Smt. Shampa Ghosh, Hon’ble Member:-
The fact of the case in brief is that the complainants are the husband and wife in relation.
The OP being a land owner and developer launched a housing project namely “Sanhita” at Mouza – Satuli, P.S. – Kashipur, in the District of South 24 Parganas and the complainants being in need of dwelling unit booked a one
BHK flat being flat No.7D1 measuring about 485 Sq.ft. (Super built up ), consisting of one bed room,. One dinning , one kitchen, one toilet one veranda at 7th Floor of Block-2B1 of the said housing project at a consideration price of Rs.9,17,857/- only plus GST totalling to an amount of Rs.10,00,000/- (Rupees Ten Lakhs) only.
A sale agreement between the developer and the complainants cum prospective buyers was also executed (Annexure-A).
On their application, the said flat was allotted by the OPs as per allotment letter dated 28.04.2018 (Annexure-B). As per agreement the said flat was scheduled to be handed over within 12 months with a grace period of 6 months from the date of the said agreement i.e. by 28.10.2019. The complainant paid a sum total of Rs.9,44,056/- only. But till date the flat has neither been handed over to the complainants nor registered in their favour. On being followed up by the complainants personally and by e-mail dated 08.04.2021, wherein specially requested about the exact date of completion of the project and about the HIRA registration number of this project, the OP responded with an email dated 09.04.2021 stating that the flat would be delivered by December, 2021.(Annexure-C).
Since then the said flat is still undelivered. Finding no other alternative the complainants sent a legal notice on 27.07.2021 through their Ld. Advocate to refund back the entire consideration amount of Rs.9,44,046/- due to non-compliance of the terms and conditions of the agreement on the part of the OPs and compensation for the deficiency in service. The said legal notice along with the corresponding service track report are annexed (Annexure-D).
As there was no response from the OPs and due to such non-compliance, the complainants had no option but to file the instant complaint case with a prayer for a direction of refund from the OPs. The complainants prayed for refund of Rs.9,44,065/- along with 18% interest and a compensati0on of Rs.5,00,000/- only and a litigation cost of Rs.1,00,000/- only.
Meanwhile the complaint case was dismissed on 11.04.2022 vide CC/54/2022 with a liberty to file afresh. The complainants filed fresh complaint case on 02.08.2022. The OPs contested the case by filing W/V contending inter allia that the claims of complainants are all false. Due to COVID-19 Pandemic situation the development work of the said project was getting delayed. The construction work of the said project has been completely closed due to unavailability of labour. The complainants were duly informed of the same. It was also the contention of the OPs that they neither abandoned the project nor there is any deficiency in service on the part of the OPs. All the circumstances were beyond the control of SIMOCO SYSTEMS due to COVID-19 for which the OPs suspended the said project work for such period. The construction of the said project is still going on. The OPs also denied all the other allegations made by the complainants para-wise and prayed for dismissal of the case with cost. The complainants are not entitled to get relief as prayed for. The records, documents and exhibits were perused that are available on the record.
Points for consideration :-
- Are the complainants consumers?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Are the complainants entitled to get relief as prayed for?
Decisions with reasons :-
Points No.1, 2 & 3 :-
All the points are taken up together for a comprehensive discussion.
On perusal of the case records along with the copies of documents, it appears that the complainants intended to purchase the scheduled flat as described in the petition of the complainant at a consideration of amount of Rs.10,00,000/- including GST only for which an agreement for sale dated 28.04.2018 has been executed by and between the parties and the payment has been made by the complainants to the OPs who acknowledged with receipt of the same by issuing money receipt. Therefore, the complainants are the consumers as defined U/S 2(7) of the consumer Protection Act, 2019.
The complainants booked the scheduled flat being flat No.7D1 and entered into an agreement on 28.04.2018 with the OPs to that effect and the complainants paid Rs.9,44,056/- only out of total consideration amount of Rs.10,00,000/- only which includes GST. Now even after lapse of expiry of stipulated time limit for delivery of possession, the said work has not yet been completed by the OPs. Many notices were sent to the OPs, but despite the said notices the OPs neither delivered the possession of the scheduled flat nor executed and registered a proper deed of conveyance in respect of the same receiving the balance consideration amount. The OPs also did not return back the amount of earnest money with bank interest which they received from the complainants. Therefore, it is crystal clear from the averments of the complainants that the OPs are guilty of committing deficiency in services and unfair trade practice.
The complainants already paid Rs.9,44,056/- only out of total consideration amount. Now even after expiry of stipulated time limit for delivery of possession, the said project work has not yet been completed by the OPs. Despite receipt of legal notices, the OPs failed to deliver the possession of the scheduled flat nor executed and registered a proper deed of conveyance in favour of complainant receiving the balance consideration amount from the complainants. As such, there is no hesitation to hold that the complainants are entitled to get relief as prayed for. The complainants failed to get satisfactory service from the OPs, on the other hand, the complainants suffered mention agony, harassment by the OPs by various ways. Therefore, the complainants are entitled to get relief as prayed for.
In view of the above discussion and considering the attending facts and circumstances of the case this Commission is of the view that the complainants have succeeded in proving their case.
In the result, the complaint case succeeds.
Court fees paid is correct.
Hence, it is
ORDERED
That the instant complaint case be and the same is hereby allowed on contest against the OPs with cost of Rs.25,000/- (Rupees Twenty Five Thousand) only.
The OPs are jointly and severally liable and are directed to refund Rs.9,44,056/- (Rupees Nine Lakhs Forty Four Thousand and Fifty Six) only along with simple interest @9% per annum w.e.f. 28.04.2018 till the date of final realization thereof within 60 days from the date of passing this order.
The OPs are jointly and severally liable and are directed to pay compensation to the tune of Rs.50,000/- (Rupees Fifty Thousands) only for deficiency of service, mental paid and agony and harassment suffered by the complainants within 60 days from the date of passing this order.
The OPs are jointly and severally liable and are directed to pay the litigation cost of Rs. 25,000/- (Rupees Twenty Five Thousand) only within 60 days from the date of passing this order.
That the complainants are at liberty to put the order into execution after the expiry of 60 days in case the orders are not complied with by the OPs within 60 days from the date of passing this order.
Let a copy of this order be supplied free of cost to the parties concerned.
That the final order will be available in the following website:www.confonet.nic.in.
Dictated and corrected by me.
Member
