SHRI REYAZUDDIN KHAN,MEMBER
This is an application U/s.35 of the C.P. Act, 2019.
The fact of the case in brief is that the above mentioned Complainants was looking for a good residential flat and at the same time the complainants came in contact with the OPs and executed an agreement for sale on 29.03.2016 to purchase a residential apartment numbered as C2 on the 2nd floor in Block 09 at IVY Greens II P.S- Rajarhat,Dist-North 24 Parganas,Chandpur Gram panchayat,Mouza,Sikharpur,Kolkata-7000135,measuring about a super built up area of 1040 sq.ft.along with covered car parking space and a club membership for a consolidated consideration amount of Rs,34,74,000/- (Rupees Thirty four Lakh Seventy four thousand) only by an application No.B-IVY2/00047/15-16.The complainants stated that a supplementary agreement was signed between the OPs on 17.06.2016. It is also submitted by the complainants that a house loan of Rs. 28,54,000/- was sanctioned to them from Central Bank of India, Red cross Branch and out of the said loan amount Rs. 3,24,355/- was paid to the OP-1 towards part consideration from the house loan account for the above mentioned apartment,car parking and club membership.As per the clause 2 of the supplementary agreement the OPs were oblige to bear the equated monthly installments of the loan till the possession of the apartment is handed over.The complainant has paid total amount of Rs,11,68,778/ including the housing loan of Rs,3,24,355/ on different dates.The complainant further stated that the OPs have not paid most of the interest and the entire principal of the loan amount of Rs,3,24,355/- to the Central Bank of India and in the meantime at the closure of the housing loan account the said total amount was paid by the complainant.There was no communication from the OPs since the date of subsequent payment , Even, no construction of work of the said project has been started after the expiry of 36 months later extended to 42 months and the said 42 months also lapsed in September,2019.It is under stood by the petitioners that the OPs have no intention of carrying out the construction of the said project in spite of accepting the sum of Rs. 11,68,778/- for the subject flat.The complainants met personally with the OPs,send watsapp messages,emailed several times for refund of the entire money along with interest. . Considering the conduct of the OPs the complainants have sent advocate legal notice on 26.02.2021 for refund of the entire sum of Rs,23,43,655/ with interest. The notice was received by the OPs on 27.02.2021 but the OPs have failed and neglected to return the aforesaid amount.There is gross deficiency in service and negligence on the part of the OPs since they have not constructed the building despite having received substantial amount is in utter violations of the terms and conditions of the agreement dated 29.03.2026.
Thus, the OPs have not discharged their obligations and misappropriated money of the complainants for their wrongful gain. Such acts and omissions of the OPs tantamount to unfair trade practice as well as cheating and fraud and for the misdeeds of the OPs the complainants have to bear the interests too for the aforesaid Home Loan. Finding no other way the complainants have approached the Commission for justice with relief as detailed in the complaint petition.
The OPs have contested the case by filing their Written Version contending inter alia that the complaint is not maintainable either in law or on fact,baseless,false and fabricated.The OPs stated that there has been economic slowdown in overall development in the infrastructure sector which adversely affected the progress of the project.The demonetization,the change in real estate law,and further the Covid-19 Pandemic delayed the project too. There is no specific reply of the present status of construction even after lapse of several years as on the date of filing the complaint. No document from any authority has been furnished to justify the inordinate delay in that respect. The WV as filed by the OPs on 18.10.2022 that has no basis and hence there is no leg to stand in the instant case.As the OPs have failed to refund the amount of the complainant and the complainant is in regular in touch with the OPs to get his amount back,hence this is a continue cause of action until the OPs refund the amount to the complainant. It is our considered view that the complaint is very much maintainable in the instant case under consumer Protection Act 2019.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs is deficient in rendering proper service to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainants are entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
We have travelled over the documents placed on record. The complainants have filed his Evidence supported by affidavit. The complainants have executed an agreement for sale on 29.03.2016 for purchase of a residential apartment as C2 on the 2nd floor in block 09 at IVY Greens II,P.S- Rajarhat,Dist-North 24 Parganas measuring about a super built up area of 1040 sq.ft.with covered car parking space and a club membership for a consolidated consideration amount of Rs,34,74,000/- by application No.B-IVY2/00047/15-16.The complainants availed of a housing loan of Rs 28,54,000/ from the Central Bank of India,Red Cross Branch .The complainants have paid a total amount of Rs,11,68,778 to the OPs out of which a loan from of Rs,3,24,355/ was paid to the OP1 on account of purchase of the said apartment where the OPs were oblige to bear the equated monthly installments of the loan till the possession of the apartment is handed over to the complainants. But the OPs have not started the construction of the subject flat citing several reasons after elapsed of the stipulated period of 42 months.
From the conduct and intention of the OPs regarding the completion of the project and negligence attitude on the part of the OPs,the complainants requested the OPs for refund of their deposited money through emails,letters.The OPs failed to refund the entire amount with interest.The OPs failed to discharge their contractual obligations regarding payment of the said amount and making unnecessary delay on the part of the complainants.The OPs are fully aware that they are liable to pay the deposited advance amount including interest thereon to the complainants. Complainants deposited his hard earned money with the OPs. The OPs deliberately make their illegal gains and to deprive the complainant from his lawful right withheld the deposited amount. Thus, the OPs have adopted unfair trade practice, and in fact, withhold the deposited amount of Rs. 11,68,778/( Rupees Eleven Lakh Sixty Eight Thousand seven hundred seventy eight) only along with accrued interest. Complainant have filed his affidavit reaffirming the allegations. Thus, it stands proved that despite of having received Rs,11,68,778/( Rupees Eleven Lakh Sixty Eight Thousand seven hundred seventy eight) only the OPs have failed to refund the said amount. In absence of any explanation for failure to comply with the stipulation of refund of deposited amount, we have no hesitation in concluding that the OPs have committed deficiency in service and also has indulged in unfair trade practice
The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainants have deposited Rs11,68,778 to the OPs for purchase of the subject flat with covered car parking and membership of the club but he was compelled to cancel the same and requested for refund of the amount.The OPs failed and neglected to pay deposited advance amount Rs11,68,778/ for which they have to pay to the complainant and the act and conduct of the OPs are clear case of deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not deposited/paid his money with the OPs, he would have invested the same elsewhere. The complainants cannot be wait indefinitely to get the said amount. The complainants have suffered mental agony, pain and harassment. It is settled principle of law that the compensation should be commensurate with loss of suffered and it should be just, fair and reasonable and not arbitrary. To get relief, the complainants have to wage a long drawn and tedious legal battle. In these circumstances, the complainants are entitled to refund of deposited amount along with compensation. and interest
In this regard a Judgement of the Hon’ble Delhi State Consumer Disputes Redressal Commission under reference 2022(2) CPR 137(Del.) in the matter Mrs.Jasveen Kaur v. Parsvnath Developers Ltd., Complaint Case No.1618 of 2016 decided on 05.05.2022 is also found relevant to the present context. The Hon’ble SCDRC has been pleased to observe in Para 34 of the said Judgement “ 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 fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service.”
Keeping in view of the above cited Judgments and based on the fact and circumstances of the present case,we are of the considered opinion that the Complainants have established the case against the OPs.
In the result, the Consumer Complaint succeeds .
Hence,
Ordered
That the complaint case be and the same is allowed contested against the OPs.
1.OPs are directed to refund the deposited advance amount Rs,11,68,778/-( Rupees Eleven Lakh Sixty Eight Thousand seven hundred seventy eight) only along with interest @ 9% PA from the date of payment till its realization..
2. The OPs are further directed to pay Rs.1,00,000/- (Rupees One Lakh)only to the complainants as compensation for causing harassment and mental agony to the complainants
2.OPs are further directed to pay Rs. 15,000/- (Rupees Fifteen thousand) only as litigation cost.
Complainant put the order into execution, if the OPs transgresses to comply the order according to Consumer Protection Act, 2019 after the expiry of 60 days.
