Ld Advocate for the complainant is present. Judgement is ready and pronounced in open Commission.

BY -   SRI.  SAURAV CHANDRA,  MEMBER

1. Brief facts of the Complaint case is that the Complainant is a Serviceman who on his urgent requirement agreed with the Opposite Parties to purchase a 1000 Sq.Ft. Super Built-up Area Complete Flat No.1/1 on the Ground Floor of Plot No.102, J.L No.196, Village: Brajanathchak, P.O. Haldia Township, P.S. Haldia, Sub-Division: Haldia, Dist. Purba Medinipur, West Bengal - 721605 along with Common Area and Other Facilities and Amenities in the undivided proportionate area of the said building at a total consideration of Rs.18,00,000.00 vide an Agreement for Sale executed by and between the parties on 6^th Day of March’ 2019 and duly notarized by Notary Public at Haldia.

2. As per the Terms & Conditions of the said Agreement in Clause No.4, the parties covenant to complete the Sale Transaction and to execute the absolute Sale Deed within 24 Months from the date of execution of this Agreement. Therefore, the due date for execution of Sale Deed is within 5^th Day of March’ 2021 but, the Ops deliberately and intentionally neither completed the said flat building, nor register the schedule flat in favour of the petitioner in-spite of several requests of the Complainant. Rather the Ops totally stopped the construction work and refuse to refund the money to the Complainant against his demand letter dated: 09.09.2021.

3. Out of the total consideration of Rs.18,00,000.00, the Complainant paid the amount as per the following modes and is also ready to pay the balance amount to take delivery of possession of the flat along with other facilities and amenities as per the specification:-

4. Owing to non-delivery of possession by the Ops, the Complainant is bound to reside in a rented house by paying rent @ Rs.5,000.00 per month.

5. The Complainant several times requested the Ops to take necessary steps to resolve the issue but, the Ops didn’t pay any heed.

6. Thereafter, the Petitioner preferred to file the instant case before this Commission.

7. The cause of action of this case arose on and from 05.03.2021 and 17.09.2021 respectively.

The Complainant, therefore, prays for directing the ops:-

1. To Execute the Sale Deed in favour of the Petitioner and make peaceful delivery the flat by the Op.
2. To Complete the Flat as well as Building as per Govt. Rules and Regulations and as per Terms & Conditions.
3. To Return Rs.8,00,000.00with Interest @ 8% p.a. to the Petitioner for harassment, mental pain, agony, loss and damages.
4. To Pay Damages @ Rs.5,000.00 per month till final delivery of possession, due to payment of rent of rented premises.
5. To pay Litigation Cost of Rs.50,000.00 to the Complainant for conducting the case.
6. Any other reliefs.

8. Notice was duly served upon the Ops but Ops have not filed any Written Version within the statutory period. However, Ops have filed Written Notes on Argument – (WNA).

9. Under the above circumstances, the Complainant has prayed for ex-parte order against the Ops. Hence, the case proceeded exparte against the Ops.

10. Points for determination are:

1. Is the case maintainable in its present form and in law?   
2. Is the Complainant entitled to the relief(s) as sought for?

11. Decision with reasons

1. Both the points I and II, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.

2. We have carefully perused the Petition of the Complainant evidence adduced along with all papers and other documents and WNA.

3. Having regards had to the facts and circumstances of the case in the light of evidence, it is evident that there is no dispute that Complainant is a consumer having grievances against the Ops, as such the case is maintainable in its present form and in law.

4. There is no dispute that the complainant paid Rs.8,00,000.00 out of total consideration of Rs.18,00,000.00.

5. It appears that it has been contented by ops that the Petitioner has not paid the amount as per the Terms & Conditions of the Agreement though he constructed the major portions of the flat. Due to non-payment of the installment amount by the Complainant, the construction work has delayed by the Op No.1. Moreover, the COVID-19 pandemic situation for the year 2020 and 2021 is also another cause of such delay by the Op No.1

6. Ops are the Builder of the scheduled Property. It is the duty of every Builder to peacefully deliver the complete scheduled property(as per the terms and conditions) to its’ valued customer with full satisfaction within the stipulated time and obviously with the Completion Certificate.

7. In the present case, from the testimony of complainant it appears that Ops did not complete the construction works fully in the said property within the stipulated time. From the materials on record it is observed that the Ops has received the following payments in its’ bank account as per the Terms & Conditions Clauses of Agreement for Sale :-

Clause 3(i) – Booking Advance of Rs.2,00,000.00 on 16.01.2019 during execution of Agreement.

                 Observation: Duly paid by the Complainant to the Ops within time.

Clause 3(ii) – 15% of Total value of flat, less booking advance, within three weeks from the date of Execution of Agreement.

Observation: That means Rs.70,000.00 payable by the Complainant to the Ops within January’2019but, actually the Complainant paid Rs.50,000.00 on 07.03.2019.

Clause 3(iii) – 30% of Total value of flat will be made within 15 days at the time of Foundation Work.

Observation: That means Rs.5,40,000.00 within 15 days of foundation work but, in the record we do not found any official communication for such Foundation Work by which the actual demand due date can be determined. On 31.03.2019, the Complainant paid Rs.1,50,000.00 and Rs.50,000.00 respectively.

Clause 3(iv) – 20% of Total value of flat will be made within 15 days at the time of tie Beam Work of the building.

Observation: That means Rs.3,60,000.00 within 15 days at the time of beam work of the building but, in the record we do not found any official communication for such Beam Work of the building by which the actual demand due date can be determined. On 02.06.2019, the Complainant paid Rs.1,00,000.00 and Rs.2,50,000.00 respectively.

Clause 3(v) – 20% of Total value of flat will be made within 15 days at the time of Roof Work of the building.

Observation: That means Rs.3,60,000.00 within 15 days at the time of Roof Work of the building but, in the record we do not found any official communication for such Roof Work of the building by which the actual demand due date can be determined. Also no payment after 02.06.2019 (as stated above) by the Complainant to the Ops has been seen in the submitted records.

Clause 3(vi) – 15% of Total value of flat will be made within 15 days for carrying out flooring, paris/putty work etc. and the rest amount of total consideration value of the said unit will be paid by the purchaser to vendor one month before of the absolute Sale Deed and thus completing the Sale transaction.

Observation: That means Rs.2,70,000.00 within 15 days for carrying out flooring, parries/putty work etc. with rest amount of the total consideration value (if any) before one month of Sale Deed. But, in that case also we do not found any official communication in the record for such carrying out flooring, parries/putty work etc. by which the actual demand due date can be determined. Also no payment after 02.06.2019 (as stated above) by the Complainant to the Ops has been seen in the submitted records.

8. Now, coming to the matter of reliefs. The Ops can’t get absolved from the mischief of deficiency in service. Although it is genuine fact that due to COVID-19, the construction works has been delayed and if we take into consideration the point from the WNA that due to delay payment of installments as well as non-payment of balance amount by the Complainant, Ops failed to complete the construction work. Therefore, it is also the duty of the Ops to refund back the entire invested money to the Complainant with deduction of a certain legitimate percentage towards cancellation charges but, instead of doing so, the Ops refuses to pay any amount in-spite of a claim lodged by the Complainant on 09.09.2021.  

1. So, we think that it would be just and proper, if we direct the Ops to refund the entire amount of Rs.8,00,000.00 (Rupees Eight Lakh Only) in total to the Complainant within 45 days from the date of this order along with Compensation in form of simple Interest @9% per annum from the date of filing of this case in addition to the said amount the Ops will be liable to pay litigation cost of Rs.2,000.00 within the said period.

10. Both the points are decided accordingly.

11. Thus, the Complaint case partly succeeds.

Hence, it is

          O R D E R E D

That the CC-123 of 2021 be and the same is allowed ex-parte against the Ops.

The Ops, who are jointly and severally liable, are directed to refund the entire amount i.e. Rs.8,00,000.00 (Rupees Eight Lakh Only) to the Complainant within 45 Days from the date of this order along with Compensation in form of simple Interest @ 9% per annum from the date of filing of this case in addition to the said amount the Ops will be liable to pay litigation cost of Rs.2,000.00 within the said period.

The Complainant will be at liberty to put this order into execution.

Let a copy of this judgment be provided to the parties free of costs.

The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

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