SAMIKSHA BHATTACHARYA,  MEMBER 

The instant case has been filed by the complainant u/s17(1)(a)(i) of C.P. Act 1986 against the OPs alleging deficiency in service.

The facts of the case in brief are that OP No.1 is a promoter-cum-developer and the OP No.2 is the owner of the property being premises No.12/12, Ishan Ghosh Road, Kolkata – 700 008, P.S.- Haridebpur and the complainant wanted to purchase a flat for their own use and occupation.  Upon perusal of documents and verbal assurance given by OPs No. 1 & 2, the complainant decided to book a flat in the project developed by OP No.1 on the land of OP No.2 by paying a booking amount of Rs.25,000/- and Rs.50,000/- on 2^nd July, 2014 and 14^th July, 2014 respectively.  On December 14, 2014, the complainant entered into an agreement for sale with the OPs No. 1 & 2 to purchase a flat, being No. B2, on the 2^nd floor,  measuring around 780 sq. ft. in the said premises at a price of Rs.15,00,000/-.  As per agreement, it was stated that the flat would be handed over within 15 months from the date of agreement failing which the defaulter party would be liable to bear interest @ 12% per annum on the total amount of consideration along with compensation.  After such assurance, the complainant made a payment of Rs.3,00,000/- as own contribution and Rs.6,00,000/- from OP No.3 / Bank as loan.  Thus, the complainant paid the advance amount of Rs.9,00,000/- being 60% of the total cost of the property.  The work flow at the Ishan Ghosh Road Project was not continuous and uninterrupted since inception and it had been stopped and delayed many times with a plea for labour problem. On July 27, 2016, the Complainant wrote a letter to the OP No.1 to cancel the agreement and requested him to refund the entire payment made by the complainant with interest @9% p.a.  It was also made clear by the complainant that the OP No.1 was required to pay that the total principal loan amount disbursed, i.e. Rs.6,00,000/- and the interest amount paid to the bank till that time.  As, the OP No.3 charged interest on daily basis.  the OP No.1 was requested to pay the interest till the day the loan account gets closed in the system.  On July 12, 2017, the complainant again sent a letter to OP No.1 stating that he had paid Rs.9,00,000/- which was 60% of the total cost of the property.  The complainant further stated that not only had the 15 months time frame of handing over the flat as per the sale agreement been crossed but also the EMI of Rs. 13,119/- of the sanctioned loan amount from the OP No.3 Bank had also started being deducted from his account since last seven months and he had to pay the interest amount of Rs.5,000/- (approximately) per month during the moratorium period for almost the last one year.  The complainant stated that he expected a reply from the OP No.1 within 15 days from the date of receipt of his letter informing him a fixed date of handing over the said flat along with compensation and penalty as per Agreement. But the OP No.1 did not reply to the same.  On July29, 2017 the complainant again sent a letter to OP No.1 stating that he had paid Rs.9,00,000/- which was 60% of the total cost of the property. 

Again the complainant sent the letters on 29.07.2017, 23.08.2017.  On 02.09.2017, OP No.1 replied the letter dated 12.07.2017 sent by the complainant.  On 20.09.2017, the OP No.1 through a letter replied to the letters sent by the complainant stating that OP No.1 is not able to complete the construction work and he was not sound in financial position.  He was refunding the booking amount of Rs.3,00,000/- by cheque and the remaining amount of Rs.6,00,000/- would be returned by 31.12.2017 to the complainant’s banker and the interest amount would be refunded after discussion with the complainant and the OP No.1.

Finding no other alternative,  the complainant issued a letter dated December 12, 2017 through  his Advocate stating that loss  suffered by the complainant  due to  malafide intention of the OP No. 1 to  deceive the complainant. The loss suffered by the complainant along with the break ups were mentioned in  detail and an ultimatum of a fortnight was given to the OP No. 1 to pay the amount of Rs.30,07,723/- being the  sum total of the   loss as in the letter  dated September 20, 2017 failing which the complainant  would take legal step. The entire matter was informed to OP No. 3. The complainant has faced severe mental agony and pain by such deficiency in service of the OP No. 1. Finding no other alternative, the complainant has filed the instant complaint  praying for direction upon OP No. 1  to refund the sum of Rs.11,73,206 being the amount  receivable against Rs.9,00,000/-  already paid along with the refund of sum of Rs.18,34,517 being the amount receivable against the  loss of rent, penalty and compensation i.e. refund of Rs.30,07,723/- being the sum total loss.

Though the notice  was served upon Ops No. 1 & OP No. 2, none of them appeared before this Commission to contest the case. Therefore, the case was  proceeded  ex parte against OP No. 1 & OP No. 2. 

Only the OP No. 3  appeared before this Commission and filed their written version. In their written version, OP No. 3  more or less supported the grievance of the complainant. The OP No. 3 has admitted that the complainant applied for a  term loan before the OP No. 3/bank. The complainant submitted   all the necessary documents before the OP No. 3 and the OP No. 3 sanctioned  the said term loan amounting to Rs.12,00,000/- in favour of the complainant on 18.12.2015. After  sanctioning the loan amount, the OP No. 3 disbursed  Rs.6,00,000/-  in favour of the developer/OP No. 1.   After disbursement of  such amount of Rs.6,00,000/-, the complainant  paid regular EMIs of the loan I,e., Rs.13,119/- to the OP No. 3 till  27.04.2018. After disbursement of the said  loan amount of Rs.6,00,000/-, OP No. 3 charged the interest of loan amount on daily basis and the complainant paid the EMI regularly. The OP No. 3 stated that the complainant has paid the EMIs  regularly up to  the month of April, 2018 since the  written version was filed on 09.08.2018.

On the date of  final hearing,  only Ld. Advocate for the complainant was present and filed BNA. None appeared on behalf of either  of the Ops to argue the matter.

Upon hearing  the Ld. Advocate for the  complainant and on perusal of   entire materials on record, it is evident from the record that the complainant  entered into  an agreement for sale on 14.12.2014 with the OPs No. 1 & 2 to purchase  a flat being No. B2 on the 2^nd floor, measuring around 780 sq. ft. in the premises in question at a price of Rs.15,00,000/-. Before entering  into the agreement for  sale dated 14.12.2014,  the complainant  paid Rs.25,000/- on 2^nd July, 2014 and Rs.50,000/- on 14^th July, 2014. In the agreement for sale dated 14^th December, 2014 under the heading “memo of consideration”, it is written  that Rs.3,00,000/- has been received from the purchaser on behalf of the OP No. 1.  Thereafter,  the complainant  applied for a loan to OP No. 3. From the written version of OP No. 3, it is admitted  fact that OP No. 3 sanctioned Rs.12,00,000/- out of which Rs. 6,00,000/- was disbursed in favour of OP No. 1 / Developer. As per agreement, the flat was to be delivered to the complainant within 15 months from the date of agreement failing which the defaulter  party  would be liable to pay  interest  @ 12% p.a. on the total amount of consideration  along with compensation. On July 27, 2016, the complainant wrote a letter to the OP NO. 1  since  the flat was not delivered to the  complainant. The agreed period for delivery of the possession of the flat  was already over, therefore the complainant  sent  several letters to the OP No. 1 but the OP No. 1 did not bother to reply the same. However, the  OP No. 1 sent a letter to complainant on 02.09.2017 stated that he was returning Rs.3,00,000/- to the complainant which was paid by the complainant and Rs.6,00,000/- would be paid to the banker since  the bank had  disbursed the loan amount of  Rs.6,00,000/- to the OP No. 1. Though the bank disbursed the amount ofRs.6,00,000/- to the developer/OP No. 1, the loan amount was sanctioned in the name of the complainant and for that reason the complainant was paying the EMIs regularly. Therefore, the complainant protested to accept Rs. 3,00,000/- and e never placed the cheque before any  bank for encashment  and the same has been kept in his custody.

The complainant has filed the original cheque before this Commission at the time of final hearing which is kept with  the record.

From the letter  dated 02.09.2017  issued by the OP No. 1 to complainant. It is crystal clear  that the OP No. 1 has received Rs. 9,00,000/- for the flat in question which was purchased by the complainant. In that letter, OP No. 1has also submitted that due to some unavoidable circumstances, the OP No. 1 could not able to complete the construction work as per agreement  entered between  the parties. But the OP No. 1 had not mentioned any unavoidable circumstances which prevented him to complete the construction work. What circumstances led him to financial crisis is also not clear. Moreover, it is  astonishing that the OP No. 1 wanted  to refund  Rs.6,00,000/- to the bank. The OP No. 1 knew it very well that Rs.6,00,000/- was  disbursed to him on basis of the sanctioned amount  of the loan account  of the complainant. For  the loan  account being No.  1662300500131, the complainant is paying the EMIs regularly. In support of his argument, the Ld. Advocate  has submitted the bank statement  in regard to the loan account of the complainant towards regular payment of the EMIs.  Till date OP No. 1 has not taken any initiative to refund the Rs.6,00,000/- to the complainant along with the Rs.3,00,000/- which was not encashed  and the cheque is lapsed as on date.

The agreed date for delivery of the complete  flat  in question and to execute and register the same was 15 months / 455 days from the date of agreement  i.e., 14.12.2014. The Clause Nos. 4, 5 and 13 (internal page 8, 9 and 10) of Agreement for Sale dt. 14.12.2014 are reproduced as under : 

“4. That the Developer / First Party hereto undertake to handover and deliver the peaceful khas possession of the said property (as mentioned in the Second Schedule) into and in favour of the Purchaser or his nominee or assignee within a stipulated period i.e. 15 (months) (455) days from the date of this Agreement and / or execution of Deed.

5. That the Developer / First Party hereto undertake to execute and register proper Deed of Conveyance relating to the 2^nd. Schedule property hereby agreed to be conveyed in favour of the Purchaser herein within a period of 15 months from the date of agreement from the developer allocation.

13. In the event of any default on the part of the owner / developer, if the said new Building and the said Flat / Unit / Apartment are not completed within the stipulated period, the Purchaser shall be entitled to and are hereby authorized to claim interest at the rate of 12% per annum on the amount paid to the Vendor. “

Now, it is 2023, the OP No. 1 has not bothered to refund a single penny  to the complainant. The complainant has suffered severe mental agony and trauma since last six years, the OP No. 1/developer neither refunded the  amount nor took  any initiative to complete the project. The Complainant/ Consumer cannot wait for an inordinate period either with a hope of refund or with a hope for getting the complete flat in habitable condition in all respect. Therefore, we find  deficiency in service on the part of the OP No. 1 and as such, the OP No. 1 is liable to compensate the complainant.  As per agreement, the defaulter should pay interest  @ 12% p.a.  on the total amount of the consideration along with compensation.  But we think, for the finality of litigation,  it would be just and proper to award interest @ 8% p.a.  in the form of complainants  on the total amount  i.e., Rs.9,00,000/- which was paid on behalf of  the complainant.  Since the total amount has been paid to the OP No.1 only and the project has not been completed for the act of OP No.1 only, we are not inclined to pass any order against OP No.2 / Land Owner and OP No.3 / Bank.

In view of above, the complaint case succeeds.

Hence,

                                                 it is,

ORDERED

That the complaint case is allowed  ex parte against OP No. 1 and dismissed  ex parte against OP No. 2 and dismissed against  OP No. 3 on contest.

The OP No. 1 is directed to refund Rs.9,00,000/- (Rupees Nine Lakh) only to the complainant along with interest @ 8% p.a. from the date of each payment till its realization in the form of compensation within 60 days from the date of passing this order.

The OP No.1 is further directed to pay litigation cost of Rs. 10,000/- (Rupees Ten Thousand) only to the complainant within the aforesaid stipulated p[eriod. 

The complaint  case is, thus, disposed of, accordingly.