HON'BLE MR. KAMAL DE, PRESIDING MEMBER
Order No. : 19
Date : 23.12.2019
The instant case relates to an application U/Sec. 17 of C.P. Act, 1986 as amended.
Complaint case in nut-shell is that the OPs had executed an agreement dated February, 21 2014 for construction and purchase of one two storied Bungalow at Santinikatan being Unit No. 214, R.S. and L.R. Dag No. 162 (P) under L.R. Khatian No. 40 (Bidyadharpur Road) Mouza Khanjanpur, J.L. No. 35, P.S. Panrui, District Birbhum, Gram Panchayat Sattar, A.D.S.R. Bolpur, West Bengal, measuring 1344 sq. ft. built up a little more or less (as described in the schedule of the petition of complaint) at a total consideration of Rs. 2578785/-.
As per said agreement the said unit will be completed and possession will be handed over within 24 months from the date of booking. The complainant till date paid a sum of Rs. 14,43,468/- towards cost of construction/purchase of the said unit to the OPs.
Complainant also approached HDFC Bank for providing financial assistance for the balance amount of consideration on or about June, 2015 and the said amount of loan was approved in July 2015. The construction on part of the land was progressing but construction of another part of the land where the complainant’s unit was supposed to built was slowing down. On enquiry, the complainant was assured by the OPs that the said project will be completed within time. Bank pressurised the complainant to raise a demand of disbursement of the loan amount and accordingly, the complainant requested the Officers of the company to proceed for the processing of the approved loan by raising a demand on the Bank. The complainant at this stage came to know from the Officer of the OP 1 that conversion of another of land as required under law has not yet been completed. The construction of the said unit was not raised except the base structure on the ground floor. Time to hand over possession of the land passed by and there is no progress in the project from the ends of the OPs.
The complainant case is that he had invested a huge sum of money and cooperated with the OPs but the OPs with ill motive have consumed all funds.
It is also alleged that the OPs diverted the fund into their personal use and had defrauded the complainant and other customers in the project.
Complainant also came to know that the permission for conversion has been granted only for a part with the land and not for the whole of the plot of the land. Since July 2016, the OPs have even stopped communicate with the complainant and also not responding to the mails of the complainant.
The complainant, thereafter, by a notice dated 31.07.2017 through ANS Associations rescinded the contract and demanded repayment of Rs. 1443468/- with interest.
The OPs even after receiving the said demand letter failed and neglected to pay the sum as per the demand letter.
Complainant has alleged deficiency-in-service and unfair trade practice against the OPs. Hence, this case.
Summons were sent to this Commission by registered speed post with A/D and subsequently newspaper publication was also made but the OPs did not enter into appearance. The case has proceeded ex-parte against the OPs.
Points for decision
- Whether the case is maintainable in fact and in law ?
- Whether the complainant has any cause of action to file the case ?
- Whether the complainant is entitled to get a relief as prayed for ?
Issue No. : 1
We have perused the pleadings in the petition of complaint. It appears that the case relates to housing construction by the OPs regarding deficiency-in-service and unfair trade practice.
The complainant appears to be a consumer under the definition of Consumer Protection Act. The schedule property is lying and situated within the jurisdiction of the Hon’ble Commission. This Commission has also pecuniary jurisdiction to entertain the case as the complainant was prayed for a relief for payment of Rs. 25,43,468/-.
This Commission has pecuniary or territorial jurisdiction to try adjudicate the instant case.
This issue is that decided in favour of the complainant.
Issue Nos. 2 and 3 :
Both the issues are taken up altogether for discussion for the sake of brevity and convenience.
OPs 1 and 2 being India Green Reality Private Limited and Amitava Samanta, Director of OP 1 respectively had not entered into appearance despite notices served upon them.
We have perused the photocopy of the agreement for sale, photocopies of payment receipts, photocopy of booking amount receipt, photocopy of conversion of plot issued by Collector, DL & L.R.O., Birbhum, photocopy of legal notice, photocopy of postal receipt of legal notice and other documents on record.
It appears that the complainant had paid earnest booking money to the tune of Rs. 3,86,818/- and, thereafter, paid part consideration from time to time totalling to Rs. 14,43,468/-, as part payment of the full consideration Rs. 2578785/-. It appears that OP failed and neglected to complete the project as per terms of the agreement for sale dated 20.02.2014 and consequently failed to keep all other obligations and promise made out in the said agreement. As per clause 7 of the Agreement for Sale, the OPs were obligated to hand over the completed project to the complainant within 24 months from the date of the agreement or booking i.e. 20.02.2016. OPs failed to complete the project within the scheduled time and even till the filing of the case or even, thereafter.
It also appears from the complaint petition that OPs failed to obtain conversion certificate of the land from ‘Sali’ to ‘Home stead’ in order to proceed with the construction. From the relevant documents it appears that only a small part (1.49acre) of the total project of land (20 bigha is equal to 6.611 acre) was permitted for conversion from ‘Sali’ to ‘Home stead’.
The complainant also could not avail the benefit of the housing loan which was applied by him and sanctioned due to stoppage of progress of the project.
The part of the project including the portion of the complainant house come to a complete halt.
It appears that the project is far from completion and OPs also failed and neglected to pay back or refund the money paid by the complainant as advanced from time to time constituting part payment of the full consideration money in gross violation of the clause 11 of the said Agreement for Sale.
It appears that the OPs proceeded to collect fund for the project from the complainant without having necessary statutory clearance. It is apparent that whole project was a sham. Such gesture as the part of the OPs reflect indulging in unfair trade practice. There is clear and severe deficiency in service by the OPs causing to tremendous mental agony and loss, injury to the complainant.
We think that in the fitness of things and since the project is far from completion, the OPs should be directed to refund the money to the complainant with compensatory interest and compensation.
None came from the side of the OPs to contest the case or to challenge the affidavit of evidence of the complainant.
The affidavit of evidence of the complainant remains unchallenged and uncontroverted. As the evidence of the complainant goes unchallenged and uncontroverted and having regard to the materials and documents on record, we think that the complainant is entitled to get a decree as prayed for.
Hence,
Ordered
That the instant case being No. CC/7/2018 be and the same is decreed ex-parte but on merit.
OPs are directed to refund an amount of Rs. 1443468/- along with interest @ 12% per annum to the complainant with effect from 01.11.2013 till refund within 45 days from the date of this order.
OPs are also directed to pay an amount of Rs. 2,00,000/- (Rupees Two Lakhs only) to the complainant on account of causing mental agony, harassment, pain, suffering apart from litigation cost of Rs. 20,000/- within the said period, in default complainant will be at liberty to put the decree into execution U/S. 27 of C.P. Act, as amended.
Let a copy of this order be supplied to the parties free of cost.
