This case has been filed u/S 35 of the Consumer Protection Act, 2019 by the complainant alleging deficiency in service on the part of the above mentioned O.Ps.
The case of the complainant in brief is that the complainant entered into an agreement for sale dated 12th February, 2020 with the O.Ps. for purchasing a flat to the ongoing development project of the O.Ps. at Mouza – Malipanchkhara, R.S. Dag No. 305 under Howrah Municipal Corporation, Holding No. 2/3, Girish Ghosh Lane, District – Howrah in the year 2019. It is stated in the petition of complaint that O.P. No. 2 assured the complainant that the said flat would be completed within December, 2020 and requested the complainant to pay an amount of Rs. 7,00,000/- for a flat measuring 400 Sq.ft. Thereafter, the complainant paid Rs. 7,00,000/- to the O.P. No. 1 in between January, 2019 to February, 2020 and subsequently O.P. 1 issued a money receipt in favour of the complainant. It is further stated in the petition of complaint that if the O.P./developer fails to deliver the possession of the flat within 31st December, 2020 to the complainant then the O.P. will be liable to refund the total amount to the purchaser within 7 days from the request of refund. It is further stated that the developer would notify the purchaser regarding the completion of the said flat within 7 days from the date of sending notice to the purchaser for receiving the possession of the said flat upon payment of all dues payable. According to the terms and conditions of the agreement for sale the complainant paid Rs. 1,00,000/- (Rupees one lakh) only by cash and Rs. 6,00,000/- (Rupees six lakh) vide cheque to the OP no1 with good faith to receive the possession of the residential flat within 31.12.2020 but the said flat is neither completed nor is handed over to the complainant till date. It is stated by the complainant that after 31.12.2020 on several occasions complainant requested the OPs to refund the entire paid amount .At last on 30.10.2021 OPno1 handed over a cheque of Rs. 6,00,000/- vide no 000040 drawn on Bandhan Bank and OP no 1 promised to pay balance amount within a month. It is further stated by the complainant that the said cheque was dishonoured by the said Bank due to insufficient fund. Complainant informed the said fact to the OPno2 but OPno2 did not do anything towards the matter. Complainant requested the OPs to refund entire paid amount by sending Advocate’s latter dated 24.11.2021 but OPs did not turn up. Finding no alternatives the complainant filed this case praying for direction upon the OPs to refund Rs. 9,52,000/- with interest @18% p.a. from the date of making payment along with compensation of Rs. 3,80,000/ and litigation cost of Rs. 1,00,000/-.
Opposite Parties filed their written version beyond the statutory period of filing the same. Hence, this Commission did not accept the Written version filed by the OPs. Thus the case was proceeded ex parte against all the OPs vide order no.05 dated 02.12.2022.
Decision with reasons
In order to prove his case the Complainant Mr. Anil Seth adduced Affidavit –in –chief and relevant documents. It appears from the ‘Memo of Receipt’ that Complainant paid Rs. 7,00,000/- to the OPs receiving which OPs acknowledged the same on 12.02.2020.
Letter dated 23.11.2021 proves that the cheque issued by the O.Ps. in favour of the complainant dishonoured by the Bank of Baroda due to insufficient fund and the complainant requested the O.Ps. to refund the same by sending letter dated 23.11.2021.
However, from the unchallenged document of the complainant we are constrained to hold that O.Ps. did not refund the amount paid by the complainant to them. Therefore, it is evident that O.ps. neither deliver a flat to the complainant nor they refund the entire paid amount to the complainant. Deviation from promise to deliver a flat amounts to deficiency in service on the part of the O.ps.
In course of hearing, complainant stated that no construction work has been done till today. Hence, complainant prayed for refund of the entire paid amount. We hold that complainant cannot wait for an indefinite period to get possession of a flat. Hence, we are of the opinion that an order for refund of paid amount with 8% interest in the form of compensation shall be just and proper.
In the result, the petition of complaint succeeds.
Hence, it is,
Ordered
that the complaint case being No. CC/171/2022 is allowed ex-parte against the O.P. Nos. 1 and 2 with cost.
O.Ps. are directed to refund Rs. 7,00,000/- to the complainant along with interest @ 8% per annum from 12.02.2020 till realization in the form of compensation to the complainant within 45 days from this date of order.
O.Ps. are further directed to pay Rs. 15,000/- as litigation cost to the complainant.
All such payments shall be made within 45 days from this date of order, failing which entire amount shall carry interest @ 12% per annum.
Let a plain copy be given to the parties free of cost as per CPR.
Dictated and corrected by
[HON'BLE MRS. Sagarika Sarkar]
MEMBER
