MR. SHYAMAL KUMAR GHOSH, MEMBER

1. The instant  consumer case has been filed by the Complainant against the Opposite  Parties praying for  refund  the sum of Rs. 6,18,300/- alongwith interest , compensation, cost , etc.  which are elaborately  mentioned in the prayer portion of the instant CC case.
2. To sum up the matter it is revealed that the complainant  is an intended purchaser  and  the OPs No. 1  & 2  both  are developers for construction of the building consisting of  several residential flats. OPs No. 3 & 4 both are owner of the bastu land measuring more or less 4 cottah  together with single storied pucca building situated at Diamond Harbour Road , Ward No. 124, Kolkata-700063.
3. The land owners/OPs No. 3 & 4 both have entered into an agreement for development-cum-power of attorney dated 14.03.2013 with the OP No.1/developer.
4. The total consideration of the flat in question has been fixed for Rs. 29,00,000/-  and out of total consideration amount the complainant has paid Rs.  6,18,300/- to the OP No. 1/developer.  The complainant has intended to take a loan from the State Bank of India, Taratala Branch.  The relevant documents and papers for the said purpose  has been submitted before the concerned Bank.  But the prayer for loan has been rejected due to some defects in the title of the property.
5. The complainant thereafter became extremely anxious and worried about the sum of Rs. 6,18,300/- which has already been paid to the OP No. 1/developer. Having no other alternative  the complainant has sent a legal notice dated 15.09.2017  to the OP No. 1 praying for refund of consideration amount of Rs. 6,18,300/-  failing which legal action would be taken against him.  But the said notice  has been returned with postal remark ‘not claimed’.   The complainant thereafter has realised that the OP No. 1/developer had no intention to cure the defect  of the title of the property  and to refund the consideration amount of Rs. 6,18,300/- to the complainant.  The OP No. 1 /developer has adopted unfair trade practice causing gross negligence  and deficiency in service  on the part of the OPs/developer.
6. Having no other alternative the complainant has instituted the instant consumer case against the OPs for getting relief/reliefs as prayed for. 
7. OPs No. 1 & 2 contested this case by filing written version stating inter alia that  the answering OPs intended to refund the advance amount only but subject to reselling the said flat to a third party. It is  a good gesture on the part of the OPs on the point that the OPs/developers intended to refund the advance money to the complainant. By filing the instant written version  the OPs have submitted that  the subject property is a recorded property within the Kolkata Municipal Corporation  which is  free from  all encumbrances.The complainant has not come before this Commission with  clean hands . The complainant has misrepresented and concealed the actual material of facts with an ulterior motive in order to gain financially.  There is no fault or negligence on the part of the OPs/developer and accordingly the OPs/developers have prayed for dismissal of the instant consumer case with exemplary costs.
8. Order No. 4 dated 10.01.2019 clearly reveals that  no written version  has been filed on behalf of the OPs No. 3 & 4.  Therefore,  the case has been fixed for exparte hearing against the OPs No. 3 & 4/landowners.
9. At the time of final hearing, the Ld. Advocate appearing for the complainant  has argued that OP No. 1/developer has declared to sell of a self contained residential flat on the 3^rd floor  North-East side measuring about 950 sq.ft. super built up area from the developer’s allocation which is clearly mentioned in the development agreement dated 14.03.2013 at a total consideration of Rs. 34,00,000/-.  The complainant being an intended purchaser was interested party to purchase the aforesaid flat and entered into an agreement for sale dated 20.03.2017.  OPs No. 3 & 4 being the landowners  have already entrusted all rights and responsibilities upon the OPs  /developers regarding development of the schedule property  by way of constituted attorney.  Ld. Advocate has further submitted that   the complainant has already paid  Rs. 6,18,300/- to the OP No. 1/developer. Thereafter, the complainant has approached before the State Bank of India to obtain a loan. But upon careful perusal of the relevant documents and papers the concerned Bank has refused to sanction loan in favour of the complainant on the ground of dispute regarding title of the property.  Thereafter, the complainant has prayed for refund of the consideration amount  and to that effect one legal notice has been sent to the OP No. 1/developer.  But it is very unfortunate that the OP No. 1/developer  has failed to make refund the consideration amount of Rs.f6,18,300/- to the complainant.  There is a clear gross negligence and deficiency in service on the part of OPs /developer and accordingly the Ld. Advocate has prayed for refund of consideration amount  alongwith interest, cost, compensation ,etc.
10. I have heard the Ld.  Advocate appearing for the complainant  at length and in full.
11. I have carefully perused all materials available on the record.
12. I have considered the submissions of Ld. Advocate.
13. Final hearing has been concluded.
14. It is admitted that  the agreement for sale dated 20.03.2017 has been executed by and between the  developer /OP No. 1,complainant and the landowners/OPs No. 3 & 4 wherefrom it appears to me that the developer has declared to sell a self contained residential flat on the 3^rd floor , North East side measuring  about 950 sq.ft. super built up area  from the developer’s allocation  as mentioned  in the development agreement dated 14.03.2013at a consideration amount of Rs. 29,00,000/-.
15. I have carefully perused the memo of consideration of the aforesaid agreement at the page no. 33 wherefrom it appears to me that  the OP No. 1 /developer has received a sum of Rs. 5,80,000/- from the end of the complainant and to that effect an acknowledgement  has been reflected in the aforesaid instrument.
16. It appears from the statement of account  issued by HDFC Bank Ltd. that on 06.05.2017 Rs. 10,000/- has been paid  to Mr. Dipak Sharma /OP No. 2 herein and to that effect  the complainant submitted a statement of account from 01.05.2017 to 31.05.2017 in order to corroborate the allegation  against the  OPs /developers.   It is further perused that on  02.03.2017 , the amount  of Rs. 20,000/- has also been paid  by way of cheque issued in favour of  Ganpati Builder  and to that effect the bank statement has been filed. The statement of account also reveals that on 24.03.2017, the complainant has further paid Rs. 8,300/-  in respect of  aforesaid flat in question.
17. To sum up the matter, it is crystal clear that the complainant has already paid Rs. 5,80,000.00+ Rs. 10,000.00 + Rs. 20,000.00  + Rs. 8,300.00 =   Rs.6,18,300.00 to the OP No. 1/developer.
18. I have carefully perused the Annexure-B wherefrom  it appears to me that the Porcha(ROR)  issued by the BL&LRO  produced by the developer  is not in a order  and after scrutiny of all documents regarding aforesaid flat in question causes some deficiencies  and in this respect  a letter dated 02.06.2017 has been  written by Shri  Samrat Dutta, Ld. Advocate  addressed to the Assistant General Manager, State Bank of India, Behala Branch.
19.  In pursuant to the above facts and circumstances, when the title of the property suffers from defect, it is very practical at the behest of the complainant    to get the refund amounting to Rs. 6,18,300/- from the end of the OP No.1/developer.  It is admitted that on several occasions the complainant has made representations to the OP No. 1/developer  with a request for refund of aforesaid amount but it is very unfortunate  that the OP No. 1/developer has failed to make a refund to the complainant till date causing gross negligence and  deficiency in service on the part of the  developers.
20. In written version, the OPs No. 1 & 2  have taken a plea  that the aforesaid flat in question are still unsold, although they are  agreed to refund the advance money on good gesture but the complainant has refused to take the same. In support of this plea, the OPs No. 1 & 2  have not filed any relevant documents and papers. Moreover,  in written version the OPs No. 1 & 2  have taken the plea  that the property in question is recorded  within  KMC  but to that effect  no relevant documents have been filed.  So,  at this relevant stage , I am not in a position to shake the hand with the OPs/developers.
21. Being social beneficial legislation the Consumer Protection Act has been enacted exclusively for  the benefit of the Consumers and  upon considering the aforesaid event  I can safely hold that the order of refund should be passed  in order to meet the proper justice to the Consumer/complainant.  In this respect, I can safely rely upon  the following citations  which are as under:

1. Sanjoy Kr. Gupta   vs   Kebal Krishan Baran and Ors. Reported  in 2014(3) CPR 286 (NC) wherein  Hon’ble National Commission has been pleased to hold that  Consumer Forum is primarily meant to provide  protection to consumers  and their claims  cannot be defeated on technical grounds.
2. In REAR ADMIRAL(RETD) KIRPAL SINGH VS M/S UNITECH LIMITED REPORTED IN 2018(30 CPR 767(NC) wherein the Hon’ble NCDRC has also been pleased to decide that when the terms of the contract are not adhered to, builder is liable to refund  the amount paid with interest  and costs.
3. Hon’ble National Commission, in  NEENA Mehrotra and Anr.   VS M/S Unitech Limited, reported in 2017(3) CPR 376(NC) wherein Hon’ble NCDRC has been pleased to hold that in absence of any cogent  explanation for failure to comply with stipulation  of delivery of possession, opposite party has committed deficiency in service as also has indulged in unfair trade practice.  When the OPs are not in a position to offer the possession of the apartment , the said opposite party/company shall refund the amount with simple interest without any further liability and the allottee cannot be  expected to wait for possession of the aforesaid apartment for indefinite period of time.

22. Keeping in view of the above observations,  I am constrained to hold  that there is a clear gross negligence and deficiency in service on the part of OPs  No. 1 & 2/developers .   No order should be passed against the OPs No.  3 & 4/landowners  as they have already entrusted all rights upon the OP No. 1 /developer  by virtue of General Power of Attorney.
23. The instant consumer case is thus allowed against the OPs No. 1 & 2 /developers  on contest with cost and  dismissed    exparte against the OPs  No. 3 & 4 /landowners without any order as to cost.

Hence,

It is ,

                                                   ORDERED

That  the OPs No. 1 & 2 /developers both are directed to make the refund  amounting to Rs. 6,18,300/- (Rupees six lakh eighteen thousand three hundred) only   to the complainant with 60(sixty) days from the date of passing of this order alongwith simple interest @ 9% p.a. from the date of each payment in the form of compensation till full realisation.

That the OPs No. 1 & 2 /developers both are further directed to pay litigation cost of Rs. 20,000/- ( Rupees twenty thousand ) only to the complainant within the aforesaid period of time , in default, the said amount shall carry interest @ 9% p.a.  from the date of default till full realisation.

In case of  non compliance of the order by the OPs No. 1 & 2/developers, the complainant is at liberty  to put the order in execution.

Thus the consumer case stands disposed of as per above observations.

Note accordingly.