FINAL ORDER/JUDGMENT

Presented by:

Minakshi Chakraborty,  Presiding Member.

 Brief facts of the case: This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant had a long standing desire to purchase a residential flat of their own in the city of Kolkata and with a view to fulfill the aforesaid desire, the petitioners on 23^rd April, 2017 made an application to the op company for allotment of a 1BHK self contained flat in the building to be constructed in the Housing Complex “King Town New Town” lying and situated at Mouza-Jirangacha, JL no.25, Pargana – Balanda, Touji No.586, comprised in RS/LR Dag, Nos 46,45,47,49,43,44,53,54,55,56, to 123 under P.S- Kassipore within the limits of Bhawanpur Gram Panchayat, District-24 Parganas South and immediately after receiving the said application dated 23^rd April, 2017 of petitioners, it was informed by the OP company that the application of the petitioners would be accepted by the OP company on the precondition that the petitioners agree and undertake to make payment of 25% of the total consideration price of the said flat and upon agreeing to the aforesaid condition of the OP, the OP company  will accept the application of the petitioners and the petitioners were allotted one self-contained residential 1BHK Flat having a total covered area of 318.62 sq.ft. on the 1^st floor South East side of the proposed building and in due discharge of the ;obligations under the aforesaid agreement, the petitioners made payments from time to time to the op company which were duly received accepted and acknowledged by the op company.  Particulars of the payments made by the petitioners to the OP company is described in the complaint petition.

On or about 10^th February, 2018, a formal written agreement for sale was executed by and between the petitioners and the ops for purchase of the said flat.  Although the petitioners made periodic and timely payments, the op, however, failed and neglected to commence the construction work in terms of the agreement for sale.  There was, in fact, no construction made by the op company at the proposed site for long and inasmuch as no progressive steps were taken by the op company for the construction of the building at the proposed site, the petitioners by a letter dated 24^th June , 2019 made an appeal to the op to cancel the aforesaid agreement for sale dated 10^th of February, 2018 and for refund / return of the entire money paid by the petitioners to the op company. By the letter dated 18^th July, 2019 the ops confirmed the receipt of letter dated 24^th june, 2019 sent by the petitioners.  The petitioners, under the said letter, were further informed to contact concerned representative of the op for refund procedure and other allied matters related to refund.

In terms of the aforesaid letter dated 18^th July, 2019 petitioners contacted, through this mobile no. being 919073691733, the representatives of the op company who called upon the petitioners to submit various documents alongwith a written declaration to the effect that they will not raise any claim and have any other claim whatsoever and will be fully satisfied by the refunded money amount given to the petitioners against cancellation of booking of the said unit.  The representative of the op company also forwarded to the petitioners a declaration form.  The petitioners, accordingly, submitted a written declaration dated 18^th of October, 2019 alongwith other supporting documents and the op company, however, avoided to refund the money to the petitioners on one pretext or the other.  Various excuses were given by the op company to withhold the money of the petitioners.  The Petitioners regularly contacted the office of the op company for refund of the money given by them.  The op company even adopted several tactics to harass the petitioners and on 14^th February, 2020 the petitioners were completely shocked to receive an email from the op company whereby the petitioners were informed that the money of the petitioners would be refunding installments commencing on and from March, 2020 to September, 2020.  The purported payments schedule given by the petitioners is absolutely and wholly illegal and contrary to the agreement for sale dated 10^th February, 2018.

In spite of the assurance given by the op company that the repayment would be made to the petitioners, the op company failed and neglected to make refund of the money to the petitioners.  Having received no money from the op company the petitioners again sent a reminder mail on 6^th July, 2020 indicating that the petitioners have received no payment from the op company.  The op company replied by an email dated 7^th July, 2020 citing several irrelevant reasons for non-payment.  The petitioners responded by an email dated 8^th July, 2020.  A counter reply was given by the op on 10^th July,2020.

The petitioners again on 31^st August, 2020 sent an email to the op demanding refund of the money.  The petitioners further called upon the op company to keep their commitments given by them which are recorded in its earlier email dated 14^th February, 2020.  Despite several demands and reminders given by the petitioners, the op did not refund the money of the petitioners without any lawful and justifiable reason.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs.5,35,339/-.  

Evidence on record

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

Argument highlighted by the ld. Lawyers of the parties

Complainant have filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant shall have to be taken into consideration for disposal of the instant proceeding.

            Heard argument of complainant at length. In course of argument ld. Lawyer of complainant have given emphasis on evidence and documents produced by the them.

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

Issues/points for consideration

1. Whether the complainants are the consumers?
2. Whether this commission has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite party?
4. Whether the complainants are entitled to get relief?

DECISION WITH REASONS

Issue no.1:

     In the light of the discussion hereinabove and from the materials on record, it transpires that the complainants are consumers as provided by the spirit of Section 2 (7) of the Consumer Protection Act, 2019.The point is thus answered in the affirmative.  

Issue no.2:

                        Both the complainants and the opposite party are residents/having their office addresses within the district of Hooghly and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.

Issue nos. 3 & 4:

Both the issues are taken up simultaneously for the sake of convenience.

It appears from the documents of the complainants and the OP that immediately after making the agreement for purchase of 1BHK SELF CONTAINED FLAT IN THE HOUSING COMPLEX ‘ KING TOWN NEW TOWN” the petitioners have deposited an amount of RS. 2,41,813/ on 4 installments ( 3 installments in cheques drawn on canara Bank College St branch and the last one on 13^th December 2013 by cash ) and thereby total amount stands to RS. 2,41,813/ . The written agreement between the parties dated 10/2/18 though seems to be completed  and possession is likely to be given within 10 th June 2021 the behavior of the OP did not seem to be eager to start construction within a reasonable time and such an attitude of the OP laid the petitioners by a letter dated 24/6/19 make an appeal to cancel the aforesaid agreement with the prayer to refund the entire money paid by the petitioners( vide letter C).

The petitioners were informed by a letter dated 18/7/2019 to contact the concerned representative of the OP for refund procedure and other allied matters related to refund. On advice the petitioners also sub mitted a declaration form on 18/10/2019 alongwith other supporting documents but the OP avoided to refund the money on various excuses and they were given assurance that refund will commence on and from March 2020 to September 2020 in installments.

All the documents of the petitioners and Usosho real estate pvt Ltd( the OP) and the discussion held beforehand it is very much apparent that though there was an agreement between the parties( annexure B) that the sale and possession would be handed over by the date of completion that is 10/6/2021 it appears apparently that even by the date agreed between the parties the construction could be completed in as much as the present complaint case has been instituted on 7/9/21 it appears surprising to note that even after receipt of notice to contest the present case the OP has not turned up to contest the case( vide order 5 dt. 10/3/22).There appears reasonable ground to hold that there is a failure on the part of the OP to comply with the contractual obligation with the contractually stipulated period. The OP could have completed the construction within the stipulated period i.e. by 10/6/21 as per agreement. The petitioners expected it within a period of 16 months which prompted the petitioners to institute the present proceeding. The nature and manner of performance undertaken by the OP in pursuance of a contract be defined as service and as such the deficiency in service relates to the compensation which also results in the petitioners agony and harassment.

In view of the above discussions there appears reason to hold that the petitioners are entitled to get refund the entire money deposited along with compensation.

Both the issues are thus disposed of ex parte.

Hence

ordered

that the complaint case no. 115 of 2021 be and the same is  decreed exparte against the OP.

The petitioners do get refund of RS. 2,41,813/along with a compensation of Rs. 50,000/ on account of mental harassment and agony from the OP within 45 days from date. In case of failure the petitioners are at liberty to take recourse to law .

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.

The Final Order will be available in the following website www.confonet.nic.in.