FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is an application U/S35 of the C.P. Act, 1986.

The fact of the case in brief is that the the complainants are non resident Indians and are presently living at United Kingdom. They have appointed Mr. Kirat Pal of Punjab as their legal and lawful attorney vide power of Attorney dated 08.01.2022.  The Power of Attorney holder is a family friend of the complainants and is well conversant with the facts of the complaint and therefore, competent to file &  pursue the present complaint. The OP on written application of the complainant allotted one apartment in the project named as Hiland Riverfront under Unit No.27B2, 27^th Floor at Tower -1 situated at Kolkata vide allotment  letter dated 18.03.2016 for a consideration price of Rs.1,05,50,735/- . The complainant paid Rs.1,00,000/- towards application money. The complainant paid Rs.25,31,901/- to the OPs in total on different dates. The complainants also applied for housing loan from HDFC Bank and an amount of Rs.86,37,571/- was sanctioned by the Bank. The complainants received a letter from the OP on 14.12.2018 wherein it was stated that the price of the flat is reduced to Rs.91,23,774/- because of the elevated road named as Sampriti. The project was renamed as Hiland River. It was informed to the complainants that the flat shall be handed over to them between April -June 2021 and for the purpose of WBHIRA the delivery of their apartment was required to be made by October,2023. The OP vide e mail dated 18.04.2020 informed the complainants that due to numerous cancellations of booking they have to cancel the allotment of the said apartment of the complainants. Te complainants were further informed that in that case the complainants will be refunded the amount so paid with interest at the rate of SBI prime lending rate plus two percent within three months from receipt of confirmation by the complainants. Alternatyively the complainants may invest the amount in their very soon upcoming project. The complainants opted for deregistration of the apartment and asked for refund of their payment  already made with applicable interest vide e mail dated 28.04.2020 which was promised to be refunded within 31.07.2020. The refund was not made by the OP on several follow up and the OP vide e mail dated 24.05.2021 informed the complainant that the refund is ready and they need some time to release the same. The complainants then  vide e - mail dated 16.08.2021 & 27.09.2021 approached the OP for getting the refund but no reply was received from the end of the OP. Instead the complainants were forced to take over possession in another tower and the complainants are not ready for the same. Subsequently the OPs through whatsapp communication assured the complainants that Rs.35.32 Lakhs approx including interest is held by them. Later an another flat on 5^th floor was offered to them as an alternative which was not agreed by the complainants. The complainants have lost all the trust in the respondent and not at all willing to take possession in another tower. They have neither agreed to pay compensation on account of delay in handing over possession  nor agreed to refund the money paid .The manner of performance which had been undertaken to be performed by the OP in relation to the service provided by them is inadequate imperfect and faulty and amounts to deficiency in service. For the reasons enumerated above the complainants have filed the case against the OP for justice with reliefs as  detailed in the complaint petition.

The case is heard  ex parte for which there is W/V on the part of the OP.

Points for Determination

In the light of the above pleadings, the following points necessarily have come up for determination.

1) Whether the OPs are deficient in rendering proper service to the complainant?
            2)   Whether the OPs have indulged in unfair trade practice?

3)    Whether the complainant is entitled to get relief or reliefs as prayed for?

Decision with Reasons

Point Nos. 1 to 3:-

All the points are taken up together for sake of convenience and brevity in discussion.

            The fact of the case in brief is that the complainants Sanhita Mazunder and Puspal Roy are represented here in this case by their power of attorney holder Kirat Pal, a family friend of them. The complainants were allotted one apartment vide Unit No.27B2, 27^th Floor at Tower -1, Kolkata in April 2016 in the project “Hiland Riverfront” subsequently renamed as “Hiland River” of the OP as per their allotment letter dated 18.03.2016. The cost of the flat  was confirmed by the OP vide letter dated 24.06.2016 to the tune of Rs.1,05,50,735/-. The complainants as per the advice of the OP paid a total sum of Rs.25,31,901/- including the booking amount of Rs1,00,000/-  The value of the flat was subsequently reduced to Rs.91,23,774/- and the possession of the flat was supposed to be handed over in the 2^nd Quarter of 2021 as per letter of the OP dated 14.12.2018. It was also mentioned in the said letter that they are committed to delivering the apartment by October 2023 for the purpose of WBHIRA. But vide e mail dated 18.04.2020 the OP informed the complainants that because of numerous cancellation of allottees they are forced to cancel the project for which they have decided to  refund the amount so far paid with interest at SBI prime lending rate plus two per cent more subject to confirmation from the complainants. The complainants vide e mail dated 28.04.2020.confirmed the option of refund of their payments so far made with interest as mentioned by the OP vide their said e mail. But the OP did not refund the money as promised The complainants again wrote letters dated 16.08.2021 and 27.09.2021 to the OP for getting their refund. But they did not receive any response from the OP. Several times the OP  has promised but ultimately the refund was not made by them. This is a clear case of deficiency in service and unfair trade practice on the part of the OP. The allotted flat has not been handed over nor the amount paid by the complainants have been refunded. In view of the above we are of the considered view that the complainants have established the case against the OP.

In the result, the consumer complaint succeeds.

Hence,

                                                                        Ordered

That the complaint case be and the same is allowed ex parte against the OP with the following directions.

1. The OP is directed to refund the sum of Rs.25,31,901/- to the complainants with simple  interest @ 9% from the date of payment till realization.
2. The OP is further directed to pay  a sum of Rs.50,000/- to the complainant as compensation towards harassment and mental agony charges.
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5. The OP members are also directed to pay a sum of Rs.  20,000/- to the complainant as litigation cost.

The above order is to be complied by the OPs within a period of 60 days from the date of this order. In default, the complainant will be at liberty to put the order into execution.

Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and Judgment be uploaded in the website of the Commission for perusal of the parties.