Samaresh Kumar Mitra,  Presiding Member.

            This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that the Complainants were in search of a suitable accommodation and being allured with the lucrative advertisement regarding raising of the multi-storied building and to dispose of the same to the intending purchasers, the Complainants entered into an agreement dated 28/04/2016 with the Opposite Party for purchasing the schedule mentioned flat in consideration of Rs.13,50,000/- and out of which at the time of entering into the agreement the Complainants paid a sum of Rs. 1,70,000/- and thereafter the Complainants paid further amount in favor of the Opposite Party on several installments and thereby paid a total amount of Rs. 2,70,000/- on different dates and to that effect the Opposite Party has issued money receipts to that effect and the Complainants also state that the said agreement it has been specifically stipulated that the Opposite Party would hand over the schedule flat in favor of the Complainants within 2(Two) years thereof but uptil now the Opposite Party has failed to raise any construction over the land where the construction would be raised and the Complainants also state that the Opposite Party failed and neglected any such construction over the case property, the Complainants were compelled to sent one notice dated 21/01/2018 to the Opposite Party requesting the Opposite Party to refund the money i.e. Rs. 2,70,000/- as the Opposite Party has failed to raise any construction over the case property and the Opposite Party received the said notice by putting his signature on the said letter.

            The Complainants also state that after receiving the said notice the Opposite Party to raise construction over the case property as well as to handover the possession of the flat in favor of the Complainants and the Complainants then asked the Opposite Party to give Complainants a subsequent agreement with details of service or the articles and materials would be given in connection with the said flat and accordingly the Opposite Party gave another agreement but the terms and conditions as mentioned in the earlier agreement dated 28/04/2016 remained the same and the Complainants also state that even after making promise the Opposite Party did not start any sorts of construction over the case property and as such the Complainants were compelled to make a complaint at the Serampore Police Station and accordingly on call on 20/04/2018 the Opposite Party  under his handwriting gave one undertaking to the I.C. Serampore P.S. admitting receipt of Rs.2,70,000/- and further made promise to return the money by 6 (Six) months or to deliver the flat in favor of the Complainants and the Complainants also state that during the tenure of the first agreement dated 28/04/2016 the Opposite Party has given two Cheques  in favor of the Complainants disclosing his inability to raise construction over the case property but both the Cheques were dishonoured due to insufficient fund in the account of the Opposite Party and the Complainants also state that by virtue of the agreement the Opposite Party have bound himself to give specific service including specific construction to the Complainants and took money but subsequently the Opposite Party has failed and neglected to fulfill his service and thereby caused deficiency in service and furthermore since execution of the agreement the Opposite Party  have failed to complete the construction even a part thereof and thereby the Opposite Party have made illegal trade practice with the Complainants compelling to suffer mental agony, anxiety and harassment.

            Complainants also state that thereafter the Complainants sent a legal notice dated 16/05/2018 through their Ld. Advocate and in spite of receiving the same the Opposite Party did not turn up and did not take any initiative for completion of the flat and as such the Complainants have been compelled to file this complaint for redress and the cause of action of the instant case arose on 28/04/2016 when the parties to this case entered into an agreement for purchasing a flat on the case property and lastly on 16/05/2018 when the Complainants were compelled to sent legal notice to the Opposite Party.  

            Complainant filed the complaint petition praying directions upon the opposite party to complete the schedule mentioned flat and deliver possession of the same in favor of the Complainants or in default refund the entire amount of Rs.2,70,000/- along with interest @ 18% p.a. accrued thereof in favor of the Complainants  and to pass an order directing the Opposite party to pay a sum of Rs. 5,00,000/- towards compensation for causing several pain, agony, anxiety and harassment and to pay a sum of Rs. 20,000/- towards litigation cost in favor of the Complainants and to pay all costs of the case and to pay pass an order such other reliefs to which the Complainants are entitled under the law and equity.

            The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainants in the complaint petition.

            Complainants filed written notes of argument. The evidence on affidavit and written notes of argument of complainants are taken into consideration for passing final order.

            Argument as advanced by the agent of the complainants heard in full.

            From the discussion herein above, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer of the opposite party or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite party?
4. Whether the complainant is entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken together for easiness of the discussions of this case.

1. In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant herein are consumers of the opposite party.
2. Both the complainants and the opposite party are residents/having their office address within the district of Hooghly. For mental agony and other expenses which is within Rs. 20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3. The case of the complainants is that they entered into an agreement dt. 28.04.2016 with the opposite party for purchasing the flat in consideration value of Rs. 13,50,000/- out of which the complainants paid a sum of Rs.1,70,000/- during the period of agreement and thereafter paid further amount on installments. Complainants paid in total a sum of Rs.2,70,000/- on different dates  and opposite party issued money receipts to that effect. As per agreement the opposite party was under liability to handover the schedule flat in favour of the complainants within two years thereof, but the opposite party failed to raise construction over the schedule mentioned property. So, the complainant sent notice dt. 21.01.2018 requesting to refund the money Rs. 2,70,000/-. But after receiving the said notice the opposite parry promised to raise construction over the said land as well as to hand over the possession of the flat in favour of the complainants and then the complainants asked the opposite party to execute a subsequent agreement with details of service or the articles and materials would be given with the said flat and accordingly opposite party executed another agreement dt. 28.04.2016 mentioning the terms and conditions of the agreement like earlier. Inspite of making promise the opposite party did not start any sorts of constriction over the case property as such the complainants were compelled to make a complaint at the Serampore P.S. and accordingly the opposite party gave an undertaking to the IC Serampore, P.S. admitting receipt of Rs. 2,70,000/- and further made promise to return the money by six months or to deliver the flat in favour of the complainants. It is pertinent to mention that during the tenure of first agreement dt. 28.04.2016 the opposite party has given two cheques in favour of the complainants disclosing his inability to raise construction over the case property but both the cheques were dishonoured due to insufficient fund. According to the agreement the opposite party is bound to give specific service including specific construction to the complainants and took money but subsequently the opposite party has failed and neglected to fulfill his service and thereby caused deficiency in service and further more since execution of the agreement the opposite party failed to complete the construction even a part thereof. The opposite party made illegal trade practice with the complainants compelling them to suffer mental agony, anxiety and harassment. The complainant sent a legal notice dt. 16.05.2018 through their ld. Advocate and inspite of receiving the same the opposite party did not turn up and did not take any initiative for completion of the flat and as such the complainants compelled to file the instant case before this Forum.

            It appears from the agreement dt. 28.04.2016 the complainants being purchaser of schedule mentioned flat entered into an agreement with one Suraj Pitty of 296/2 RK Road, Chatra, Serampore, Hooghly. The complainants being purchaser agreed to buy a 1.5 BHK of 550 sq.ft at proposed building constructed and developed by opposite party with a consideration of Rs.13,50,000/-. The agreement also depicts that the complainants paid a sum of Rs.1,70,000/- on the date of agreement as advance for booking the said flat. The agreement also mentioned that the hand over time is maximum 1 year from the date of registered agreement for sale.

            It is transparent from the agreement dt.2.5.2018 the complainants being purchaser of schedule mentioned flat entered into an agreement with one Suraj Pitty of 296/2 RK Road, Chatra, Serampore, Hooghly. The complainants being purchaser agreed to buy a 1.5 BHK of 550 sq.ft at proposed building constructed and developed by opposite party with a consideration of Rs. 13,50,000/-. The agreement also depicts that the complainants paid a sum of Rs.2,70,000/- on different dates starting from 28.01.2016 to 4.08.2017 to the opposite party and the opposite party admitted the same by putting his signature thereon and the balance amount of Rs.10,80,000/- agreed to pay in accordance with the  payment schedule of the agreement.

            The letter dt. 16.05.2018 to opposite party speaks the contention of the complainants in their complaint petition and asking the opposite party to complete the schedule mentioned flat and deliver possession of the same in favour of the complainants within 1 months or in default to refund the entire amount of Rs. 2,70,000/- along with interest thereof otherwise the complainant have no other alternative except taking the recourse of law.

            The photocopy of letter dt.20.05.2018 to Serampore P.S. speaks that the opposite party admitted regarding the receipt of Rs.2,70,000/- from the complainants and prayed 180 days time from that day to give her the said flat in default he will return the money received from the complainants.

            The complainants filed the photocopies of payment voucher. They also filed the photocopy of saving bank details from which it is transparent that complainants paid advance money to the opposite party on different dates through NEFT and cheques.

            After hearing the Ld. Advocate of the complainants and perusing the case record it appears that the complainants paid a sum of Rs.2,70,000/- to the opposite party for getting the flat-in-question proposed to be constructed by the opposite party developer. The developer received the impugned amount from the complainants and issued receipts on that context and it is crystal clear from the case record that the opposite party failed to hand over the flat-in-question to the complainants within the stipulated time and after the stipulated period the opposite party undertook before the Serampore P.S. to hand over the flat-n-question within 6 months and in default he is liable to pay the advance money taken from the complainants. The complainants tried their best to get back the advance money from the opposite party as the opposite party failed to construct the flat as per agreement. Inspite of several requests from the complainants the opposite party failed to refund the advance amount of Rs. 2,70,000/- to these complainants. So, the complainants getting no alternative preferred the recourse of this Forum by filing the instant case praying directions as incorporated in the prayer portion of the complaint petition. The complaint petition is unchallenged one.

            Despite receiving notice opposite party did not turn up and failed to file written version. So, the instant proceedings run ex parte against him.

            The act and attitude of the opposite party clearly speaks that he is deficient in providing service to the complainants as the complainants being the intending purchaser of the flat proposed to be constructed by the opposite party. The complainants being the consumer of the opposite party filed the instant complaint before appropriate Forum. The case record and documents reveals that the complainants tried their best to get the flat-in-question from the opposite party in default requested the opposite party to refund the advance money, but the opposite party remain silent at the utterance of the complainants. The complainants suffered at the behest of negligence and sheer of avoidance on the part of opposite party. So, the deficiency of the opposite party is well established as such the complaint petition deserved to be allowed with cost and compensation.

            Going by the foregoing discussion hence it is ordered that the complainants abled to prove the deficiency of service of the opposite party for non delivery of the impugned flat &  failed to refund the advance money by adducing cogent document/evidence so the prayer of the complainants are allowed  ex-parte. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint petition is thus disposed of accordingly.

            The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants abled to prove the deficiency of service of the opposite party in respect of delivery of flat & in default refund the advance money.

ORDER

            Hence, it is ordered that the complaint case being no.146 of 2018 be and the same is allowed ex-parte against the opposite party with a litigation cost of Rs. 8,000/-.

            The opposite party is directed to refund the advance money of Rs.2,70,000/- including interest @ 10% from the date of receiving the same from i.e. 4.8.2017 till it realization within 45 days from the date of passing this final order.

At the event of failure to comply with the order the opposite party shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.