Date of Filing : 11 February, 2022.

Date of Judgement : 03 July, 2023.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when (1) Sri Pinaki Das and (2) Sri Subhajit Das, herein after called the Complainants, 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 Complainants, 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, complainants entered into an Agreement for Sale on 05/07/2017 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 an open car parking space of area 12,5 sq. mtr.  Complainant paid Rs.4,27,789/- to the O. P. – 1 company through five cheques on different dates prior to execution of the agreement for sale dated 05/07/2017 and money receipts were given 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 complainants allege, after the expiry of two years when they found that there is no development in construction at the project site Complainant No. 1 sent letters to the O. P. – 1 company on 03/03/2020 & 27/06/2020 requesting to cancel his booking and refund of his entire payment of Rs.4,27,789/-.  In response, the O. P. – 1 company sent a letter on 27/07/2020 to the complainant No. – 1 stating their inability to refund the money paid due to lockdown and also requested for restitution in the project.  On 18/09/2020 he sent a formal letter for cancellation of agreement for sale requesting to refund his money.  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.4,27,789/- 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.

            Complainant filed copies of (i) Agreement for Sale dated 22/07/2017, (iii) five money receipts issued by the O. P. – 1 company dated 25/9/16, 15/10/2016, 12/4/2017, 12/5/2017 and 23/6/2017 and various correspondences through letters sent by the complainant and the O. P. – 1 company as stated earlier.

            Notices were served, after admission, to the O. Ps. Service of notices upon O. P. – 1 & 2 were 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 the complainants are 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 05/07/2017.  In this agreement the O. P. – 1 company is described as the Vendor and/or Developer/One Part and the complainant, together with his son Sri Subhajit Das, 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 and an open car parking space of area 12.5 sq. mtr. At the ground floor of the proposed building in Phase-I of the housing complex Prince Town  (2^nd Schedule) for a total consideration of Rs.11,93,005/- plus Rs.2,50,000/- for car parking space together with Rs.2,00,000/- as amenities charges totalling Rs.16,43.005/- excluding Service Tax & other Taxes (7^th Schedule). A payment of Rs.4,27,789/- by the purchasers/complainants has been acknowledged in the Memo of Consideration annexed with this agreement of which Rs.4,10,751/- is stated as the Principal amount and Rs.17,038/- 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 05/07/2017 – 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 27/07/2020 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 the 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 complainants found that there was no sign of development and no construction was made in the project site, they requested to refund their money on 03/03/2020. In their letter dated 20/11/2020 the O. P. – 1 company stated that their ‘file’ was 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 complainants to sign in the Agreement for Sale on 05/07/2017 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.4,27,789/- 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 but they prayed in their complaint for a compensation of Rs.5,00,000/-. 

            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 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 requested the O. P. – 1 company through his letter dated 03/03/2020 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 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 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.4,27,789/- to the complainant, as the O. P. – 1 company failed to comply with the agreement, so no question of deducting S. Tax amount arise.  We think that an interest @9% simple interest per annum on the sum paid by the consumer 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/93/2022 is allowed ex parte against all the Opposite Parties.

The Opposite Parties are directed jointly and severally to refund Rs.4,27,789/- 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.