Date of filing: 01/11/2017                                                    

Date of Judgment: 20/02/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed by the complainants namely (1) Sri Chandan Kumar Lahiri and (2) Smt. Sudipta Lahiri under section 12 of the Consumer Protection Act, 1986 against the opposite parties (referred as OPs hereinafter) namely Skywood Developers Pvt. Ltd. and C-21 Advisory Service Pvt. Ltd. being represented by its directors namely (1) Sri Koushik Das (2) Sri Sambit Basu and (3) Sri Kalipada Saha alleging deficiency in rendering of service on the part of the opposite parties.

Case of the complainants in short is that by way of a Memorandum of Understanding entered into between the complainants and the opposite parties on 25/08/2014, opposite parties agreed to sell a flat measuring about 700 sq.ft. at a total consideration price of Rs. 17,52,530/- in the project Skywood Estate. Complainant paid sum of Rs. 5,00,000/- by way of Demand Draft dated 11/07/2014 and a cheque dated 24.08.2014 as earnest money out of the total consideration price of Rs. 17,52,530/-. It was agreed that the OP developer failed to get the sanction plan within 08 months, MOU would stand cancelled. On visit to the office of opposite parties so many times, the progress of the said project was not known. So email was sent by the complainant to know regarding the development of the project work but no information was received. So complainants asked for the refund of the sum paid by them due to the delay in the said project but the money was not refunded. Thus the present complaint has been filed praying for directing the opposite parties to execute and register the deed of conveyance or to refund the earnest money paid by the complainant of Rs. 5,00,000/- with interest and to pay Rs. 7,00,000/- as compensation.

On perusal of the record it appears that on receipt of the notice only one of the director namely Kalipada Saha appeared and filed the written version on behalf of the O.P. Company denying the allegation contending specifically that complainants suomoto cancelied the booking of the flat. It is further contended that O.P. desired to complete construction and to hand over the said flat but the complainant refused to buy the flat for delay in construction. It is also contended that all the communications were made by the complainants with Kaushik Das of C-21 Advisory Service Pvt. Ltd., so said Kaushik das is responsible. O.P. has thus prayed for dismissal of the case.

On perusal of the records it appears affidavit in chief was filed by the complainant but the OP neither filed any questionnaire nor filed any evidence. In effect OP did not take any step after filing of the written version. So ultimately argument has been heard on behalf of the complainants. They have also filed the brief notes of argument.

Only point requires determination is whether the complainants are entitled to relief as prayed for?

DECISION WITH REASONS

In support of their claim that they have agreed to purchase a flat from the OP in their project, complainants have filed MOU executed on 25/08/2014 but notarised on 14/11/2014. The OP in its written version has not denied about the execution of MOU. It is evident from the MOU that the OP had agreed to execute a sale agreement after the plan was sanctioned. However, no further agreement for sale was entered into indicating that the plan was not sanctioned which supports the case of the complainants that the project was not started. The payment of Rs. 5,00,000/- as claimed by the complainants have not been denied by the OP in its written version. Complainants have also filed the relevant document showing payment of the said amount of Rs. 5,00,000/- in total. It is true that OP Company was represented by the director Kaushik Das in MOU entered into between the parties but it is not denied in the written version filed by Kalipada Saha representing the OP Company that he is also one of the director. So since admittedly the flat has not been handed over and there is no material before this commission that the project was started in time, complainants cannot be made to wait for an indefinite period and thus they are entitled to refund of the sum paid by them along with compensation in the form of interest.

Hence

            ORDERED

CC/602/2017 is allowed on contest against the OP Company. OPs are directed to refund Rs. 5,00,000/- to the complainants along with interest @ 10% p.a. on the said sum from the date of last payment by the complainant i.e. 24.08.2014 within two months from this date. OPs are further directed to pay litigation cost of Rs. 10,000/- within the aforesaid period of two months. In default of payment the entire sum shall carry interest @ 10% p.a. till realisation.