Brief facts necessary for the adjudication of the present complaint are that the complainants relying upon the advertisement of OPs approached them to purchase a residential flat being No. 7A measuring about 1499 sq. ft. consisting  of 03 bedrooms, 01 drawing – cum – dining space, 01 Kitchen, 02 toilets and 01 balcony on the 7^th floor of “Maple Tower” at KMC Premises No. 43, Aurabindo Sarani, Kolkata – 700 004. Complainants submitted an application form dated 15.10.2021 in respect of  the subject flat to the OP 1 company along with an Account Payee cheque bearing No. 000079 dated 15.02.2021 for Rs. 5,00,000/- drawn on Bandhan Bank, Bidhan Sarani Branch, Kolkata – 700 006. Complainants approached the OPs with regard to status of the subject flat and also asked to supply documents of the project such as photocopies of title deed, mutation certificate, L. R. record, sanctioned building plan of the proposed building. Despite making several request, the OPs did not supply those documents for necessary searches of the property for financial assistance. Complainants approached the State Bank of India, Behala Branch to get Home Loan and the bank instructed to submit copy of Development Agreement and sanction building plan of the project for processing the loan. In spite of numerous attempts, the OPs did not show any inclination to enter into any Agreement for Sale despite receiving cheque of Rs. 5,00,000/- . It is the prerogative of the OPs to allow the complainants reasonable opportunity to purchase the said flat prior to selling it to any third party. OPs are trying to enter into an Agreement for Sale of the flat to third party. Alleging deficiency in service and unfair trade practice on the part of the OPs, the complainants approached this commission.

OP 1 has contested the case by filing WV denying all the material allegations as leveled against them. The specific case of the answering OP is that in the year 2018 they sold the flat being No. 7A to Vikesh Kumar Sharma and Smt. Anita Sharma at a consideration of Rs. 1,18,86,604/- plus GST by an agreement and the complainants were informed regarding sale. Once the flat sold to Vikesh Kumar Sharma & another, the question for allotment of flat No. 7A to the complainants cannot be accepted. Complainants need not disclose the agreed sale price of the flat in their complaint petition. Submission of application of allotment of flat in the project “Maple Towers” does not ipso facto to create any right or interest in favour of the complainants. The answering OP is within its right to reject the said application in terms of clause G (1) and G (2) of the application form. No agreement for sale was executed between the parties. In absence of any contract, the complainants are not consumers and they never availed any services for any consideration. Application for allotment of flat by an intending purchaser is not concluded a contract between the builder and the applicants for sale of the flat. It is only a request for allotment of flat. Thus, the complaint is liable to be dismissed.

Despite service of notice of the complaint,  OP 2 did not turn up to contest the case by filing WV within the statutory period as provided under the CP Act, 2019. Thus, the case runs ex-parte against the OP 2.

Complainant No. 1 Manabendra Saha Roy has filed their evidence by way of affidavit in order to prove their averments made out in the complaint petition. After giving opportunities  to the OP 1 they failed to file their e/chief supported  by an affidavit. Thus, their right to file E/chief of the OP 1 is for fitted.

On scrutinizing of the photocopy of application form, it appears that complainant No. 1 approached the OP 1 Sadgati Properties Private Ltd. for purchasing a flat and car parking space for their project “Maple Tower” at premises No. 43, Aurobinda Sarani, P.S. Shyampuikur, Kolkata – 700 004. Booking application form was accompanied  with an account payee  cheque bearing No. 000079 dated 15.02.2021 drawn on Bandhan Bank for Rs. 5,00,000/-. Complainant No. 2 Smt. Sanchita Saha Roy is the co-applicant. The OP 1 in their WV denied that they have received any application form from the complainants for purchasing the flat. Thus, the question of entering into any agreement for sale does not arise and the complainants are not consumers under the CP Act, 2019. Looking into para – 38 of the WV of the OP 1, it palpably transpires that  apparently they have discretion to accept or reject any application and the question of granting any opportunity to the complainants does not arise. Furthermore, the OP 1 denied the question of rendering any service to the complainants and the grievances of the complainants does not come within the purview of the CP Act, 2019.

It is true that the OP 1 did not encash the account payee cheque bearing No. 000079 dated 15.02.2021 drawn on Bandhan Bank, Bidhan sarani Branch, Kolkata – 700 006 for Rs. 5,00,000/- nor returned it to the complainant No. 1.  Undisputedly, the OP- 1/ Developer at their absolute discretion to reject the application form with cogent reason and it is obligatory   duty of the OP 1 to refund the account payee cheque amounting to Rs. 5,00,000/- accompanied with application from the complainant No. 1. Thus, the OP 1 being the Developer/Promoter and OP 2 being its director willfully kept in abeyance        of the application form of the complainants in respect of the flat without assigning any reason. They deprived the complainants to purchase the flat and sold it to Vikesh Kumar Sharma and Smt. Anita Sharma for a total price of Rs. 1,18,86,604/- plus GST vide an agreement dated 22.05.2018. Photocopy of transfer deed executed in favour of Vikesh Kumar Sharma & another is not produced by the OP 1 to establish their case that flat was sold prior to application form submitted by the complainants. It is  own admission of the OP 1 in Para – 8 of their WV that complainants were informed that the said  flat had already been sold and hence the flat cannot be sold to the complainants and their application for allotment cannot be accepted. Form the aforesaid admission, it is clear that the complainants  are genuine applicants and without rejecting their application flat was sold to third party.

In the present case, the OP 1 did not give any valid reasons as to why they withhold the application form of the flat submitted by the complainants despite their right to reject the application. Moreover, a person cannot be made to wait indefinitely for getting reply regarding rejection and/or acceptance of the application for allotment of flat. Thus, it is clear that the complainants fall under the definition of consumers and the OPs failure to provide any service and adopted unfair trade practice. OPs wrongly withhold the application of the complainants. As a result, the   complainants suffered physical and mental harassment. Thus, the complainants are entitled to get compensation and litigation cost. The case is allowed on contest in part against the OP-1 and ex-parte against OP 2.

Keeping in view the facts of the present case, we allow the following reliefs as prayed for by the complainants :-

1. We  direct the OPs to pay an amount of Rs. 4,00,000/- (Rupees four lacs) only as compensation for their unfair means of trade practice and for mental agony and harassment to the complainants on or before 10.11.2022.                    .
2. In addition to the aforesaid and taking into consideration the facts of the present case, the OPs are also directed to pay to the complainants a sum of Rs. 10,000/-(Rupees ten thousand) only as cost of litigation.
3. In case the OPs fail the pay the amount as per the aforesaid clause (i) on or before  10.11.2022   the entire amount is to be refunded with an interest @ 7 % p.a. calculated from the date of submission of application form till the actual realization of the amount.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

File be consigned to record room along with a copy of this judgment.