DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION                    KOLKATA UNIT-IV

Sealdah Court Room No. 302 and 309

1,Beliaghata Road, Kolkata-14

BEFORE:

HON'BLE MR. SUDIP NIYOGI                                                 PRESIDENT

HON'BLE MRS. MANJUSRI SARKAR CHOWDHURY       MEMBER

HON'BLE MR. AYAN SINHA                                                    MEMBER

PRESENT:

 Judgement

HONBLE MR. AYAN SINHA            MEMBER

            This is a complaint u/s 35 of the Consumer Protection Act, 2019 made by Prosenjit Santra and Popy Santra (Complainant No. 1 & 2) alleging deficiency in service of unfair trade practice against the opposite parties i.e. Managing Director/M/s Morias Infrastructure Pvt. Ltd., Kolkata (OP No. 1), Managing Director/M/s Morias Infrastructure, Dhanbad (OP No. 2) and AV Realtors, Kolkata (OP No.3) and accordingly, prays for a direction upon the OPs (i) to hand over the physical possession of the completed flat and to execute & register the deed of conveyance against receipt of balance consideration (ii) to hand over Completion Certificate (iii) to pay enhancing registration charges and stamp duty at the time of execution (iv) to pay compensation of Rs.1,00,000/- for mental harassment and agony and Rs.50,000/- as punitive damages and to pay Rs.50,000/- as litigation cost along with interest @18% p.a. on the amount paid i.e. Rs.2,85,000/- or alternatively (v) to refund of Rs.2,85,000/- and to pay compensation of Rs.1,00,000/- and Rs.50,000/- as punitive damages and to pay Rs.50,000/- as litigation cost along with interest @18% p.a. on the amount paid i.e. Rs.2,85,000/-.

FACTS IN BRIEF

            Complainant No. 1 & 2 were looking for a better place of living with their children in a bigger apartment and being allured by the attractive advertisement published by OP No. 1 who is a developer company approached to opposite party No. 1 and decided to purchase a flat in one of their projects namely, “Harmony” at Mouza- Sukhpukur within the local limits of B conta- 1 No. Gram Panchayat, Police Station- Kolkata Leather Complex, District- South 24 Parganas. It may be mentioned OP No. 2 is one of the offices of OP No. 1 and OP No. 3 is the marketing agent of OP No. 1- Developer. The Complainants after having a detailed discussion with the representative of the OPs, had applied for an application of registration of flat on payment of Rs.15,000/- vide cheque No.855735 on 10/10/2018 drawn on State Bank of India to which OP No. 2 issued a money receipt against the same and had issued a registered allotment letter on 12/10/2018 for one flat being No. “3F” measuring 723 sq. ft. (super-built-up) approx. 2 BHK on the third floor at Block- 4. As stated in the complaint petition, OPs had given an opportunity to the Complainants to avail a spot booking benefit for which the price of the flat will be reduced from Rs. 2550/- per sq. ft. to Rs.2330/- per sq. ft. and Complainants had also availed this benefit by paying the amount according to the payment schedule for which the total consideration of the flat was amounted to Rs.21,50,735/-. Complainants had also stated that the said flat was to be handed over by the OPs within 2 years from the date of allotment letter as mentioned above. Thereafter, Complainants had further paid in the following schedule;

As alleged in the complaint petition, the main grievance of the complainants is that opposite parties even after receipt of Rs.2,85,000/- had not handed over the possession of the said flat, nor the OPs refunded the booking amount paid by the Complainants.

The Complainants time and again had repeatedly requested to the OPs for taking the possession of the said flat by paying the balance consideration, but it was found by the Complainants that the progress of the construction work was not initiated. Moreover, when the Complainants had asked for legal papers, the OPs failed to extend their cooperation. The Complainants thereafter sent several letters to the OPs through the emails i.e. on 13.06.2021, 13.08.2021 & 02.05.2022, requesting for the progress of the construction work. But the OPs did not pay any heed to their reply. Complainants finally visited the site on 18.06.2022 and found there was no commencement of construction work within 4 years and so they sent a legal notice on 27.04.2022 requesting the OPs to hand over the possession or to refund the booking amount paid i.e. Rs.2,85,000/-, but the OPs still did not reply to the said letter.

Thus, finding no other alternatives, Complainants filed this instant case alleging unfair trade practice and deficiency in service on the part of the OPs, praying for certain relief(s) as discussed above.

Notices were served upon OP No.1, 2 & 3. But despite notices being served, OPs did not contest this case by filing written version and finally the case was heard ex parte against them.

Complainants adduced evidence in support of their contention where they have reiterated the facts as stated in their petition of complaint. During the course of final hearing, Ld. Advocate for the Complainants also filed Brief Notes of Argument.

POINTS FOR DETERMINATION

1. Whether the Complainants are ‘Consumers’ under the purview of the CP Act, 2019?
2. Whether there was any unfair trade practice and deficiency in service on the part of the OPs as alleged for?
3. Whether the Complainants are entitled to the relief(s) as prayed for?

DECISION WITH REASONS

All the points are taken up together for the sake of brevity and repetition of facts. We have carefully perused the complaint petition along with annexures filed therein.

On perusal of the copies of annexures we found that the Complainants had paid Rs.2,85,000/- to the OPs as per the details mentioned below: -

Complainants have also annexed an allotment letter issued by the OPs dated 12.10.2018 wherefrom it is noticed that they had confirmed the Complainants for allotment of the flat No. 3F, third floor, “Harmony” of 723 sq. ft. On further scrutiny of the annexures, we also found one copy which had been duly signed and stamped by the OPs stating the spot booking benefit where the value of the said flat would be reduced from Rs. 2550 per sq. ft. to Rs.2330 per sq. ft showing the total consideration to be paid was Rs.21,50,735/-.

So, there is no doubt that the Complainants wanted to purchase the said flat and that is why he advanced Rs.2,85,000/- as aforesaid out of the total consideration of Rs.21,50,735/-. It is clearly understood that the OPs had failed to deliver the possession after issuing the allotment letter on 12.10.2018.

Surprisingly, we failed to understand why the OPs even after receipt of Rs.2,85,000/-, did not refund the booking amount also when they have not yet started the construction work of the said flat.

Therefore, we are of the considered view that the Complainant are ‘Consumers’ and we hold there was certain deficiency in service on the part of the OPs and Complainants are entitled to the relief(s).

Moreover, despite the notices were served upon the OPs, the allegations remained unchallenged and unrebutted.

It is settled law that the purchaser of the flat should not be made waited for indefinite period after booking of the flat for completion and obtaining the possession of the same.

Considering the facts and the evidences adduced by the Complainants, we are of the considered view, if a direction be given upon the OPs to refund of Rs.2,85,000/- along with compensation of Rs.10,000/- and litigation cost of Rs.5,000/- to the Complainants, it would be just and appropriate.

This apart, Complainants have also claimed other cost of damages which in our view are exaggerated and so we are not inclined to pass any order for the same.

In the end, Complainants have succeeded in proving their case.

Accordingly, it is

                                                                ORDERED

That the instant complaint no. CC/129/2022 and the same is being allowed ex parte against the OPs.

OPs are directed to refund Rs.2,85,000/- (Rupees Two Lakh Eighty-Five Thousand Only) along with compensation of Rs.10,000/- (Rupees Ten Thousand Only) and litigation cost of Rs.5,000/- (Rupees Five Thousand Only) to the Complainants within 45 days from the date of this order.

OPs are jointly and severally liable to pay the aforesaid amount to the Complainants within the stipulated period in default, the entire amount shall carry simple interest @6% from the date of default, until realization in full.

If the abovesaid order is not complied with by the OPs within the aforesaid period, Complainants are at liberty to proceed in accordance with law.

Dictated and corrected by me

                         Member

[HON'BLE MR. SUDIP NIYOGI]

PRESIDENT

[HON'BLE MRS. MANJUSRI SARKAR CHOWDHURY]

MEMBER

[HON'BLE MR. AYAN SINHA]

MEMBER