Date of Filing : 11 February, 2022.

Date of Judgement : 12 July, 2023.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Sri Anup Kumar Hati, herein after called the Complainant, filed a complaint under Section 35 of the Consumer Protection Act, 2019, herein after called the said Act, against (1) M/s. Usashi Realstates Pvt. Ltd., (2) The Managing Director of M/s. Usashi Realstates Pvt. Ltd. and (3) Mr. Supriya Patra, hereinafter called the Opposite Parties or O. Ps., alleging deficiency in service occurred from the part of the O. Ps.

            The facts, as stated in the complaint and emerged from the documents attached with it, are that the Complainant, being interested to purchase a flat, after seeing the advertisement of the O. P. – 1 company that they were going to develop a 870 decimals of land purchased by them lying and situated at Mouza – Hatishala, within the Police Station – Kolkata Leather Complex, by way of Housing Projects named and styled as “Usashi Prince Town Platinum”, approached the O. Ps. intending to purchase one residential flat in the project.  After being preliminary satisfied with the assurance given by the developer/company about the project and the desired flat, complainant entered into an Agreement for Sale on 22/07/2017 with the O. P. – 1 company for purchasing one self-contained 3BHK flat admeasuring 599.5 sq. ft. covered area on the 3^rd floor of the proposed building  at “Prince Town Platinum” together with a covered car parking space of area 12,5 sq mtr.  Complainant paid Rs.3,80,000/- to the O. P. – 1 company through a DD and a cheque on different dates prior to execution of the agreement for sale dated 22/07/2017 and money receipts were given to him for such payments. As per the agreement, the O. P. – 1 company was to complete the project within 40 months, i. e. within November, 2020.  But, as the complainant alleges, after the expiry of two years when the complainant found that there is no development in construction of at the project site he sent letters to the O. P. – 1 company on 05/03/2020 & 27/06/2020 requesting to cancel his booking and refund of his entire payment of Rs.3,80,000/-.  In response the O. P. – 1 company sent a letter on 04/08/2020 to the complainant stating their inability to refund the money paid and also requested for restitution in the project.  On 10/09/2010 he sent a formal letter for cancellation of agreement for sale requesting to refund his money with 8% interest thereon.  But the O. P. – 1 company could not refund, instead on 20/11/2020 the O. P. – 1 company sent a letter expressing their inability to refund the money due to lockdown and prayed for some time for the refund. Complainant made a formal complaint before the Consumer Affairs Department of Government of West Bengal which also yielded no result as the O. P. – 1 company did not participate in their process. Ultimately, seeing no other alternative, the complainant filed this instant complaint before this Commission praying to direct the O. Ps.: (1) to refund Rs.3,80,000/- paid by him, (2) to pay Rs.5,00,000/- as compensation for inconvenience, harassment and mental agony and (3) to pay Rs.10,000/- as litigation cost together with other orders or directions as per law and equity.

            Complainants filed copies of (i) Agreement for Sale dated 22/07/2017, (iii) two money receipts issued by the O. P. – 1 company dated 27/10/2016, 25/09/2016 and 30/04/2017 and various correspondences through letters made by the complainant and the O. P. – 1 company as stated earlier.

            Notices were served, after admission, to the O. Ps. Service of notice upon O. P. – 1 & 2 was  satisfactory on the first occasion whereas for O. P. – 3 service of notice was satisfactory after third attempt. But none appeared before this Commission to contest the case nor any written version were filed by any of them within the stipulated time period for which the case ran ex parte against all of them.  Complainants then filed their Affidavit-In-Chief and ex parte argument was heard thereafter.   Complainants then filed a petition praying to treat the Affidavit-In-Chief as Brief Notes of Argument.  We have now come to the position to deliver the Final Order in this case.  We have to decide whether the O. Ps. are deficient in rendering proper service to the complainants for which they are entitled to get relief as prayed for.  Complainants personally contested this case.  Be it mentioned here that Original complaint was filed mentioning only Complainant No. 1 in the Cause Title. While finalising the order to be delivered on 03/07/2023 it was detected that the Agreement for Sale mentioned two Purchasers’ name for which an amendment was felt necessary.  Accordingly Complaint Petition has been Amended by incorporating Complainant No. 2 in the Cause List. Now we are proceeding with our discussion.

DECISION WITH REASONS

            Let us begin our scrutiny with the Agreement for Sale dated 22/07/2017.  In this agreement the O. P. – 1 company is described as the Vendor and/or Developer/One Part and the complainant No. 1, together with his son Sri Ayan Hati, as the Purchasers/Other Part.  In this agreement it is stated that the O. P. – 1 company is going to construct a housing project titled as Prince Town Platinum by developing a land of 870 (proposed) decimal lying and situated in Mouza – Hatishala, J. L. No. – 9, Paragana – Kalikata, comprising various Touzi Nos. and Khatian Nos. under P S – Kolkata Leather Complex, within the limits of Beonta 2 No. Gram Panchayet, which were acquired/purchased by the company.  It is stated in this agreement that the purchasers are going to purchase a self-contained residential 3BHK flat of 599.5 sq. ft. covered area (530 sq ft for the flat and 69.5 sq ft for common area) on the 3^rd floor of the proposed building in the housing complex known as Prince Town Platinum (2^nd Schedule) for a total consideration of Rs.11,93,005/- plus Rs. 3,50,000/- for car parking space together with Rs.2,00,000/- as amenities charges totalling Rs.17,43.005/- excluding Service Tax & other Taxes (7^th Schedule). A payment of Rs.3,80,000/- by the purchaser/ complainant has been acknowledged in the Memo of Consideration annexed with this agreement of which Rs.3,65,020/- is stated as the Principal amount and Rs.14,980/- as S. Tax amount. It is specifically stated in this agreement that the designated unit, the purchasers are going to purchase, will be completed within 40 months with major amenities from the date of execution of this agreement subject to force majeure. Details of common and specific amenities, rights, obligations, etc. are written in this agreement comprising of 26 pages which are not our concern. We are concerned about the progress of the project and whether any deficiency in service is occurred from the part of the O. Ps. We have not found any description of the manner of acquiring/purchasing of such a portion of land by the O. P. – company.  Such acquiring/purchasing must be before 22/07/2017 – the date of execution of the Agreement for Sale.  Here our attention goes to the Memorandum, bearing No. 243-LP, dated 20/01/2020, issued by the L & L R and R R & R Department, Govt. of West Bengal, annexed with the letter dated 01/07/2020 by the O. P. – 1 company, from which we find that the mutation of land records and conversion of land have been stopped within the jurisdiction of Bhangore – II Block in south 24 Paraganas district vide this Department’s Memorandum No. 420-LP, dated 03/02/2017, which were partially withdrawn w. e. f. 20/01/2020 except the cases of (i) Real Estate/Commercial Housing Project and (ii) Commercial complexes & other Private Sector Infrastructure Development Projects.  We do not know whether the Hatishala Mouza under Beonta 2 No. Gram Panchayet is within the jurisdiction of Bhangore – II Block or not as there is no documents have been put forward by the complainant in this regard.  The project was scheduled to be completed within 40 months from signing the agreement, as assured in this agreement, i. e. within November, 2020.  But when the complainant found that there was no sign of development and no construction was made in the project site he sent a letter for refund on 05/03/2020. In their letter dated 20/11/2020 the O. P. – 1 company stated that their ‘file’ is under process in the concerned BLRO and their construction was going on a slow space.  We cannot find any justification of their claim of construction as there is a bar in mutation and conversion imposed by an authority.  Besides, one can presume that within 2 months, i. e. within December, 2020, construction of a huge housing project cannot be completed.  Then a question arises in our mind: the Government Authority has stopped mutation and conversion w. e. f. 03/02/2017 and was continuing for commercial housing projects until 2020, then how the O. P. – 1 company allured the complainant to sign in the Agreement for Sale on 22/07/2017 knowing full well that mutation and conversion is not possible for the time being thereby construction of a housing complex cannot be made? Thus, the O. P. – 1 company acted illegally which can be termed as unfair trade practice under the C. P. Act, 2019 and for this reason they should compensate.  Complainant paid Rs. 3,80,000/- with an intention to purchase his desired residence and the O. P. – 1 company/developer failed to fulfil his intention though they had assured.  Thus a gross deficiency in rendering proper and desired service has been occurred from the part of the O. P. – 1 company/developer for which the complainants are entitled to get relief.  They are entitled to get back their money paid to the company.  They are entitled to get interest on the paid money as compensation though they prayed in the complaint for a compensation of Rs.5,00,000/-. 

            Now, let us discuss about the situation where the complainants themselves have approached to cancel the agreement for sale.  Here, we see that the agreement was executed on 22/07/2017. It was assured that he would get possession of his subject flat within November, 2020 with major amenities.  But till the end of 2019 complainants found that no development has been done in the project site, no construction has been started and that is why complainant No. 1 requested the O. P. – 1 company through his letter dated 05/03/2020 to refund his booking amount.  It is a settled principle that a buyer cannot be expected to wait indefinitely to get his flat from the developer.  Here, the agreement was made on 22/07/2017, complainant found no development in construction in the project site, the concerned authority has stopped mutation and conversion of land since 03/02/2017 and still continuing for commercial housing project till 2020, the O. P. – 1 company stated on 20/11/2020 that their ‘file’ is under process and progress in construction is slow, whereas it was assured in the agreement for sale that handover of the flat was expected within November, 2020 – all these events leads to the fact that claim of refund by the complainant is justified.

            So, considering all these aspects we held that the O. Ps. have not complied with the assurances agreed to be done by them as promised through the agreement for sale which constitute deficiency in rendering service to the purchasers/complainants/consumers as defined under the Act, hence they are liable to compensate and the purchasers/complainants are entitled to get relief.  O. Ps. must refund the entire payment of Rs.3,80,000/- to the complainants, as the O. P. – 1 company failed to comply with the agreement, so no question of deducting S. Tax amount can be allowed.  We think that an interest @9% simple interest per annum on the sum paid by the consumers to the O. P. – 1 company is enough as compensation.  The O. Ps. are liable to pay Rs.8,000/- to the complainants as litigation cost. 

            If the O. Ps. contested the case then there might be some contrary materials which could mend our minds to some other conclusions, but that has not happened.

Hence,

            it is

           ORDERED

That the Complaint Case No. CC/92/2022 is allowed ex parte against all the Opposite Parties.

The Opposite Parties are directed jointly and severally to refund Rs.3,80,000/- together with 9% per annum simple interest thereon with effect from the date of last payment till this date to the Complainants within 60 days from this date.  The O. Ps. are also directed to pay Rs.8,000/- to the Complainants as litigation cost within the aforesaid period failing which the entire sum shall carry 9% interest p. a. till full and final payment.