Case of the complainants in brief is that being attracted by the advertisement of the OP-Usashi Real estate Pvt. Ltd’s. Residential building project namely “Prince Town Platinum” at Beonta, 2 no.Gram Panchayet ,24 parganas [ north ], the complainants entered into an agreement with the OP-developer in order to purchase a 3 BHK flat. It is stated in the petition of complaint that the complainants paid an amount of Rs 3, 60,225/- towards earnest money to the OP no 2 on 21/02/2017. Thereafter OP no2 issued money receipt and executed Agreement for Sale on 25/07/2017. It is further stated that the complainants enquired about the progress of the development work to the OP-developer in regular intervals and OP gave assurance to complete the project very soon. After elapse of a considerable spell of time the complainants visited the project site and found no project work been started. Complainants requested the OPs to provide some project documents and to start the development work of the project but OP neither provided any documents to the complainants nor started the project work though OP issued a booking confirmation letter on 28/03/2018. Finding no other way, the complainants requested the OPs to cancel the Agreement for Sale and to refund the paid amount to the complainants by sending letter dated11/04/2019. OPs replying by letter dated 07/06/2019 stated that they are ready to pay Rs 3, 60,225/-through five installments. But they did nothing to that effect. Complainants stated that on several occasion they requested the OPs to refund the paid amount but OPs did not turn up. Finding no other alternative, complainants filed this case praying for direction upon the OPs to complete the construction work of the flat in question and to hand over the same to the complainants or to refund the amount of Rs3,60,225/- to the complainants along with compensation of Rs.3,00,000/- and litigation cost of Rs.50,000/-.
OPs have contested the case by filing written version, denying and disputing the allegations labelled against them, stating that OPs have provided various sorts of services to the complainants till the cancellation of the Agreement for Sale, sought by the complainants vide letter dated 02/04/2019 and the same was accepted by OPs and as such complainants are no more consumers under the OPs. Accordingly OPs have prayed for dismissal of the case with cost against the complainants.
In support of their case the complainants and the OPs have adduced evidence –in-affidavit.
Points for determination
- Whether the complainants are the consumers under the OPs?
- Whether there is deficiency in service on the part of the OPs?
- Whether the complainants are entitled to reliefs as prayed for?
Decision with reasons
Point no. 1
We have heard the Ld. Counsel for the complainant as well as the Ld. Counsel for the Opposite Parties and perused the material on record thoroughly. The counsel for Opposite Party has contended that complainants are not consumer within the meaning of C.P. Act 2019. It is evident from the documents on record that the Agreement for Sale was executed on 25.07.2017. However, the complainants have alleged that even after expiry of more than one year the OP-developer did not even start the housing project. It is evident that the complainants by a letter dated 02/04/2019 requested the OPs to refund the paid amount of Rs.3, 60,225/-to them. It is also evident that no deed of cancellation has been executed by and between the parties in respect of the Agreement for Sale dated 25/07/2017.
In view of the matter, we are of opinion that the consumer vis-à-vis the service provider relationship between the complainants and the OPs has not been ceased till date. Hence complainants are consumers under the scope and meaning of CP Act.
Thus, point no.1 is decided affirmatively in favour of the complainants.
Point no.2
The expression deficiency in service has been dealt with by the Hon’ble Apex Court in Arifur Rahman Khan and Ors. Vs. DLF Southern Homes Pvt. Ltd. And Ors. Reported at 2020 (3) RCR (Civil) 544, wherein it has been held as follows:-
“A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the manner and nature of performance which has been undertaken to be performed in pursuance of the contract in relation to the service in section
2 (42) means a service of any description which is made available to potential users including the provision of facilities in connection with housing construction.”
As per the above dicta of the Hon’ble Apex Court, where the builder defaults in handing over of the possession to the consumer within a stipulated time period, it is a clear case of deficiency in service as defined under the Consumer Protection Act 2019. Moreover, in this instant case OPs promised to refund the amount paid by the complainants vide letter dated 07/06/2019. Deviation from such promise amounts to deficiency in service on the part of the OPs.
Point no 2 is decided accordingly in favour of the complainants.
Point no 3
In this present case the flat purchasers suffer agony and harassment as a result of the default of the OP-developer. The flat which has been purchased being available for use and occupation- these expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfillment of a contractual obligation. Moreover, the inaction of the OPs compelled the complainants to file this case. Hence, the complainants are entitled to get the compensation and cost of litigation. As per our assessment, Rs 20,000/- towards compensation and Rs. 10,000/-towards the cost of litigation should be given to the complainants.
Point no 3 is decided accordingly.
In the result the petition of complaint succeeds.
Hence, it is,
Ordered
that the consumer complaint case beingno.38/2019 is herebyallowed on contest against the OPs with cost.
OPs are jointly and severally directed to refund Rs.3, 60,225/- with the interest @9%p.a.from the date of filing this case till 30 days from this date of order to the complainants. The OPs are further directed to pay Rs. 20,000/- towards compensation and Rs. 10,000/- towards cost of litigation to the complainants within 30 days from this date of order failing which the entire amount shall carry interest@12% p.a. till realization.
Let a plain copy be given to the parties free of cost as per CPR.
Dictated and Corrected by
[HON'BLE MRS. Sagarika Sarkar]
MEMBER
