FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.35 of the C.P. Act, 2019.
Briefly put, the facts materials to the case are that OP-2 is a renowned developer and OP-1 is also carrying on business under the OP-2. Complainant had approached the OPs for a residential accommodation nearby Joka and entired into a Memorandum of Undertaking dated 05.03.2013 with OP-1 for purchase of a flat measuring about 1074 sq. ft. super build up area in a project named “Taurus Country” at Daulatpur, Pailanl, Joka at the rate of Rs. 1,750/- per sq. ft. In terms of MOU dated 05.03.2021 the complainant is to be paid 50 percent of the total consideration price of the subject flat and a new sale agreement will be executed after sanction of building plan of the proposed building. There is a clause in the MOU that if the OP-1 failed to get sanctioned plan within 12 month from the date of execution of MOU in that event the total amount paid is refundable with panel interest at the rate of 18 percent P.A. Complainant had paid Rs. 9,16,125/- vide cheque bearing No. 338172 dated 01.03.2013 drawn on Axis Bank and MOU was also executed. The OPs issued allotment letter dated 19.01.2014 by which allotted a flat being No. 2E on the 2nd floor of Block -05 in the said project. The measurement of the flat enhanced to 1114 sq. ft. super build up area instead of 1047 sq. ft. The total consideration price of the subject flat declared as Rs 19,49,500/- excluding PLC and other charges. The OPs under took complete the project within a period of 14 months from the date of allotment letter but the OPs failed to complete the project within specified period.
Further case of the complainant is that several occasion, she had been to the project side and astonished that no such development work is continuing within the said project. Having no other alternative, complainant expressed her desire to terminate MOU vide letter dated 21.05.2018 with a request to refund the advance money along with interest thereon. The OPs agreed to refund the advance amount but till date did not refund the advanced amount with panel interest. Finding no other alternative, the complainant issued legal notice dated 19.01.2015 to the OPs through her Advocate. Notice was unattended. The OPs deliberately adopting unfair trade practice and also deprive the complainant from her lawful right and claims to refund of the advance amount with panel interest, compensation and litigation cost. Hence, the complaint.
Despite service of notice, the OPs failed to file WV within the limitation period. No request for condonation of delay or extension of time for filing of WV is made. Therefore, the right of the OP for filing WV is closed by order dated 24.02.2021.
In support of her case, complainant Smt. Shreya Gupta has tendered evidence through affidavit. On perusal of the complaint, evidence adduced by the complainant coupled with documents annexed thereto, it would reveal that the complainant and the OP-1 had entered into MOU dated 05.03.2013 to purchase the subject flat measuring about 1047 sq. ft. super build up area in a project named Tarus Country at Daulatpur, Pailanl, Joka at the rate of Rs. 1,750/- per sq. ft. Pursuant to said MOU complainant had paid Rs. 9,16,125/- to the OP-1 as advance and the balance amount will be given to the OP-1 on completion of the project. OP-1 issued allotment letter dated 19.01.2015 in favour of the complainant in respect of the subject flat being No. 2E on the second floor of tower 05 measuring an area of 1114 sq. ft. In terms of the MOU the OP-1 is liable to obtain sanction plan from the concerned authority within 12 months from the date of MOU in default they shall refund the advance amount with panel interest at the rate of 18 percent P.A. . The OP-1 failed to complete the construction of the project within the specified period and it is well settled that after making payment of maximum consideration amount, purchaser cannot wait indefinitely having a roof over her head. In that perspective, when the OPs have failed to hand over or delivery of possession of the subject flat within time framed and did not keep promise as per Memorandum of Understanding, this itself amounts to deficiency in service.
In the premises, the complainant is entitled to get relief as prayed for. In our view, when there is hardly any chance to complete the construction of the proposed building in near future, an order directing the OPs to refund Rs 9,16,125/- along with compensation in form of simple interest at the rate of 6 percent P.A. from the date of each payment till its realization will meet the ends of justice. Upon compelling circumstances, the complainant has come up in this commission for which she is entitled to litigation cost which we quantify at Rs. 5,000/- .
In view of the above, the complaint is disposed off with following directions:-
- OPs are directed to refund the amount of Rs. 9,16,125/- along with compensation in the form of simple interest at the rate of 6 percent P.A. in favor of the complainant from the date of each payment till its realization.
- The OPs are directed to make payment a sum of Rs. 5,000/- as cost of litigation cost in favour of the complainant.
The above payments should be made within 60 days from the date in terms of the above order failing which the complainant shall be at liberty to execute the order by filing application under the provision of Consumer Protection Act, 2019 against the OPs.
Copy of judgment be provided to the parties as mandated by the Consumer Protection Act. The judgment be uploaded forthwith on the website of this commission for perusal of the parties.
