Dated : 14 July, 2022

Final Order / Judgement

  MR. AYAN SINHA,                                                                             MEMBER

           This is the complaint Under Section 35 of CP Act 2019 made by Dr. Sayantani Nayak alleging deficiency of Service against the OPs (1) Ushashi Realstates Pvt. Ltd. & Ors. (OP No. 1), (2) Goutam Kr. Sahoo (OP No.2), (3) Uma Khan (OP No. 3) and accordingly prays for a direction upon the OPs to refund Rs.4,06,483/- along with interest @12% p.a., to pay compensation of Rs.5,00,000/- along with cost for legal expenses.

FACTS IN BRIEF

The complainant approached the OPs in September 2016 for a 3BHK Flat in their Housing Project situated at Mouza – Hatisal, under P.S. – Kolkata Leather Complex within the limits of Beonta No.2, Gram Panchayat, District- 24 Parganas (South). The complainant made an application No. PTP/0975 along with a cheque of Rs.20,000/- against the total consideration of Rs.18,92,554/- and accordingly complainant was allotted a 3BHK Flat of 674 Sq. ft. consisting of three bed rooms, one drawing-cum-dining space, one kitchen, two toilets & one balcony on the 2^nd Floor which was to be delivered by the OPs, latest by 2019. Thereafter, the complainant paid Rs.1,89,654/- on 28.01.2017, Rs.55,762/- on 04.02.2017 & Rs.1,41,067/- on 04.05.2017 & thus paid Rs.4,06,483/- to the OPs out of the said total consideration.

           The complainant visited several times to the office of the OPs for enquiring the status of the construction but the OPs made false promises and informed that the possession for the Flat & Car – parking Place will be handed over to her in the year 2019. Being unsured, the complainant

also visited the land of the said Housing Project and was surprised to see that no such construction had started, after which the complainant protested by visiting the office of the Office of the OPs in February 2019 and thereafter was compelled to issue notice on 11.02.2019 to the OPs requesting for the refund of money of Rs.4,06,483/- to which the OPs informed through e-mail on 05.09.2019 stating that the amount would be refunded as per their payment schedule starting from October 2019 and will end by April, 2020.

           The OPs did not make any payment in spite of their averments made in their e-mail Dt. – 5/9/2019 and so the complainant issued notice on 21.12.2019 to which OP in their e-mail dated 13.01.2020 provided the contact No: 9073692472 and stated their concerned person will take care for the refund. The complainant tried to call but the same were unattended.

          The complainant issued legal notice on 03.03.2020 to the OPs for the refund of the said amount and thereafter complainant could not pursue with the OPs for Covid Pandemic outbreak from March 2020. Another legal notice in January 2021 was sent to the OPs to which the OPs did not reply, nor refunded the amount.

         Thus, by the culpable act of the OPs, causing mental harassment & agony and being deprived of her legitimate fund, complainant filed this case.

         Notices were served upon all the OPs but the OPs did not contest this case by filing Written Version and so the instant case proceeded ex parte against the OPs vide order Dt. 11/5/2022.

         Complainant filed Evidence in Chief on Affidavit where she has reiterated the facts as stated in the complaint petition.

         During the course of final Hearing, complainant also filed certain originals in support of her contention.

POINTS FOR DETERMINATION

1. Whether there was any deficiency of Service on the part of the OPs as alleged by the complainant?

2. Whether the complainant is entitled to the relief(s) as prayed for?

DECISION WITH REASONS

          All points are taken up together for the Sake of Brevity and repetition of facts.

On perusal of the complaint petition and the annexures filed therein, we found that it is an admitted fact from OP’s letter, that the complainant had booked for a flat at “Usashi Prince Town Platinum” against payment of Rs.4,06,503/- made by the complainant on several dates through cheque and the same were duly signed & received by the OPs.

On further scrutiny of the Agreement for sale dt. 27.08.2017 it is found that the said flat would be handed over within 40 months from the date of Agreement for Sale. It is also found from the copy of letter dated 21.12.2019 sent by the complainant to the OPs, she requested to refund her amount since the possession of flat & car parking were not handed over within the stipulated time. The OPs vide letter dated 05.09.2019 assured to refund, giving different scheduled dates & on further perusal of the said OPs letter, surprisingly it is noticed that they are refunding only Rs.3,89,136/- out of the consideration paid of Rs.4,06,503/-.

Considering the facts and circumstances and couple of evidence & annexures filed therein, we have no doubt to ascertain that the OPs firstly delayed for handing over the possession & thereafter even after assurance for Refunding the Amount with deductions, they failed to refund the said amount as assured.

It is now settled principle of law that the purchased cannot be made to wait indefinitely for the possession of flat as this Bungalow allowed to him/her as agreed between the parties.

Since the OPs assured to the complainant & agreed to refund her legitimate claimed amount & thereafter did not pay the same we hold there was certainly a deficiency of service on the part of the OPs. Moreover the instant case remained unchallenged & unrebutted also.

On careful scrutiny of the complaint petition we found that although the complainant had paid Rs.4,06,503/- but in the prayer portion, she prayed for Rs.4,06,483/-. So, we are inclined to pass order as per the Refund amount mentioned in the prayer portion of the instant complaint.

As such we are of the view that the complainant is entitled to the relief(s).

In respect of compensation & litigation cost, we opined if a direction be given upon the OPs to pay complainant, interest @10% p.a. on the amount(i.e. Rs.4,06,483/- which was paid to the OPs by the complainant) along with litigation cost of Rs.5,000/-, it would be just an appropriate.

In the end, the complainant has succeeded in proving his case.

Hence,                                  it is

                                                                                           ORDERED

That the instant case be and the same is allowed ex parte against the OPs.

OPs are directed to pay Rs.4,06,483/- (Rupees Four Lakh Six Thousand Four Hundred Eighty Three Only) to the complainant along with an interest of 10% p.a. from the date of last payment i.e. 04.05.2017, until realization in full.

OPs are directed to pay the awarded Amount within 45 days from the date of this Order.

Liabilities of OPs are jointly and severally.

If the awarded amount is not complied by the OPs within the aforesaid period, the complainant is at liberty to proceed in accordance with law.

Dictated and corrected by me.