Judgment

 This is an application U/S.34 read with 35 and 38 of the C.P Act  of 2019

The applicant Mr Sushil Kumar Agarwal of 783,Anandpur Tower-1,602,E.K.T,Kolkata-700107  was in search of one residential accommodation and came to know from different sources that the OP started one project called “Hiland Greens” The complainant approached the OP through their marketing agent M/S Pioneer property and purchased one Brochure on payment of Rs.200/-.After going through the brochure which contained the general terms and condition and being convinced by the OP’s commitment the complainant paid Rs,50,000/ by cheque as an application money through acknowledgement –cum pay-in slip sl.no. 30808 on 12/02/2014.Later as per the application form the OP issued one allotment letter dated 01.03.2014 one apartment bearing no.9A3 on 9^th floor,Tower no.25 at “Hiland Green” area measuring 712 sq.ft super built area along with one car parking pace for for a consideration price of Rs 18,05,000/- as cost of apartment and Rs 2,75,000/- as cost of car parking space as total amounts stands Rs.20,80,000/ plus 85,310/- for electrical Infra and DG Backup Rs.25,000/- as corpus deposit along with applicable service tax and other expenses. The total payment made by the  complainant to the OP during the period from 12/02/2014 to 03/05/2016 was Rs 20,08,808 ( Rupees Twenty Lakh eight thousand eight hundred eight) and only.. 1,88,874 ( One lakh eighty eight thousand eight hundred seventy four)only was due .

As per the general terms and condition the OP must complete the project and deliver the same within 42 months from the date of allotment .The said period of 42 months expired in September, 2017 but the OP has not been able to give possession of the apartment to the Complainants. Further, the OP vide letter dated 19.04.2017 requested payment on account of registration charges, stamp duty and corpus deposit of Rs.27,000+Rs 1,61,800+Rs 15,000 / respectively and offered to pay 12% interest from the date of payment till the date of actual registration. Continuing this they also committed to commence pre-delivery inspection from 1^st May 2017.On receipt of the demand letter the complainant immediately visited the site which he found that the work was incomplete, inhabitable and not fit to stay.The OP failed to obtain completion certificate from the competent authority too.on the contrary the OP vide letters date 30.12.2020 and 03.01.2021 further demanded Rs 4,32,059 from the complainant as full and final demand including penal charges.It is further stated by the complainant that the OP has not been complying with the West Bengal Industry Regulation Act,2017(WBHIRA Act) .The OP had violated the section 11 and Section 18 of the WBHIRA Act

That the complainant also send to the OP several emails dated from 12.01.2021 to 01.03.2021  requested the OP to compute the interest  on delayed payment on the basis of General terms and conditions.Further,OP through email dated 27.02.2021 and 01.03.2021 intimated that since they have committed delay in making timely payment in some of the instalments so,the complainant was not eligible  for any compensation .But the complainant submitted that they have compelled to pay interest @18% for delayed period.

After waiting several years and being frustrated the complainant sent one legal notice to the OP dated 07.05.2021 and raised serious grievance about huge delay in construction and violation of GTC and requested the OP for cancellation of booking and demanded refund of deposit amount of Rs 20,08,808 with delayed interest along with compensation. Ignoring the legal notice the OP sent one letter dated 03.07.2021 and demanded Rs 4,35,059 and vide letter dated 28.10.2021 the demanded Cam charges Rs,11,880/.

The Complainant finally replayed that after passing more then 7 years he is not interested to purchase the apartment rather He is claimed of refund of the deposited amount with interest and compensation.

        The OP has failed and/or neglected to act in terms of the agreement and complete the construction of the apartment and hand over possession of the same within 2017. Thus, they had committed mal practice and unfair trade practice in collecting entire costs,and failed and/or neglected to deliver the apartment within time agreed. Thus, there is deficiency in service on the part of the OP as well as adoption of unfair trade practice.  Finding no other alternative, they have knocked the door of the Forum for getting justice. The complainant has filed   evidence . BNA has also been filed by the complainants.

                         On perusal of records, we find that notice was served upon OP on 21.06.2022 and the OP has not entered appearance on 18.08.2022, 28.10.2022 . On 13.12.2022 the matter was fixed for ex parte hearing of the case . On 01.06.2022  the. As such, the stipulated period of filing WV on the part of the OP has already been over. On 23.02.2021.There was no prayer on the part of the OP to accept the WO.  On 10.02.2023 the case was finally heard ex parte. No steps was taken by the OP in the meantime.

                                   Points for Determination

On the perusal of the entire documents, the following  points have necessarily come up for determination.

1) Whether the OP is deficient in rendering proper service to the complainant and whether the OP has adopted any unfair trade practice.

2) Whether the complainants are entitled to get relief or reliefs as prayed for.

 Decision with Reasons

Point Nos. 1 to 2 :-  

The above mentioned two points are taken up together for the sake of convenience and brevity in discussion.  

            We have travelled over the documents placed on record. Facts remain that the complainant Mr Sushil Kumar Agarwal of 783,Anandpur  Tower-1,602,E.K.T,Kolkata-700107 have booked an Apartment bearing no.9A3 on 9^th floor,Tower no.25 at “Hiland Green” area measuring 712 sq.ft super built area along with one car parking space for a consideration price of Rs 18,05,000/ by the OP at Batanagar,Mahestala,Kolkata  and Rs 2,75,000/- as cost of car parking space as total amounts stands Rs.20,80,000/ plus 85,310/- for electrical Infra and DG Backup Rs.25,000/- as corpus deposit along with applicable service tax and other expenses.The total payment made by the  complainant to the OP during the period from 12/02/2014 to 03/05/2016 was Rs 20,08,808 ( Rupees Twenty lakh eight thousand eight hundred eight)

       Possession of the apartment has been mentioned in 11 (a) of the general terms and conditions of the project of Hiland Green of  the OP and read as follows: “subject to force majeure, RDPL will endeavour to give possession of the Apartment to the allottee(s) within 42 months from the date of allotment of the Apartment”. The date of allotment of apartment was 01.03.2014. The period of 42 months completed  on 01.09.2017  and the OP has failed to deliver possession of the Apartment to the complainants within the stipulated period.

            Clause 11 (d) of the said general terms and conditions speaks as follows: “in the event RDPL does not endeavour to give possession of the Apartment to the allottee within the stipulated period of time (subject to force majeure as stated in paragraph 11 (a) and (b), then RDPL will pay compensation to be calculated @ Rs. 12.50 per sq. ft. of the chargeable area of the apartment per month, effective from the scheduled date of possession till the ‘date of possession’ (as defined herein after), to such allottees who have not  committed any default or delay. ” The complainants’ vide their letter dated 07.05.2021 instructed the OP to cancel the allotment and refund all the moneys paid to the OP with along with interest and compensation . In spite of that the OP failed to refund the money to the complainant.  But we do not find any step by the OP in the matter of refund of the money paid by the complainant. As such, it is established that the OP is deficient in rendering proper service to the complainant.

       Moreover, we have found that the OP vide their letter dated 03.07.2021 demanded Rs.4,58,679/ and vide another letter dated 28.10.2021 has demanded 11,880/ from the complainant as Cam Charge at the point of time when the construction has not been completed and the apartment is not at all ready for possession. .

 In view of the above, we are of the considered opinion that the complainants have established their case against the OP. All the points under determination are disposed of.

Hence,

Ordered

That the complaint petition be and the same is allowed ex parte against the OP.

OP is directed to refund Rs. 20,08,808/- along with compensation @ Rs. 12.50 per sq. ft. per month for chargeable area of 712 sq. ft. from 01.10.2017 to till realization.

OP is further directed to pay Rs. 50,000/- to the complainants as compensation against harassment and mental agony suffered by the complainants with litigation charge Rs. 20,000/-.

 The OP is directed to comply the above order within a period of one month from the date of this order failing which the complainants will be at liberty to put the order into execution.