Hon’ble Mrs. Dipa Sen (Maity), Presiding Member

The instant complaint petition has been filed by the Complainant, Mr. Abhishek Jaiswal against the Developer alleging deficiency in service in relation to housing construction. 

Brief facts of the present complaint case is that being an intending purchaser of a flat and a car parking space in a proposed housing project “Hiland Greens” at Batanagar, Maheshtala, the Complainant initially with his mother has applied jointly in February, 2014 for purchasing a flat in the said project.  However, the Joint Applicant Uma Jaiswal vide her letter dated 06.03.2017 relinquished her right from that intended property and the same was accepted by the Respondents. The consideration amount of the said flat was decided Rs.18,05,000/- (Rs. Eighteen lakh five thousand) only and allotment was made on 23.07.2014 and in that allotment letter it was mentioned that the possession of the subject flat will be delivered within 42 months i.e. by January, 2018.  The Complainant has made payment of the consideration amount from time to time as per the schedule mentioned in the allotment letter.  The O.Ps vide letter dated 24.02.2017 has demanded Rs.89,000/- (Rs. Eighty nine thousand) only as 8^th and final instalment.  The same amount was paid by the Complainant and received/acknowledged vide money receipt dated 01.04.2017 by the O.Ps.  But in spite of making payment of full consideration amount for the said subject flat and Rs.1,43,687/- (Rs. One Lakh forty three thousand six hundred eighty-seven) only towards car parking space which was duly paid on 01-04-2017 and was duly received by the O.Ps on same date.  The O.Ps did not hand over possession and refused to pay compensation for delay in terms of the brochure and illegally raised bills of maintenance prior to hand over possession.  The Complainant has suffered a huge loss since he had to find a temporary accommodation in a flat “Sukhobristi” New Town at a monthly rent of Rs.10,000/- per month.  Even after lapses of considerable period the O.Ps have miserably failed and refused to hand over possession of the said subject flat along with car parking space.   The O.Ps refused to make any payment as compensation on the ground of their financial constraints and dispute has arisen between the parties. Without finding any other way the Complainant prefers this instant complaint case before this Commission with the prayer for delivery of possession and registration of the said subject flat and car parking space in favour of him along with an alternative prayer for refunding the entire amount along with interest and compensation.

It appears from the record that in support of his case the Complainant has filed evidence on affidavit and Brief Notes of Arguments.  But even after proper services of notices none appears on behalf of the O.Ps.  No Written Version has been filed by them and the case was fixed for ex- parte hearing against the O.Ps.

Ld. Advocate appears for the Complainant submits that the Complainant Mr. Abhishek Jaiswal with his mother Uma Jaiswal has booked a flat in the proposed Project Hiland Greens by the Riverbank Developers Pvt. Ltd., However the Joint Applicant Uma Jaiswal vide her letter dated 06.03.2017 relinquished her right and the same was accepted by the O.Ps.  The Opposite Parties have charged Rs.5000/- from the Complainant for this.  The Complainant has booked the subject flat at Rs.50,000/- (Rs. Fifty thousand) only on 05.07.2014.  Afterwards they have made payments of Rs.20,01,233/-+Rs.89,000/- = Rs.20,90,233/- (Rs. Twenty lakh ninety thousand two hundred thirty-three) only in several instalments from time to time.  The said amount was duly received and accepted by the O.Ps.  It was promised by  the Opposite Parties/Developers that the said flat will be handed over within 42 months from the date of allotment i.d. Respondent would be compensated @ Rs.12.50/- per sq.ft every month till the date of possession.  That in pursuant to repeated follow up by the Petitioner through email the Respondent replied on 27.08.2019 that the subject apartment would be handed over by January, 2020 or February 2020 approximately.  However, expiry of the stipulated period of time of 42 months i.e. by January, 2018 the said flat was not handed over to the Complainant. Despite timely payment made by the Complainant the O.Ps did not only delay in giving possession rather refused to pay compensation on the ground of financial constraints.  The O.Ps have accepted the request for providing car parking space and issued allotment letter in that respect.  The O.Ps vide letter their letter 24.02.2017 has demanded Rs.89,000/- (Rs.Eighty nine thousand) only as 8^th and final instalment since the final instalment will be payable only at the time of possession and the same was given by the Complainant to the O.Ps on 31.03.2017.  The same was acknowledged through a receipt dated 01.04.2017 

From the factual matrix it clearly appears to us that the Complainant has made payment of aggregating Rs.20,90,233/- (Rs.Twenty lakh ninety thousand two hundred thirty-three) only towards the consideration amount of the subject flat along with car parking space and excess payment of Rs. 89,000/- (Rs. Eighty nine thousand) only.  But in spite of expiry of stipulated period of 42 months as stated in the allotment letter dt.23.7.2014 in page no.14, the possession of the said subject flat along with car parking space was not handed over to the Complainant even 5 yrs. have elapsed.  It appears from perusal of record that the Complainant has paid full consideration amount but possession was not handed over to him within the stipulated period of time.  The Petitioner has suffered a huge loss since he had to take a temporary accommodation in a flat in ‘Sukhobristi’, New Town at monthly rent of Rs.10,000/-( Rs.Ten thousand) only per month.  But as we do not find any such tenant receipt in record we cannot consider the same.

As the O.Ps did not file any Written Version or evidence on affidavit the averment made by the Complainant remained uncontroverted and unchallenged. 

Careful perusal of materials on record clearly demonstrate that the Complainant is a “consumer” as defined U/s.2(1)(d) of the C.P.Act, 1986, as the Complainant has hired services relating to housing construction after making payment of consideration amount for the said purpose.  But in spite of payment of huge amount of Rs.20,01,233/- (Rs. Twenty lakh one thousand two hundred thirty-three) only along with advance payment of Rs.89,000/- (Rs. Eighty nine thousand) only i.e. in total Rs.20,90,233/- (Rs. Twenty Lakh ninety thousand two hundred thirty-three) only the O.P Developers did not handover possession of the said subject flat within 42 months and even after lapse of more than 5 years and did not return hard earned amount of the Complainant and unlawfully holding the same.

In a case, 2022 (1) C.P.J, 23 (NC) between Kamal Malhotra Vrs. Parsvnath Developer Ltd. the Hon’ble NCDRC has already decided that the O.P is duty bound to complete the construction within the due period of time as per agreement and the Complainant cannot be made wait indefinitely for possession of the flat as the construction is not completed.

In view of that decision we consider such act of O.Ps as deficiency in service as well as unfair trade practice adopted by the O.Ps. 

Considering the facts and circumstances of the case alternative prayer for refund of the Complainant may be considered. 

With the above discussions, the Complainant is allowed ex-parte with the following directions against the O.Ps.:-

1.  O.Ps are directed to refund Rs.20,90,233/- (Rs. Twenty lakh ninety thousand two hundred thirty-three) only to the Complainant along with compensation in the form of simple interest @ 9% p.a. from the date of each payment till its actual realisation.
2. The O.Ps are further directed to pay Rs.10,000/-(Ten thousand) only as a cost of litigation. 
3. The above payment must be paid within 60 days from the date of communication of this order.

The Complainant is at liberty to put the order in execution for non-compliance of the Commission’s order.

Office is directed to serve copy of this Final Order to the parties free of cost as per Regulation.