FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The petitioner/complainant has filed this case U/s 35 read with section 36 of the CP Act, 2019 as amendated up to date.
The fact of the case in brief is that the complainant have booked an apartment No. 2A2 measuring about 712 sq. ft. on second floor, Tower 24 at Highland Greens situated at 1, Bata quarter Road, New land, Batanagar, Kolkata, West Bengal Pin-700140 on 01.03.2014 vide application No. 32061 (new application No. HG1BOOK/00918/13-14). The complainant further stated that the OPs issued an allotment letter dated 01.03.2014 to the complainant and confirm the booking accordingly, the complainant paid the application money of Rs. 50,000/- (Rupees fifty thousand) only and booking amount is Rs. 2,37,750/- (Rupees two lacs thirty seven thousand seven hundred fifty) only and the OP issued receipt to that effect. The allotment letter dated 01.03.2014 and receipts have been annexed herewith as annexure “A” to purchase this flat. The complainant has taken a loan of Rs. 18,07,000/- (Rupees eighteen lacs seven thousand ) only from the SBI, Kolkata High Court SPB Branch being A/c No. 34039309705 and till date his paying the EMI regularly the copy of said bank statement of A/c has been brought into evidence as Annexure “B”.
It is further stated by the complainant that he paid Rs. 97,254/- (Rupees ninety seven thousand two hundred fifty four) only on 07.11.2015 towards electrical infrastructure charged and diesel generator backup charges in respect of apartment No. 2A2 in question as mentioned above. The copy of the forwarding letter 07.11.2015 and the receipt is annexed herewith as Annexure “C” .
Thereafter, as per direction of the OPs vide letter dated 03.02.2020, the complainant paid the 8th final payment of Rs. 4,42,748/-.(Rupees four lacs forty two thousand seven hundred forty eight) only towards scam duty, registration fees and legal fees, purpose deposits for registration. Accordingly, the complainant deposited the same on 03.03.2020 and a receipt was issued by the OPs dated 06.03.2020 to that effect.
It is further stated by the complainant that as per terms and conditions the possession of the apartment has to be handed over within 42 months from the date of allotment i.e. 01.03.2014 by the OP members to the complainant but the OP members failed to the possession of flat in question to the complainant on that date and the next date was fixed for handing over the possession of the flat in question to the complainant on 01.09.2017. The letter dated 03.02.2020, and the receipt date 06.03.2020 are marked as Annexure “D”. Thereafter on repeated request even in writing dated 22.04.2021 by the complainant to handover the possession of flat in question to him. The OPs demanded the common area maintenance charge. The letter dated 22.04.2021 has annexed herewith as Annexure “E”. Thereafter vide email dated 03.06.2021, the complainant informed the OP parties that he paid Rs. 19,800/- (Rupees nineteen thousand eight hundred) only for the purpose of common area of maintenance charges of the apartment in question and the OPs issued the receipt of the same. The email dated 03.06.2021 has annexed herewith as Annexure “F”, thereafter a joint inspection was held at the flat in question on 13.07.2021 and the said report dated 13.07.2021 has hereby annexed as Annexure “G”.
It is the further case of the complainant that thereafter when in spite of repeated request, the OP members did not handover the possession of the flat in question or register the same then he cancelled the booking vide email dated 24.05.2022 of the flat in question due to deficiency in service and unfair trade practice on the part of the OPs. The copy of said email has annexed herewith as Annexure “I”. Thereafter, the complainant sent a legal notice to the OP members which is annexure herewith annexure “J”, then having no other alternative the complainant has filed the instant case against the OPs with a prayer to give direction the OPs for refund of the total earnest money to the tune of Rs. 19,29,800/- with interest @ 18 % p.a. It is further prayed by the complainant that the compensation to be calculated @ 12.50 % per sq. ft. of the 712 sq. ft. chargeable area of the apartment per month effective from the schedule date of possession i.e. from 01.09.2017 till date for the mental pain, anxiety, harassment caused by the OP members due to their deficiency in service and negligence. The complainant also prayed for compensation by the OPs of Rs. 1,00,000/- for his pecuniary damage and litigation cost of Rs. 20,000/-.
In view of the above facts and circumstances, the points of consideration are as follows:-
1. Whether the case is maintainable in its present form in law?
2. Whether the complainant has any cause of action to file this case or not?
3. Whether the complaint is a consumer within the ambit of CP Act?
4. Whether there is/was any deficiency in service on the part of OP members?
5. Whether the complainant is entitled to get relief as prayed for?
6. To what other relief or reliefs is the complainant entitled to get?
Decision with Reasons
All the points are taken up together for convenience of discussion and to avoid unnecessary repetitions.
On a close scrutiny of the materials as well as evidence on record, it appears that the OP members did not file WV within time so their right to file WV has been ceased by this commission vide its order No. 6, dated 17.11.2022.
On the material evidence on record, it also proved that the case is well maintainable within the jurisdiction of this commission/forum.
From unchallenged evidence of the complainant, it is revealed that the complainant is a consumer against the OP members and the OP members did not hand over the possession of the flat in question within 42 months from the date of agreement even after receipt of Rs. 50,000/- as application of money of Rs. 2,37,750/- only as booking amount in respect of flat in question in apartment No. 2A2 measuring about 127 sq. ft. on the second floor, tower 24 at highland greens situated at 1, Bata Quarter Road, New land, Batanagar, Kolkata-700140.
In total the complainant paid Rs. 19,29,800/- to the OP parties for purchasing the flat but as per general terms and conditions, the OPs failed to handover the flat in question as mentioned in the petition of the complaint within the stipulated period i.e. 42 months. Hence, the complainant files the instant case.
It is also proved from the unchallenged testimony of the complainant that on several occasion, the complainant request the OP members to handover the flat in question but the OP members could not handover the same within time even after expiry of stipulated period on receipt of the entire earnest money as mentioned above.
From such conduct of OP members it can be held by this commission that the OP members caused harassment, mental agony and monetary loss to the complainant by their conduct which amounts to deficiency in service and unfair trade practice on their part and for which they are liable to be compensated to the complainant.
The case is properly stamped.
All the points are decided accordingly.
Hence,
Ordered
That the instant case be and the same is allowed ex parte against the OP members with cost. .
The complainant do get the decree in his favour in ex parte against the OP members.
The OP members are directed to pay Rs. 19,29,800/- only to the complainant along with interest @ 9 % p.a. from the date of filing of this case till realisation either jointly or severally.
The OP members are also directed to pay compensation of Rs. 50,000/- to the complainant along litigation cost of Rs. 10,000/- either jointly or severally.
The OP members are directed to comply the decree within a period of 45 days from the date of this order. i.d. the complainant is entitled to get interest @ 6 % p.a. on the entire decreetal amount from the date of default till realisation.
If the OP members would fail to comply the decree within the stipulated period then the complainant would be at liberty to execute the decree through court.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act, 2019. The Judgement be uploaded forthwith on the website of the commission for perusal of the.
