HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1.           The instant complaint under section 17 of the Consumer Protection Act, 1986 ( in short ‘the Act’) is at the instance of the complainant against the Opposite parties on the allegation of deficiency of services on the part of  the Opposite parties in a consumer dispute of housing construction.
2.           The facts of the complaint case in short is that Opposite party No. 1 is the Private Limited Company. The Opposite parties No. 2 & 3 are the representatives of the Opposite party No. 1 Company. The Opposite parties were going to construct a housing complex known as ‘Royal Enclave’, comprising the flat Units, car parking space, commercial spaces, Duplex Bungalow etc. at mouza Hatishala, J.L. No. 9, R.S. No. 31, Touzi No. 2999, comprised in R.S. Dag No. 1288, appertaining to R.S. Khatian No. 652 in the District of South 24 Parganas.
3.           The complainant wanted to purchase a residential flat and for which she and the Opposite parties entered into an agreement / Memorandum of Understanding on 25/01/2016.
4.           It was agreed that the complainant will purchase one 2 BHK flat having super built up area of 750 sq. ft. more or less. In this agreement dated 25/01/2016 it was agreed that the total consideration of the said flat was fixed at Rs.21,50,000/- (Rupees twenty one lakh and fifty thousand) only ( flat price plus car parking worth Rs. 3,50,000/-).
5.           It is the further case of the complainant that the complainant paid Rs.4,30,000/- (Rupees four lakh and thirty thousand) only to the Opposite parties No. 1,2 & 3 as advance payment to book the flat out of the said 21,50,000/-.
6.           Further case of the complainant is that it was agreed between the parties that the said flat will be completed by the Opposite parties within 42 months from the date of signing of this Memorandum of Understanding. It was further agreed that possession of the flat will be handed over to the complainant within the said stipulated time.
7.           Further case of the complainant is that the complainant did not find any progress in the development of the said project and by this time her mother-in-law has been diagnosed with a neuro disease. Due to urgency the complainant wrote a letter to the Opposite party No. 1 on 08/03/2017 for refunding the said advance as early as possible and the Opposite party No. 1 received the said letter on 08/03/2017.
8.           Further case of the complainant is that the Opposite parties did not take any steps and no progress or development was made for the development of the said project. As such, on 12/07/2019 the complainant wrote a letter requesting them for refund of the money as the money was needed due to the treatment of the mother-in-law of the complainant. The Opposite parties did not take any steps for the development of the project. The Opposite parties considered the letters sent by the complainant to them and being understood the deficiency in service even negligence, the Opposite parties refunded 1,10,000/- (Rupees one lakh and ten thousand) only to the complainant out of Rs.4,30,000/- (Rupees four lakh and thirty thousand) only.  The Opposite parties did not try to refund the balance deposited amount of Rs.3,20,000/- (Rupees three lakh and twenty thousand) only.
9.           In this regard, all her requests and persuasions went in vain. Hence, the complainant approached this Commission with a prayer for following reliefs viz. :-

“ Hence it is prayed that your lordship would be pleased to allow this complaint petition and be pleased to give direction upon the OPs to refund the balance deposited amount of Rs.3,20,000/- as they failed to provide service in favour of the complainant and be pleased to give direction upon the OPs to pay Rs.1,00,000/- as compensation for harassment both by mentally, physically and economically and also litigation cost of Rs.20,000/-.”

10. Despite service of notice the Opposite parties No. 1, 2 & 3 did not appear to contest the case. As such, the case was heard ex parte against the Opposite parties.
11. On behalf of the complainant the contents of the petition of complaint supported by affidavit and the documents annexed therewith was treated as evidence through affidavit.
12. I have considered the submission made by the Learned Advocate for the complainant and scrutinized the materials on record.
13. On perusal of the petition of complaint and the evidence on record, it transpires to us that the Opposite parties were going to construct a housing complex known as ‘Royal Enclave’ comprising the flat units, car parking spaces etc. in R.S Dag No.128, khatian No. 652 in the District of South 24 Parganas.
14. It also transpires that the complainant and the Opposite parties entered into an agreement / Memorandum of Understanding on 25/01/2016 and by this agreement the complainant booked one 2 BHK flat having super built up area of 750 sq. ft. more or less.
15. It also appears to us that at that time of the booking of the said flat the complainant paid Rs.4,30,000/- (Rupees four lakh and thirty thousand) only to the Opposite party No. 1 and the Opposite Party No. 1 received the said amount ( page No. 14 & 15).
16. It also appears to us that the Opposite parties did not take any steps for the development of the said project and as the Opposite parties did not take any steps for the development of the said project they refunded a sum of Rs.1,10,000/- (Rupees one lakh and ten thousand) only to the complainant out of the advance amount of Rs.4,30,000/- (Rupees four lakh and thirty thousand) only. It is not in dispute that the Opposite parties have failed to construct the building and to develop the said building and to deliver the possession of the flat to the complainant.
17. The facts and circumstances and materials on record, more particularly, relying upon the evidence on record, it is palpably clear that the Opposite parties could not keep their promise and, as such, they are deficient in rendering services towards a consumer.
18. In view of the above, the complainant is entitled to get relief.
19. In 2016 CPJ 328 (NC) Hon’ble National Commission held thus :-

“Para 9. As far as the allottees in tower E & F are concerned, they have already sought refund as an alternative relief, along with compensation under several heads. Therefore, we have no hesitation in holding that in the facts and circumstances of the case the allottees in both the complaints are entitled to refund of the money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them. They are also entitled to appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the opposite party to deliver possession of the flats booked by them. In this regard, it is to be kept in mind that a person books a residential flat for the purpose of having a roof over his head, and in the hope that on completion of the construction within the time promised by the builder he will be able to live in a house of his own. Therefore, he is bound to feel disappointed and frustrated when the builder does not deliver upon its promise for years together”.

20. In 2016(3) CPR 279 (NC) Hon’ble National Commission held thus –

“Para 10. Since the opposite party has failed to offer possession of the flat agreed to be sold to the complainants by the date stipulated in the Buyers Agreement in this regard and 5/6 years have already expired from the said committed date for delivery of possession. The complainants cannot be compelled to wait any more for the builder to deliver and they are entitled to seek refund of the money paid by them along with appropriate compensation.”

21. In view of the above decisions of the Hon’ble National Commission, we hold that the complainant is entitled to refund of the money paid by her along with appropriate compensation in the form of interest for the financial loss and for mental agony and harassment suffered by her on account of the failure of the  Opposite parties to deliver possession of the flat booked by her.
22. So, we hold that there is deficiency in service on the part of the Opposite parties in the matter of construction of flat and delivery of possession as per terms and conditions of the agreement. In the result, the Complaint case succeeds.

Hence,

ORDERED

23. That the complaint case No. CC 780 of 2019   be and the same is allowed ex parte against the Opposite parties. The Opposite parties are hereby directed to refund the amount of Rs.3,20,000/- (Rupees three lakh and twenty thousand) only to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the date of each payment till the date on which the entire amount along with compensation is paid, in the form of compensation.
24. The Opposite parties shall pay Rs. 10,000/- (Rupees ten thousand) only as cost of litigation.
25. The payment in terms of this order shall be made within three months from this day.
26. If the Opposite parties fail to comply with the direction made above within the period mentioned above, then the complainant is at liberty to get the order implemented with due course of law.
27. Let a plain copy of judgment be given to the petitioner free of cost and a copy also be served upon the Opposite parties by Registered post/ Speed post with A/D as early as possible.