FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The case of the complainants in a nutshell is that the present substituted complainants hired the housing construction service by virtue of an agreement for sale dated 20/03/2014 from the OP for booking of a residential flat being No. 3D on the 2^ndFloor, measuring about 1428 sq.ft more or less in Block No.05 lying and situated at the building namely Sanjeeva Orchared- II at Mouza Thakdari, Mahishbathan II Gram Panchayat, P.S. New Town, in the District of 24 Parganas, Kolkata – 700156 and also hired construction service one medium size covered garage / car parking space at the ground floor of the complex for a total consideration of Rs.63,02.100/- and as per demand made by the OPs the complainant paid a total amount of Rs.18,08,637/- with service tax amount to the OPs till 07/07/2014. Moreover on 17/01/2015 complainant no.2 contacted the OPs through email regarding online payment, but did not receive any reply from the OPs. Thereafter several communications were made between the complainants and authorized representative of the OPs through emails regarding further payment, registration and possession of the said flat and garage. But after passes of months after the promised date of handing over the possession to the complainant the OPs failed to complete the said building. Therefore the complainants requested the representatives of the OPs through email dated 16/12/2020 to cancel their booking and refund back the entire advance amount. On reply vide mail dated 22/12/2020 and 06/01/2021 representatives of the OPs agreed to refund the advanced amount and informed that refund process will start from April, 2021. Before and after April 2021 complainants sent several reminders through emails to the representatives of the OPs but the OPs did not turn up. Finding no other option complainants lodged a complaint to the Office of the assistant Director, Consumer Affairs and Fair Business Practices, Khadya Bhawan, Kolkata – 700087 which was registered as serial no. 124/2021 and hearing was fixed on 31/01/2020. But none appeared on behalf of the OPs on the date of hearing. Complainants made several attempts to communicate with the OPs till 08/03/2021 and then after waiting for long time sent a legal notice on 28/03/2022 to the OPs1 to 4 and the same notice were sent to the said representative of the OPs on 03/04/2022. But no steps were taken by the OPs. Hence the consumer complaint to get justice.

OPs despite service of notice of the complaint have failed to file Written Version within the limitation provided u/s 38(2) of the Consumer Protection Act, 2019. No request for condonation of delay or extension of time for filing written version is made. Therefore, right of the OPs to file WV is closed.

Complainant has filed his evidence by way of affidavit supporting the allegations made in the complaint.Ld. Advocate for the complainant has taken us through the consumer complaint as also the evidence adduced of the complainant.

The pleadings of the complainant and the evidence on record make it quite clear that OPs are partnership firmunder the provision of the Indian Partnership Act, 1932 and undertook development in respect of the project Known as ‘Sanjeeva Orchard II’.Complainants booked one flat measuring about 1428 sq.ft. on 2^nd  Floor at Mouja – Thakdari , Mahishbathan II Gram Panchayat, P.S.- New Town , Kolkata – 700156, Dist – North 24 Pgs at a total consideration of Rs.63,02,100/- . It is also not in dispute that the complainant has already paid Rs.18,08,673/- as part consideration amount towards the said total  consideration amount on diverse dates. As per terms of the agreement, the OPs were under obligation to hand over the subjectflat to the complainant within 30 months from the date of agreement with a grace period of 6 months.THE THIRD SCHEDULE PART II of the Agreement for Sale relates to payment schedule and as per payment schedule, the complainant was under obligation to pay the consideration amount in the following manner:

1.         On Agreement                                                      12,60,420/-

2.         On or before 4^th April, 2014                                  6,30,210/-

3.         At or before stilt floor casting                              6,30,210/-

4.         On or before ground Floor roof Casting             6,30,210/-

5.         On or before 1^stFloor roof Casting                     6,30,210/-

6.         On or before 2^ndFloor roof Casting                   3,15,105/-

7.         On or before 3^rdFloor roof Casting                   3,15,105/-

8.         On or before 4^thFloor roof Casting                   3,15,210/-

9.         On or before completion of Brick Work           3,15,105/-

10.       On one before Finishing work                        3,15,210/-

11.       On or before Possession                                6,30,201/-

Total                                                                           63,02, 100/-

________________________________________________________

Evidently, it was a construction linked payment plan. Fact also remains that complainants paid Rs.2,50,000/- on 16/12/2013, Rs.5,66,995/- on 11/01/2014, Rs.4,82,372/- on 19/03/2014, Rs.1,00,000/- on 10/05/2014, Rs.1,00,000/- on10/05/2014, Rs.1,30,000/- on 07/07/2014, Rs.1,79,270/- on 07/07/2014. There is no evidence that the OPs have ever informed the complainant to pay amount on the basis of progress of construction and there was no whisper about the date of completion and/or handing over possession or the present possession of the said Unit.

On evaluation of materials on record, it transpires that the complainant being 'consumer' as defined in Section 2(7)(i)(ii) of the C.P.Act 2019 hired the services of OPs on consideration  and OPs have failed to fulfil their part of obligations as per Agreement for Sale dated 20.03.2014and thereby deficient in rendering services towards the complainant within the meaning of Section 2(11) read with Section 2(42) of the Act.  Therefore, the complainant is entitled to some reliefs.  Despite payment of bulk consideration amount and agreed to pay the balance amount, when the complainants was deprived from having a roof of his own over their head for long years, certainly it caused tremendous mentally agony and harassment for which they are entitled to compensation and considering the loss suffered by him. Under compelling circumstances, the complainant has to knock the door of this Commission constituted under the Act.

It is pertinent to note that despite service of notice of the complaint, OPs did not put in appearance nor the OPs filed Written Version in response to the complaint. As the OPs has failed to controvert the allegations in the complaint by filing Written Version, the allegations in the complaint are deemed to have been admitted as correct. It is well settled that the allegation made in the complaint, if not denied is deemed to be admitted as correct. The complainants in their affidavit did support the allegations in the complaint. Therefore, it cannot be said that complainant has failed to prove deficiency in service.

In that perspective, keeping in view the decision of the Hon'ble Supreme Court reported in (2018) 5 SCC 442 (Fortune Infrastructure - Vs. - Trevor D'Lima) it can be held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and in such circumstances entitled to seek refund of the amount paid by him along with compensation.  Keeping in view ofthe decision of the Hon'ble Supreme Court reported in (2019) 5 SCC 725 (Pioneer Urban Land & Infrastructure Ltd.  Vs.- Govindan Raghavan) it appears to us that in the facts and circumstances when there is clear deficiency in rendering services on the part of the OPs in handing over the possession within the time frame, the complainant is entitled to refund  the amount along with compensation in the form of simple interest @8% p.a. from the date of each payment till its realization.

In view of the above, the complaint is allowed on ex parte with the following directions against OPs:

(i) The OPs are jointly and severally directed to refund the amount of Rs.18,08,637/- along with compensation in the form of simple interest @ 8% p.a. from the date of each payment till its realization.

(ii) The OPs are jointly and severally directed to make payment of Rs.25,000/- to the complainant as costs of litigation;

(iii) The above payments must be made within 30 days from date of communication of this order.

Let copy of the order be supplied to the parties as per C.P. Regulation.