Shyamal Kumar Ghosh, Member
The instant consumer case has been filed by the complainant against the opposite-parties praying for delivery of possession, execution and registration of the deed of conveyance, alternatively refund of amount of Rs. 14,52,050/-along with interest, compensation and cost.
The brief fact of the case is that complainant is an old aged widow and issueless. The complainant intended to purchase a flat measuring area about 900 sft. In this regard the complainant approached the op no – 1/ developer and the developer company assured the complainant to arrange a flat under the project viz. ‘MAYER BARI’. The total consideration amount has been fixed for Rs. 20,73,500/-. The complainant has paid advance amount of Rs. 8,00,000/- to the op developer. To that effect an agreement for sale dated 19/03/2014 has been executed between the parties. The complainant paid Rs 14,52,050/- (including Rs. 8,00,000/- towards an advance) to the op/developer on different dates. The op/developer promised to complete the said project viz. ‘MAYER BARI’ within time and handover the possession of the flat to the complainant within 15/04/2015. The developer did not start their project work. They have failed to complete their project work within time. The complainant sent a letter dated 01/11/2014 to the op/developer with a request for handing over the possession of the said flat in question. But the op /developer by sending a letter dated 18/11/2014, demanded further balance consideration amount from the complainant. The complainant on several occasion requested the op/developer to handover the possession of the flat but they did not pay any heed. The complainant visited the project spot. But no project construction was started. Practically the project work was abandoned. There was no chance to handover the possession of the flat in question to the complainant. There is a gross negligence and deficiency in service on the part of the ops. Having no other alternative, the complainant knocked at the door of the Commission for getting relief or reliefs against the opposite-parties.
No written-version was filed by the ops and as such the case runs ex-parte against the opposite-parties.
The learned counsel for the complainant argued that there is a clear gross negligence and deficiency in service on the part of the ops as in spite of payment of Rs. 14,52,050/- to the developer out of total consideration amount of Rs. 20,73,500/- no construction work has been done by the developer within the stipulated period of time. The complainant on several occasions, requested the ops to handover the possession of the flat in question but in vain. Ld counsel further submitted that at present there is no existence of the project work viz. MAYER BARI as at the proposed site no construction work has been found. There is no possibility to handover the said flat in habitable condition to the complainant in near future and as such ld counsel has prayed for refund of amount of Rs. 14,52,050/- with interest.
Heard the learned counsel for the complainant. Considered his submissions.
Perused all relevant documents and papers.
Before explaining the other issues involved in the complaint case, we try to decide point no – 1 whether the instant complaint case falls well within the purview of Consumer Protection Act or not as well as point no – 2 whether there is any gross negligence or deficiency in service on the part of ops in the instant case or not.
Regarding the payments made by the complainants, we take the following notes:-
It is admitted fact that the complainant has already paid Rs. 14,52,050/- to the op/developer on the different dates out of total consideration amount of Rs. 20,73,500/- in respect of flat no – 3 & 4 at the first floor which is clearly revealed from the letter dated 18/11/2014 written by op/developer/SOLACE MANAGEMENT CONSULTANCY SERVICES(P) LTD.
The details payments are as follows:-
Dated 10/03/2014 cheque no-774004 Rs. 30000.00
Dated 23/05/2014 cheque no- 774007 Rs. 2,07,350.00
Dated 07/03/2014 pay in slip issued by the op/developer Rs. 8,00,000.00
Dated 01/08/2014 cheque no-774011 Rs. 2,00,000.00
Dated 19/07/2014 cheque no-774012 Rs. 2,14,700.00
Total amount Rs.14,52,050.00
From the above table, we are also satisfied that out of total consideration amount of Rs. 20,73,500/- the complainant has already paid Rs. 14,52,050/- as part consideration amount to the op/developer. So, the complainant comes well within the purview of the definition of the ‘consumer’ as per Consumer Protection Act, 2019. So the point no-1 is decided as per above observations.
Now, it is pointed out that no written version has been filed by the ops. Though the opportunity has been given to them for filing written version yet they have failed to file the same and as such the allegations stated in the complaint/petition remains unchallenged. Regarding this matter, we can safely state that on failure to file written version by the ops tantamounts to the admission of the allegations stated in the complaint/petition. The letter dated 01/11/2014 written by the complainant and advocate’s letter dated 01/12/2017 clearly reveal that there is continuous negligence and deficiency in service on the part of the ops. The agreement for sale dated 19/03/2014 clearly speaks in page no – 9 that subject to force majeure, within 15thApril 2015 from the date of signing of this agreement, the owner/developer shall make the flat and /or unit habitable and give notice to the purchaser/s and the purchaser/s shall within 30 days of date of the notice, take possession of the flat and / or unit. The said agreement for sale in page no – 9 also speaks that within thirty days from the date of notice being given by the owner/developer to the purchaser/s regarding completion of the said flat and /or unit the purchaser/s shall take over the possession of the said flat and /or unit upon making payment of all amounts agreed to be paid by the purchaser/s. But it is very unfortunate that as per agreement the ops have failed to complete the construction work within the stipulated period of time. The complainant is ready to pay the balance rest amount to the op/developer. But the construction work is still pending. So, the worst situation mentioned above clearly connotes that there is no chance for complainant to get the flat in habitable condition. It is not our expectation that the complainant by any means suffers from loss of money and time for the breach of the agreement on the part of ops. Under the above facts and circumstances, the gross negligence and deficiency in service on the part of the op/developer is proved and the complainant is entitled to get relief as prayed for only against OP/developer. The point No. 2 is thus decided as per above observations.
In this respect we can reliance upon some cited case laws which are as follows:-
In Suniti Kumar Bhat and others –vs- Unitech Acacia Projects Pvt Ltd and others reported in 2018(3) CPR795(NC), where the Hon’ble National Commission held that when the builder fails to construct the flat on time, he is entitled to pay compensation in the form of interest and cost of litigation.
In Rear Admiral (Retd) Kirpal Singh –vs- M/S- Unitech Limited reported in 2018(3)CPR 767(NC), where the Hon’ble National Commission decided that when the terms of the contract are not adhered to, builder is liable to refund the amount paid with interest and costs.
In Fortune Infrastructure and another vs Trevor D’lima and others reported in (2018) 5 SCC 442, the Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of the amount paid by him along with compensation.
Keeping in view of the above observations, there is no hesitation to hold that there is a gross negligence and defic
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iency in service on the part of op/developer (M/s Solace Management Consultancy Service (P) Ltd. represented by Director namely Sri Aditya Mukherjee) and as such the op/developer is directed to refund the amount of Rs. 14,52,050/- fourteen Lakh fifty two thousand fifty only to the complainant within the 60 days from the date of this order. The op/developer is further directed to pay compensation of Rs. 1,00,000/- and litigation cost of Rs. 10,000/- to the complainant within the stipulated period of time in default the complainant is at liberty to put the case in execution. No order is passed against OP Nos. 2,4 and 5 as they did not receive any consideration amount from the complainant. The consumer case is thus allowed ex-parte against OP No. 1/developer and dismissed ex parte against OP Nos. 2, 4 and 5 and disposed of as per above observations.