FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the complainants, in brief, is that, on 30/03/2016, complainants have executed an Agreement for Sale with the OPs for a residential unit at “IVY Greens II”, P.S. – Rajarhat. District – North 24 Parganas, Chandpur Gram Panchayet, Mouza – Sikharpur, Kolkata – 700135, measuring about super built up area of 1040 sq.ft, along with a covered car parking space and a club membership, for a consolidated consideration amount of Rs.34,74,400/-, comprised in block 9 being unit No. B2 on the 2ndfloor by paying Rs.12,76,309/- vide Receipt No. MR-IVY2/00080/15-16 dated 14/12/2015 for Rs.2,58,750/-, Receipt No.MR-IVY2/00126/15-16 dated 16/01/2016 for Rs.5,22,882/-, Receipt No. MR-IVY2/00165/15-16 dated 16/02/2016 for Rs.35,724/-, Receipt No.MR-IVY2/00706/17-18 dated 18/11/2017 for Rs.73,632/-, Receipt No. MR-IVY2/00708/17-18 dated 18/11/2017 for Rs.3,85,321/-.Complainants have availed of a Housing Loan from the Central Bank of India, Red Cross Place Branch of Rs.28,42,000/- under the subvention scheme of the bank, having Loan Account No. 4003240112 and out of the said loan amount Rs.4,58,953/- was paid to OP1 on account of purchase of the said apartment, car parking space and club membership. As per Clause 2 of the Supplementary Agreement executed between the parties on 17/06/2016 the OPs are obliged to bear the equated monthly instalments (both the principal and interest) of the loan till the possession of the apartment is handed over to the complainants. But the OPs have not paid and/or reimbursed most of the interest and the entire principal of the loan amount to the complainants as agreed by the OP1 in the Supplementary Agreement. Complainants have repaid the entire sum of Rs.4,69,669/- to Central Bank of India in the meantime on account of the closure of the housing loan account due to non-payment by the OP1 to the complainants. As per Agreement for Sale OP1 is obligated to hand over the possession of the apartment to the complainants within 36 months and which may be extended to 42 months from the effective date. After execution the Agreement for Sale and payments the complainants noticed that the OPs have not started the construction work till date and 42 months has elapsed in September 2019. When the complainants communicated to the OPs, met them in their office, sent messages through whatsapp and emailed several times for early refund of the entire sum along with interest deposited with the OPs, notwithstanding the same the OPs have failed to refund the same. Thereafter the complainants haveagain sent a demand notice dated26/02/2021 to the OPs for refund of deposited money along with interest. In spite of receiving the same the OPs did not move. Till date the complainant neither got theflat nor got the refund of deposited money along with interest. Finding no other alternative complainant has filed the instant consumer complaint for getting reliefs.
Upon service of notice OPs have failed to file WV within stipulated period. On 21/12/2021 Ld. Advocate for the OPs appeared by filing vakalatnama and WV along with a prayer of acceptance the same which was registered as MA-90/2022. But as the stipulated period for filing WV had already been over therefore the said prayer has been rejected and the case do proceed ex parte against them vide order dated 24/02/2022. Aggrieved by the said order the OPs filed one RP before Hon’ble SCDRC being RP No. 33 of 2022 and also filed an application supported by an affidavit before D.C.D.R.C, Kolkata Unit-II praying for stay the proceedings of the C.C case No.294/2021 till the hearing of the above mentioned RP before Hon’ble SCDRC and the said application of the OPs was registered as MA-176/2022. Hon’ble SCDRC dismissed the said RP No.33 of 2022 filed by the OPs vide order dated 06/02/2023.
Complainants have tendered evidence supported by affidavit. We have gone thoroughly evidence adduced by the Complainants including documents on record and gave careful consideration to the arguments advanced by the Ld. Lawyers for the Complainants.
It is admitted fact that the complainant have executed an Agreement for Sale on 30/03/2016for hiring Housing Construction service from the OPs for one residential apartment being Unit No. B2 on the 2nd floor in Block- 9 situated in the IVY Greens II paying Rs. 12,76,309/-,out of total consideration amount of Rs. 34,74,400/-, vide Receipt No. MR-IVY2/00080/15-16 dated 14/12/2015 for Rs.2,58,750/-, Receipt No.MR-IVY2/00126/15-16 dated 16/01/2016 for Rs.5,22,882/-, Receipt No. MR-IVY2/00165/15-16 dated 16/02/2016 for Rs.35,724/-, Receipt No.MR-IVY2/00706/17-18 dated 18/11/2017 for Rs.73,632/-, Receipt No. MR-IVY2/00708/17-18 dated 18/11/2017 for Rs.3,85,321/-.It has been argued by the Ld. Advocate for the Complainants that after execution of sale agreement and payments OPs did not start the said project work although it is clearly mentioned in theAgreement for Sale that the possession of the said flat will be delivered within 36 months which may be extended to 42 months from the effective dates. But after passing of 42 months no construction work has been started in the said project. Photocopies of the E-Mail dated 07/02/2021 showing that the complainants requested the OPs to provide full refund as early as possible. Photocopy of the Legal Notice dated 26/02/2021 goes to show that the complainant made the abovementioned demand to the OPs through their Ld. Advocate. It is noted that after receiving the mails and legal notice OPs did not bother to reply the same by revealing any clear and transparent information about the booked flat. We think it is deficiency in service on the part of the OPs. The primary responsibility of a builder is to construct the flat and deliver the possession of the said flat to the purchaser within stipulated period as per Agreement for Sale for which the developer has received the money from the purchaser. If the builder does not deliver upon his contractual obligations, this would constitute deficiency on the part of the developer in rendering service to the consumer.
Moreover, a Supplementary Agreement was executed between the parties on 17/06/2016 wherein it is mentioned in the Clause 2 that:
In view of the agreements and on the request of the Purchaser the Seller has agreed to make payment or reimburse the applicable Pre-EMI till such time the possession of the Units/Apartments is handed over by the seller to the purchaser commencing from the date hereof.
Ld. Advocate for the Complainants alleged that OPs have not paid and/or reimbursed most of the interest and the entire principal of the loan amount to the complainants as agreed by the OP1 in the Supplementary Agreement. Photocopy of the letter dated 04/02/2020 sent by the Central Bank of India, Red Cross Branch/ Kolkata North, to the complainants show that complainants have repaid the House Building Loan A/C No: 4003240112 with uptodate interest on 08/11/2019 and the said bank has issued NOC in favour of the Complainants.
We have travelled through the documents on record and found that Complainants booked a flat in the said residential project of the OPs against Rs.12,76,309/-. But despite receiving of instalments the OPs have failed to start the construction work of the subject flat.Thus, this gesture of the OPs can be termed as unfair trade practice. OPs were under obligation to handover the subject the subject flat in favour of the Complainants within the stipulated period and failure on the part of OPs to handover the subject flat within the stipulated period tantamounts to deficiency in services on the part of the OPs. In this regard we are opined that, the complainant cannot made to wait indefinitely for possession of the flat, when there is absolutely no response from the OPs.
In the result, the consumer complaint is allowed on ex parte against the OPs with a direction to them to refund jointly and severally the deposited amount i.e. Rs.12,76,309/-with simple interest@ 8%p.a. from the respective dates of payment is made, together with litigation cost of Rs.10,000/ and Rs.20,000/- for harassment and mental agony to the Complainants .
This amount to be paid by the OPs jointly and severally to the Complainants within 45 days from the date of this order, failing which, the amount shall attract interest @12% p.a. for the same period.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
