This complaint petition u/S 34(1) and 35 of the Consumer Protection Act’ 2019 is at the instance of the Complainant against the Opposite parties on the allegation of deficiency of services on the part of the Opposite parties in a consumer dispute of housing construction.

The facts of the complaint case in a capsulate form is that sole OP is the Director of a Private Limited Company namely Dharitri Infraventure Pvt. Ltd. having registered office at Sector V, Salt Lake City, PS: Electronics Complex, Kolkata 700091. The Opposite party was scheduled to construct housing complex namely ‘Royal Enclave’ comprising flat Units, car parking space, commercial spaces, Duplex Bungalow etc. at mouza Hatishala, J.L. No. 9, R.S. No. 31, Touzi No. 2999 comprised in R.S. Dag No. 1288 appertaining to R.S. Khatian No. 652 , PS: Leather complex in the district of South 24 Parganas.

The complainant wanted to purchase a residential flat and so entered into an agreement / Memorandum of Understanding on 06/01/2016 with the OP. It was agreed as per that MOU that the complainant would purchase a 1 BHK flat having super built up area of 350 sq. ft. more or less. In that agreement it was agreed that the total consideration money of the said flat being fixed as Rs. 7,77,188/- (Rupees Seven Lac Seventy Seven Thousand One Hundred and Eighty Eight) only

Further, the complainant paid Rs.1,00,000/- (Rupees One Lac only) vide cheque no. 000004 dated 10.08.2015 drawn on Standard Chartered Bank, Mani Square branch to the OP as advance payment to book the flat out of the said 7,77,188/-. Again the complainant paid Rs.25,000/- vide cheque no. 000006, Rs.50,000/- vide cheque no. 000007 and Rs. 50,000/- vide cheque no. 000014 to C-21 Advisory Services Pvt. Ltd., the marketing agent of OP towards advance payment to book the flat. The complainant further paid Rs. 6,750/- and Rs. 2,250/- as Surcharge to Op on 26.06.2017 and Rs. 6,000/- as GST on 10.02.2016 against receipt, thereby totalling to Rs.Rs.2,40,000/-.

As per the said MoU, it was agreed between the parties that the said flat would be completed by the OP within 42 months from the date of signing of this MoU i.e. by 05.07.2020. It was further agreed that possession of the said flat would be handed over to the complainant within the said stipulated time.

Further, the case of the complainant is that he did not find any physical progress about development of the said project and so the complainant again visited the office of the OP1 on 05.04.2019 seeking refund of the said Rs.2,40,000/- that was paid by him as advance for purchasing the flat and the refund form was filled up and deposited by the complainant to the OP.

Further the case of the complainant is that the OP did not take any step and no progress or development was made for the said project. The Opposite party did not take any steps to comply with the same as per MoU. The OP neither refunded any amount to the complainant though they issued a letter to the complainant promising to refund by 25.11.2019. In this regard, all the requests and persuasions of the complainant went in vein. Hence, the complainant approached this Commission with a prayer for a relief inter-alia to pass an order to give direction upon the OP to handover the possession of the said 1 BHK suit property or refund of the principal amount of Rs.2,40,000/- as they failed to provide service in favour of the complainant and to give direction upon the OP to pay Rs.3,00,000/- as compensation for the delay in handing over the flat and a compensation for harassment, mental agony and tension alongwith a litigation cost of Rs. 1,00,000/-.

The OP although filed written version on 23.09.2021 but did not avail the opportunity to file Questionnaires, touching upon the evidence filed by the complainant. Neither the OP adduced evidence and hence the chance to file the same got closed. OP did not participate during final argument or filed BNA.

On behalf of the complainant the contents of the petition of complaint supported by affidavit and the documents annexed therewith was treated as evidence through affidavit.

We have considered the submission made by the Ld. Advocate for the complainant and scrutinized the materials on record.

On perusal of the petition of complaint and the evidence on record, it transpires that the OP was going to construct a housing complex known as ‘Royal Enclave’ comprising flat units, car parking space, commercial spaces, duplex bungalows etc. at mouza Hatishala, J.L. No. 9, R.S. No. 31, Touzi No. 2999 comprised in R.S. Dag No. 1288 appertaining to R.S. Khatian No. 652, PS: Leather complex in the district of South 24 Parganas. It also transpires from records and evidences on affidavits and annexures exhibited by complainant as per Sl (1) to (8) of the Index of page 1 of the complaint petition that the complainant and the Opposite party entered into an agreement / Memorandum of Understanding on 06.01.2016 and by this agreement the complainant booked one 1 BHK flat having super built up area of 350 sq. ft. more or less.

It also appears that at that time of the booking of the said flat the complainant paid Rs.2,40,000/- to the OP company as per bank statements exhibited by the complainant duly notarised.

It also appears that the OP did not take any step for the development of the said project and neither they took any step to refund the booking money to the complainant. It is not in dispute that the OP has received the said amount of Rs. 2,40,000/- and failed to construct the housing construction project, to develop the said building and to deliver the possession of the said 1 BHK flat to the complainant.

The facts and circumstances and materials on record, more particularly, relying upon the evidence on record, it is palpably clear that the OP could not keep their promise and as such, they are deficient in rendering services towards a consumer.

In view of the above, the complainant is entitled to get relief.

       In 2016 CPJ 328 (NC) Hon’ble National Commission held thus :-

“Para 9. As far as the allottees in tower E & F are concerned, they have already sought refund as an alternative relief, along with compensation under several heads. Therefore, we have no hesitation in holding that in the facts and circumstances of the case the allottees in both the complaints are entitled to refund of the money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them. They are also entitled to appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the opposite party to deliver possession of the flats booked by them. In this regard, it is to be kept in mind that a person books a residential flat for the purpose of having a roof over his head, and in the hope that on completion of the construction within the time promised by the builder he will be able to live in a house of his own. Therefore, he is bound to feel disappointed and frustrated when the builder does not deliver upon its promise for years together”.

In another complaint case no. CC/780/2019 at Hon’ble SCDRC, West Bengal which is identical in it’s contents and merit and periodicity of flat booking and filing of the complaint against the same OP company during similar period on 27.09.2019, Rs. 4,30,000/- was paid by the complainant on 25.01.2016 as advance for booking for a 2 BHK flat (with part refund of 1,10,000/- on 12.07.2019) for a total consideration money of Rs.21,50,000/- and Car parking for Rs. 3,50,000/- to which the bench of Hon’ble Justice Mr. Manojit Mandal and Mrs.Samiksha Bhattacharya held in para 23, 24 & 25 of their Order dated 01.08.2022 that :

“That the complaint case No. CC 780 of 2019 be and the same is allowed ex parte against the Opposite parties.The Opposite parties are hereby directed to refund the amount of Rs.3,20,000/- (Rupees three lakh and twenty thousand) only to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the date of each payment till the date on which the entire amount along with compensation is paid, in the form of compensation. The Opposite parties shall pay Rs. 10,000/- (Rupees ten thousand) only as cost of litigation. The payment in terms of this order shall be made within three months from this day”

In another complaint case no. CC/327/2019 at Hon’ble SCDRC, West Bengal which is identical in it’s contents and merit and periodicity of flat booking and filing of the complaint against the same OP company during similar period on 06.05.2019, Rs.1,55,000/- was paid by the complainant on 22.05.2017 as advance for booking of a 3 BHK flat and one car parking for a total consideration money of Rs.15,50,000/- to which the bench of Hon’ble Justice Mr. Manojit Mandal and Mrs.Samiksha Bhattacharya held in para 23, 24 & 25 of their Order dated 24.03.2022 that :

“That the Complaint case no. CC/327/2019 be and the same is allowed ex-  parte against the Opposite Party. The Opposite Party is hereby directed to refund the amount of Rs.1,55,000/-(Rupees one lakh fifty five thousand) to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the date of each payment till the date on which the entire amount along with compensation is paid in the form of compensation .

The Opposite party shall pay Rs.10,000/- (Rupees ten thousand) as cost of litigation.

The payment in terms of this order shall be made within three months from this day.

If the Opposite party fails to comply with the direction made above within the period mentioned above, then the complainant is at liberty to get the order implemented with due course of law”

Again, in 2016(3) CPR 279 (NC) Hon’ble National Commission held thus –

“Para 10. Since the opposite party has failed to offer possession of the flat agreed to be sold to the complainants by the date stipulated in the Buyers Agreement in this regard and 5/6 years have already expired from the said committed date for delivery of possession. The complainants cannot be compelled to wait any more for the builder to deliver and they are entitled to seek refund of the money paid by them along with appropriate compensation.”

In view of the above decisions of the Hon’ble National Commission, we hold that the complainant is entitled to get refund of the money paid by him along with appropriate compensation in the form of interest for the financial loss and for mental agony and harassment suffered by him on account of the failure of the OP to deliver possession of the flat booked by him. We hold that there is deficiency in service on the part of the Opposite parties in the matter of construction of flat and delivery of possession as per terms and conditions of the agreement. In result, the Complaint case succeeds.

      Hence, it is Ordered :-

That the complaint case no. CC/250/2020 be and the same is allowed on contest against the OP. The OP is hereby directed to refund the amount of Rs.2,40,000/- (Rupees Two Lac Forty Thousand) only to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the date of each payment till the date on which the entire amount including compensation is paid.

The OP is also directed to pay Rs. 10,000/- (Rupees Ten Thousand) only to the complainant as cost of litigation.

The payment in terms of this order shall be made within two months from this day.

If the Opposite party fails to comply with the above said direction within the period mentioned above, then the complainant is at liberty to put the entire order into execution as per due course of law.

Let a plain copy of this Order be provided to both the parties free of cost as per CPR.

Dictated and corrected by

 [HON'BLE MR. Partha Kumar Basu]
MEMBER