SAMIKSHA BHATTACHARYA, MEMBER
The instant complaint has been filed by the complainants under section 17(1)(a)(i) of the C.P. Act, 1986 against the OP alleging deficiency in service.
Facts of the case in brief are that the complainants, due to need of a residential flat, visited the office of OP and they wanted to know about the arrangement of booking of flat and the value of the flat along with the mode of payment. After prolonged discussion, the complainants intended to purchase a flat measuring about 728 sq. ft. @ Rs.2094/- per sq. ft. for a total consideration of Rs.17,24,432/- which would be developed by the OP. Accordingly, both the complainants applied for provisional allotment of the flat in King Town situated at Vill- Jiragachha, P.O.- Hatishala, P.S.- Kashipur, Dist- 24 Parganas, Kolkata – 700135. The complainants paid a sum of Rs.2,39,000/- as application amount/earnest money towards provisional allotment of the said flat on 31.03.2017 and thereafter, complainants paid on different dates and ultimately the complainants paid Rs.4,65,688/-. As per terms and conditions of the application form for provisional allotment of the flat dated 31.03.2017, it has been specifically mentioned that the developer/OP will make full endeavour to provide possession by 40 months but actually no step was taken for construction by the OP. On the other hand, due to financial need for medical treatment at Manipal Hospital, Bengaluru, one of the complainants wrote a letter to the OP dated 11.03.2019 for cancellation of booking and for withdrawal of deposited amount to the tune of Rs.4,65,688/-. Thereafter, as per advice of the OP, the complainants contacted with Mr. Ranjan Panda, but none took any responsibility in respect of refund as per terms and conditions given by the OP. On 31.07.2019 the complainants sent an Advocate’s letter to the OP with request for refund of deposited amount. The complainants took several attempts and the OP gave assurance that they would make the refund through NEFT in the bank account of the complainants. But till date OP did not make any payment. Therefore, the complainants have stated in their petition that there is gross negligence on the part of OP. Hence, the application praying for direction upon the OP to make payment of deposited amount of Rs.4,65,688/- along with compensation of Rs.5,00,000/- for mental, physical and economical harassment and litigation cost of Rs.20,000/-.
Though the notice was served upon the OP, none appeared on behalf of OP to contest the case by filing written version. Hence, the case was proceeded ex-parte against the sole OP.
In course of argument Ld. Advocate for the complainants has submitted that photocopy of all the money receipts have been annexed with the petition of complaint. The payment was made through cheques and the photocopy of the cheques have been annexed too. Due to treatment of the second applicant, the complainants have decided to cancel the booking and to that effect the complainants made a declaration to the General Manager of the OP on 21.05.2019. The OPs also informed the complainants that they would make the refund payment part by part through NEFT in the bank account of the complainants. The Ld. Advocate has also submitted that the project has not been started yet and the OP has admitted to refund of Rs.5,91,822/-. Therefore, the complainants are entitled to refund of Rs.5,91,822/-. Hence, he has prayed for direction upon OP to make refund to the complainants.
Upon hearing the Ld. Advocate for the complainants and on perusal of the entire materials on record, it appears to us that on 31.03.2017, the complainants have paid Rs.2,38,000/- as application amount/earnest money towards provisional allotment of a flat in King Town situated at Vill- Jiragachha, P.O.- Hatishala, P.S.- Kashipur, Dist- 24 Parganas, Kolkata – 700135 as per tentative location plan. From the documents, it appears that the complainants were allotted with a 3BHK flat on 4th floor in Tower A-2 (South-West) measuring an area of 728 sq. ft. It appears from the Clause-10 of the terms and conditions, the developer will make full endeavour to provide possession by 40 months from the date of execution of the Agreement subject to Force Majeure Clause. The complainants have paid Rs.20,000/- through cheque being No. 000017 dated 31.03.2017, Rs. 2,19,000/- through cheque being No. 000018 dated 17.04.2017, Rs.1,50,000/- through cheque being No. 000023 dated 30.10.2017 and Rs.76,688/- through cheque being No. 000024 dated 06.12.2017 all drawn on Bank of Baroda. The OP has issued receipt vouchers to that effect. Thereafter, the complainants sent a letter on 21.05.2019 that they have wanted to withdraw their booking due to emergency medical treatment of complainant no.2 at Manipal Hospital, Bengaluru. Then the OP sent the letter to the complainant no.1 that they would make refund through NEFT within March-2020 in the complainants’ scheduled bank account as provided by the complainants. Thereafter, the complainants sent several mails praying for refund of payment made by them. In response to complainants’ email, OP sent an email dated 15.10.2019 informing the complainant no.1 that they would refund Rs.50,000/- by November-2019, Rs.91,822/- by December-2019, Rs.50,000/- by January-2020, Rs.1,50,000/- by Feburuary-2020 and Rs.2,50,000/- by March-2020. The OP has also requested the complainants to get in touch with their representative over phone and the two mobile numbers of the representative have been mentioned in the email.
In view of the email correspondence between the parties, it is admitted position that complainants have paid Rs.4,65,688/-. From the email correspondence, it is clear that OP has agreed to refund Rs.5,91,822/-. The complainants have wanted to withdraw their booking for the reason of treatment of complainant no.2 at Manipal Hostipal at Bengaluru but no document in support of treatment or any medical advice has been annexed in support of their contention. As per refund schedule given by the OP, the first payment would be within November-2019, second payment by December-2019, third payment by January-2020, fourth payment by Feburary-2020 and fifth payment by March-2020. But the complainants sent the legal notice to the OP on 31.07.2019. In reply to the advocate notice, the OP also sent declaration form and assured that they have bona fide intention to repay the refund amount at the earliest. The OP also sought for humble cooperation in the matter otherwise they would face irreparable loss and injury. Thereafter, the OP sent the refund schedule starting from November 2019 till March 2020. But, the complainants without waiting, after default of first payment, schedule only filed the instant complaint before this Commission on 18.12.2019. Now the question is though the OP has informed that they would refund Rs.5,91,822/- but in the instant case, whether the complainants are entitled to get refund of Rs.5,91,822/- or Rs.4,65,688/- as prayed in the petition of complaint before this Commission. As per terms and conditions, the developer would provide the possession by 40 months from the date of execution of agreement subject to Force Majeure clause. On the other hand, in the event of cancellation or withdrawal of application(s) by the purchaser after the execution of Sale Agreement, the purchaser(s) will be liable to pay charge @ 15% p.a. received by the developer (Clause No.15). As per Clause No.14, in the event of cancellation or withdrawal of application(s) by the purchaser(s) before the execution of Sale Agreement, the purchaser(s) will be liable to pay charge @ 30% p.a. received by the developer. In the case in hand, the complainants wanted to withdraw their booking before execution of Agreement for the reason of treatment of complainant no.1, though no document has been annexed in support of treatment. The complainants have not waited till March-2020 as per refund schedule given by OP. It is good gesture of the OP that in spite of cancellation of booking before execution of Sale Agreement, the OP has wanted to refund Rs.5,91,822/- which is Rs.1,26,134/- more than the deposited amount by the complainants. But the complainants have not waited till March-2020 and filed the instant case on 18.12.2019. On 31.03.2017, the complainants applied for provisional Allotment of the flat in question. Possession would be delivered by the OPs within 40 months after the execution of Agreement for Sale. But the complainants have not insisted for entering into an Agreement for Sale, rather, after 25/26 months from the date of application they wanted to cancel the booking and as per refund Schedule of would refund the amount with interest in installments starting from November 2019 to March 2020. Therefore, the instant case is premature one. Though as per general terms and conditions, OP is in a position to deduct 30% of the deposited amount as per Clause No.14 of General Terms and Conditions, we are of the view that the complainants would at least get refund of Rs.4,65,688/- since they have paid the amount in the year 2017 and OP was agreed to refund Rs.5,91,822/-. The complainants have wanted to cancel their booking on their own will and it is not apparent for any document that OP has not performed their duty. Therefore, we find no apparent unfair trade practice on the OP. Therefore, we are not inclined to pass any order towards compensation. Since the CP Act is a benevolent legislation and on admission of the OP, we are inclined to pass the order for refund of the deposited amount only to the complainants only. Therefore, the OP is hereby directed to refund Rs.4,65,688/- to the complainants within 60 days from the date of passing this order. There is no order as to compensation and costs.
In view of the above, the present complaint being No. CC/1016/2019 is allowed in part ex parte and disposed of accordingly.
