Date of Filing : 02 November, 2020.

Date of Judgement : 08 June, 2023.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when the complainant, Sri Kanchan Kumar Chanda, filed a complaint under Section 35 of the Consumer Protection Act, 2019, herein after called the said Act, against Sri Bikash Patra, proprietor of M/s. M. B. Construction, herein after called the Opposite Party or O. P., alleging deficiency in service occurred from the part of the O. P.

            The statement of the complaint is, in brief, that the Complainant, while in search of a flat for better accommodation, met with the O. P. who had undertaken a project of constructing a three-storied building at the premises No. 51, Banerjee Para Road, Sarsuna, under Ward No. 127 of KMC, P. S. – Thakurpukur now Sarsuna, Kolkata – 700 061.  Complainant agreed to purchase one flat on the second floor measuring about 700 sq. ft. super build up area and another flat on the ground floor measuring about 400 sq. ft. in that building  for a consideration of Rs.10,50,000/ and Rs.7,00,000/- respectively. Complainant made an Agreement 15/05/2017 with the O. P. for the 700 sq. ft. flat and on 17/03/2017 for the 400 sq. ft. flat.  Complainant paid entire consideration of Rs. 10,50,000/- for the 700 sq. ft. flat and also paid Rs.4,00,000/- as a part payment for the 400 sq. ft. flat.  These amounts were paid on different dates in different amounts.  Complainant states that till date the O. P. had not completed the construction of his two flats.  O. P. did not respond whenever complainant tried to contact for enquiring about the construction of his flats.  Complainant states that the O. P. had abandoned the project of constructing the building and left his office and was not available at 315/2, K. K. Roy Chowdhury Road, his residence, and after a long searching he found that the O. P. was then residing at 1/70, 42 Feet Road,  1 No. Mukundapur Colony, Mukundapur, Kolkata – 700 099.  He then met the O. P. on 01/03/2020 and 09/03/2020 at his new residence and requested to refund his money.  O. P. then handed over copies of some papers relating to a flat at Mukundapur which he intended to offer the complainant in lieu of the previous flats and at the consideration of Rs.14,50,000/- which the complainant had paid earlier.  But thereafter complainant failed to contact with the O. P.  Complainant then sent legal notice on 25/06/2020 demanding refund of his money.  Complainant lodged criminal complaints against the O. P. U/S. 420 & 406 of IPC at Sarsuna P. S.  But the O. P. did not respond to his notice for which he filed this instant complaint praying for (i) refund of his deposited amount along with bank interest thereon, (ii) a compensation of Rs.3,00,000/- and Rs.30,000/- as damages for the mental agony together with litigation cost and such other orders as this Commission deem fit and proper.

            Complainant submitted copies of (i) Agreement for Sale dated 17/03/2017, (ii) Agreement for Sale dated 15/05/2017, (iii) Statement of account from 18/02/2017 to 01/08/2018 and (iv) legal notice dated 25/06/2020.

            Notice was served, after admission, to the O. P. in his two addresses to appear before this Commission and contest the case.  Notice was duly served to the O. P. at his Mukundapur address while the other returned back with report: ‘Item Returned Insufficient Address’.  However, the O. P. never appeared before this Commission to contest the case and thus the case proceeded ex parte.  Complainant then filed his Affidavit-In-Chief.  Consequently ex parte argument was heard and complainant filed his Brief Notes on Argument. We have now come to the position to deliver the Final Order in this case.  We have to decide whether the O. P. is deficient in rendering proper service to the complainant for which he is entitled to get relief as prayed for.

DECISION WITH REASONS

            Let us consider the two Agreements for Sale first taking into account the statement of the complaint petition.  On 17/03/2017 the first notarised agreement was executed between the complainant as a purchaser and the O. P. as the Developer/Confirming Party.  According to this agreement the complainant/purchaser was going to purchase the 400 sq. ft. flat on the ground floor out of the developer’s allocation at the premises at 51, Banerjee Para Road, Sarsuna, Kolkata – 700 061, for a consideration of Rs.7,00,000/-.  The owner of this premises was Sri Somnath Mondal and her wife Smt. Anima Mondal who purchased this premises from Imarat Silpa Sramik Union Gosthi through the Deed of Sale on 18/01/2012 being registration number 00437of ADSR, Behala.  Thereafter the owners executed a registered Development Agreement with M/s, M. B. Construction together with a Power of Attorney in favour of the Developer, the O. P. herein above, on 27/01/2016 for construction of a three storied building thereon.  Thereafter the Agreement for Sale was executed by the purchaser/ complainant with the Developer/O. P. to purchase the ground floor flat for a consideration of Rs.7,00,000/- and complainant paid Rs.4,00,000/- on different dates before this agreement was executed. It was decided, as per Clause – 5, page – 9, that the subject flat will be handed over to the purchaser/complainant within 12 months from the date of this agreement subject to the realisation of the full consideration. It was also decided, in Clause – 1(i), page 8, that the purchaser would pay the balance amount within three months from date of this agreement.  In the second Agreement for Sale dated 15/05/2017 all the terms and conditions are almost the same as that of the first one.  According to this agreement the purchaser/complainant was intending to purchase a 700 sq. ft. flat on the second floor for a consideration of Rs.10,50,000/- and he paid Rs.2,00,000/- to the Developer/O. P. before executing this agreement.  An interesting point is noted by us that the Purchaser/Complainant has not put his signature in this notarised Agreement for Sale dated 15/05/2017.  Another point is to be noted here that in Page – 6 of this agreement area of the flat is written by hand writing as 425 sq. ft. whereas in the Schedule B of this agreement, in Page – 16, it is typed as 700 sq. ft.

            Let us now take into account the payments made by the purchaser/complainant to the Developer/O. P. on different dates. Complainant has not filed any receipts in support of his payments. In the Memo of consideration attached with the Agreement for Sale dated 17/03/2017 payment of Rs.4,00,000/-  has been acknowledged wherein Rs. 2,50,000/- has been paid through cheques and Rs.1,50,000/- has been paid in cash.  In the Memo of consideration attached with the second Agreement for Sale dated 15/05/2017 payment of Rs.2,00,000/- has been acknowledged of which Rs.1,00,000/- has been paid through cheque and Rs.1,00,000/- has been paid in cash.  Thereafter, on this Memo of Consideration hand written statement of payments in different dates is made and seems to be signed by the O. P. / Developer.  Here, we see that a sum of Rs.1,50,000/- has been paid in cash which seemed to be received by the O. P. and the rest amount, i.e. Rs. 9,00,000/- has been paid through different cheques.  So in total Rs.11,50,000/- has been paid through cheques and Rs.3,00,000/- paid in cash for the two flats.  Statement of Bank Account supports payments of Rs.11,00,000/- and these payments were made from 03/03/2017 up to 17/10/2017.  According to the statement of the complaint supported by the handwritten payment receipts written on the page of Memo of Considerations complainant/purchaser has paid the entire consideration of Rs.10,50,000/- to the O. P./Developer for his 700 sq. ft. flat and paid Rs.4,00,000/- for his 400 sq. ft. flat totalling Rs.14,50,000/-.  Now, according to Clause – 10 of both the agreement the O. P. was bound to hand over copy of documents relating to the scheduled property where the building was to be constructed.  But the O. P. could to supply these documents and when the complainant found that the progress of construction had been stopped he refused to pay the balance consideration of Rs.3,00,000/-.  Thereafter O. P. abandoned the project and left his residence at 315/2, K. K. Roy Chowdhury Road.  After a long period of time complainant found in March, 2020 that the O. P. was then residing at 1/70, 42 Feet Road, 1 No, Mukundapur Colony and requested him to refund his money as the O. P. abandoned the project.  O. P. then handed over relating to a plot of land on which, O. P. assured, complainant would get a flat at a consideration of Rs.14,50,000/- which the complainant already paid.  But this time also no further development has been noticed by the complainant for which he sent a legal notice through his Ld. Advocate on 25/06/2020 demanding refund of his money.  This notice has not yielded any result. He made a complaint U/S. 420 & 406 of IPC before the Sarsuna P. S. on 02/08/2020 which also yielded no fruitful result.  Ultimately he filed this instant complaint on 02/11/2020.  Here we have noted that the first address of the O. P. as written in Clause Title of the complaint is 315/2, K. K. Roy Chowdhury Road, P. S. – Thakurpukur Road, Kolkata – 700 008,  but both in the Agreement for Sale the address of the company, M/s. M. B. Construction, is written as 31E/2, K. K. Roy Chowdhury Road, P, O, Barisha, P. S. – Thakurpukur, Kolkata – 700 008 and the residencial address of its proprietor, i. e. Sri Bikash Patra, the O. P. herein above, is written as E-3, Adrija Apartment, 9/3, Chandi Charan Ghosh Road, P, O, Barisha, P. S. – Thakurpukur, Kolkata – 700 008.  Complainant has not added these two addresses in his complaint petition.

            However, setting aside these discrepancies, the O. P./Developer failed to comply with his promised services to the Purchaser/Complainant who hired his serice of ‘Housing Construction’ for his better residential accommodation thereby causing ‘Deficiency in service’ as defined in the Act for which the Complainant/Purchaser is entitled to get relief.  As the O. P. has not completed his project, so the O. P. must refund the entire sum of Rs.14,50,000/- to the Complainant together with an interest @10% p. a. as a compensation with effect from the date of, for the sake of simplicity, last payment made by the Complainant.  The Complainant is entitled to get Rs.8,000/- from the O. P. as litigation cost as he is compelled to reach at the door of this Commission to get his grievance be redressed.

Hence,

            it is

            ORDERED

             That the Complaint Case No. CC/271/2020 is allowed ex parte.

            The Opposite Party is directed to refund Rs.14,50,000/- together with simple interest at the rate of 10% per annum with effect from the date of last payment made by the Complainant up to the date of this order within 60 days from the date of this order.  The O. P. is also directed to pay Rs.8,000/- to the Complaint within the aforesaid period, failing which the entire sum shall carry 12% interest per annum till full and final realisation.