainant on 08/12/2014. According to the complainant on 11/02/2015 he on trust and good faith entered into a Tripartite Agreement (Agreement dated 11/02/2015 is annexed with mark-B) with the O.p. for the above mentioned flat and for the same the total consideration amount was fixed as Rs.23,95,000/-. The said flat was proposed to be delivered within 42 months from the date of provisional allotment. As per statement of the complainant, the complainant opted for Bank Finance as he has no fund at that point of time and for the same he entered into the said Tripartite Agreement and he got sanctioned from HDFC Bank of Rs.19,00,000/- and accordingly from the date of booking the complainant by several installments paid more than the consideration amount to the tune of Rs.25,74,709/- (photocopies of money receipts have been annexed) alongwith stamp duty and registration charges for the said flat and garage. After the expiry of the stipulated period when the complainant visited the project to see the progress with his utter surprise he found that there were lots of pending works on the said project and when he enquired about the same the O.p. by sending a letter dated 11/06/2018 (copy of the letter is annexed running page no.54) inform the complainant that they will hand over the flat by completing the project within 11^th June, 2019. Being convinced by the assurance of O.p., complainant waited for 2 years and sent mail (copy of the mail is annexed) to the O.p. requesting him to hand over the flat but all the efforts of the complainant in vain and till date the O.p. neither handed over the delivery of possession of the said flat nor refunded the amount that has already paid by the complainant.

In spite of receiving notice, O.p. did not turn up nor any papers or documents has been submitted by the O.p. to contest the instant complaint petition, for the same the Commission has no other alternative but to scrutinize and scan the documents submitted by the complainant and on a careful scrutiny of the documents alongwith the petition submitted by the complainant this Commission finds that in spite of depositing the consideration amount the O.p. did not handover the possession of the said flat to the complainant nor they show their intension to hand over the same to the complainant within specific period of time, rather only by issuing letters the O.p. kill the time, which shows the gross negligence and deficiency in service on the part of the O.p. in giving possession of the said flat in question.

Both the issues are disposed of.

Hence,            

                                                  O R D E R E D

That the Complaint Case No.135 of 2023 be and the same is decreed ex-parte against the O.p.

The complainant do get refund of Rs.25,74,509/- alongwith interest to the tune of @9% per annum from the date of institution of this case till realization from the O.p. within 45 days from date.

The complainant do further get Rs.50,000/- for mental harassment and agony and Rs.30,000/- towards litigation cost from the O.p. within 45 days from date.

In case, the O.p. fails to comply the award passed by this Commission within stipulated period, the complainant is given liberty to take recourse to law.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

The Final Order will be available in the following website The word file is drafted and corrected by me.

(Minakshi Chakraborty)

                  Member

D.C.D.R.C., Howrah