Date of Filing : 11 February, 2022.

Date of Judgement : 03 July, 2023.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Sri Ramprasad Dutta, 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 01/09/2017 with the O. P. – 1 company for purchasing one self-contained 2BHK flat admeasuring 417 sq. ft. covered area on the 3^rd floor of the proposed building  at “Prince Town Platinum”.  Complainant paid Rs.2,68,000/- to the O. P. – 1 company through cash and a cheque on different dates prior to execution of the agreement for sale dated 01/09/2017 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 December, 2020.  But, as the complainant alleges, after the expiry of two years when the complainant found that there is no development in construction at the project site he sent an e-mail to the O. P. – 1 company on 05/09/2019 requesting to cancel his booking and refund of his entire payment of Rs.2,68,000/-.  In response the O. P. – 1 company sent an e-mail on 09/09/2019 to the complainant to formally file an application for refund and to comply with some formalities.  On 04/12/2019 he sent a formal letter for cancellation of agreement for sale requesting to refund his money.  But the O. P. – 1 company did not response for which on 14/01/2020, 5/3/2020 & 15/6/2020, complainant sent reminders which also yielded no result. Rather, through its letters dated 01/07/2020 and 27/07/2020 the O. P. – 1 company requested the complainant about their inability to refund and to reconsider for restitution in the project.  But the complainant remained strict to his decision and sent a letter dated 06/10/2020 requesting the O. P. – 1 company to refund his booking amount.  By a letter dated 20/11/2020 the O. P. – 1 company expressed their inability to refund due to COVID situation. By his letter and e-mail dated 11/03/2021 and 22/06/2021 respectively the complainant requested the O. P. – 1 company to refund his money with interest but this time also no fruitful result yielded.  He made a formal complaint before the Consumer Affairs Department of Government of West Bengal which also yielded no result as the OPs 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.2,68,000/- paid by him, (2) to pay Rs.2,80,000/- as compensation for inconvenience, harassment and mental agony and (3) to pay Rs.15,000/- as litigation cost together with other orders or directions as per law and equity.

            Complainant filed copies of (i) Agreement for Sale dated 01/09/2017, (iii) three money receipts issued by the O. P. – 1 company dated 12/09/2016, 25/09/2016 and 30/04/2017 and various correspondences through letters and e-mails 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.  Complainant then filed his Affidavit-In-Chief and ex parte argument was heard thereafter.   Complainant then filed a petition praying to treat his Affidavit-In-Chief as his 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 complainant for which he is entitled to get relief as prayed for.  Complainant personally contested this case.

DECISION WITH REASONS

            Let us begin our scrutiny with the Agreement for Sale dated 01/09/2017.  In this agreement the O. P. – 1 company is described as the Vendor and/or Developer/One Part and the complainant as the Purchaser/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 purchaser, the complaint herein, is going to purchase a self-contained residential 2BHK flat of 417 sq. ft. covered area (340 sq ft for the flat and 77 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.8,29,830/- plus Rs.2,00,000/- as amenities charges totalling Rs.10,29.830/- excluding Service Tax & other Taxes (7^th Schedule). A payment of Rs.2,68,000/- by the purchaser/ complainant has been acknowledged in the Memo of Consideration annexed with this agreement of which Rs.2,57,290/- is stated as the Principal amount and Rs.10,710/- as S. Tax amount. It is specifically stated in this agreement that the designated unit, the purchaser is 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 01/09/2017 – 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 December, 2020.  But in September, 2019 the complainant found that there was no sign of development and no construction was made in the project site. In their letter dated 20/11/2020 the O. P. – 1 company stated their inability to refund due to lockdown and also 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 01/09/2017 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. 2,68,000/- 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 complainant is entitled to get relief.  He is entitled to get back his money paid to the company.  He is entitled to get interest on his paid money as compensation though he prayed in his complaint for a compensation of Rs.2,80,000/-. 

            Now, let us discuss about the situation where the complainant himself has approached to cancel the agreement for sale.  Here, we see that the agreement was executed on 01/09/2017. It was assured that he would get possession of his subject flat within December, 2020 with major amenities.  But in September, 2019 complainant found that no development has been done in the project site, no construction has been started and that is why is requested the O. P. – 1 company through e-mail on 05/9/2019 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 01/09/2017, 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 December, 2020 – all these events lead 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 purchaser/complainant/consumer as defined under the Act, hence they are liable to compensate and the purchaser/complainant is entitled to get relief.  O. Ps. must refund the entire payment of Rs.2,68,000/- to the complainant. As the O. P. – 1 company failed to comply with the agreement, so no question of deducting S. Tax arises.  We think that an interest @9% simple interest per annum on the sum paid by the complainant to the O. P. – 1 company is enough as compensation.  The O. Ps. are liable to pay Rs.8,000/- to the complainant 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/91/2022 is allowed ex parte against all the Opposite Parties.

The Opposite Parties are directed jointly and severally to refund Rs.2,68,000/- together with 9% per annum simple interest thereon with effect from the date of last payment till this date to the Complainant within 60 days from this date.  The O. Ps. are also directed to pay Rs.8,000/- to the Complainant as litigation cost within the aforesaid period failing which the entire sum shall carry 9% interest p. a. till full and final payment.