The instant complaint under Section 17(inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of an intending purchaser against one Private Limited Company and its Directors on the allegation of deficiency of services in a dispute of housing construction.
In a capsulated form, complainant’s case is that on 05.09.2016 he entered into an agreement with the Opposite Party No. 1 company to purchase one self-contained residential flat measuring about 750 sq. ft. super built up area in Priyamvada-14 on the 2nd floor and one covered car parking space in the complex christened ‘Royal Enclave’ lying and situated in R.S. Dag No. 1322, R.S Khatian No. 437 of Mouza- Hatisala, J.L No. 09, R.S. No. 31, Touzi No. 2999, P.S.- Kolkata Leather Complex (KLC), Dist- South 24 Parganas within the local limits of Beonta-II Gram Panchayat at a total consideration of Rs. 22,50,000/-. The complainant has stated that he has already paid Rs. 5,33,000/- to the developer on diverse dates as part consideration amount towards said total consideration amount. The complainant has also stated that the developer undertook to issue notice of possession asking the complainant to take possession of the unit within 15 days of issuance of notice but the days rolled on, the OPs did not take any steps to handover the flat in question. Ultimately, on 26.02.2018 the OPs wrote a letter to the complainant stating that they have been suffering from unnecessary difficulties and requested the complainant to choose an alternative option at New Town Action Area-III in Mouza- Hudrait. Considering the attitude and intention of the OPs, the complainant decided to take refund of the amount and submitted an application on 05.04.2018 to that effect but till now the OPs did not refund the said amount. Hence, the complainant approached this commission with prayer for following reliefs, viz.- (a) to direct the Opposite Parties Jointly and/or severally to refund the amount of Rs. 5,33,000/-; (b) to direct the OPs Jointly and/or severally to pay an amount of Rs. 2,50,000/- or bank interest over the amount of Rs. 5,33,000/- from the date of receiving the said amount till the realisation as compensation; (c) to direct the OPs jointly and/or severally to pay Rs. 25,000/- as litigation costs.
The notice issued upon the Opposite Party No. 2 has been duly served, who is a Director of OP No.1company. Despite service of notice the Opposite Parties have neither appeared nor filed written version and as such in view of decision of Three Judge Bench of Hon’ble Supreme Court reported in 2016 (1) Supreme 319 (New India Assurance Limited –vs- Hilli Multipurpose cold storage Pvt. Ltd.) the OP Nos. 1 to 3 were prevented from filing written version.
The overwhelming evidence on record make it quite clear that on 05.09.2016 the complainant being an intending purchaser had entered into an agreement with OP No. 1company represented by OP Nos. 2 and 3 to purchase of one self-contained flat measuring about 750 sq. ft. super built up area in Priyamvada-14 on the 2nd floor and one covered car parking space in the complex Christened ‘Royal Enclave’ lying and situated at R.S. Dag No. 1322, R.S Khatian No. 437 of Mouza- Hatisala, J.L No. 09, R.S. No. 31, Touzi No. 2999, P.S.- Kolkata Leather Complex (KLC), Dist- South 24 Parganas within the local limits of Beonta-II Gram Panchayat at a total consideration of Rs. 18,00,000/- for the flat/unit, Rs. 3,00,000/- for one covered car parking space and Rs. 1,50,000/- for amenity charges aggregating Rs. 22,50,000/-. The evidence on record also make it quite clear that the complainants have paid Rs. 5,33,000/- as part consideration amount towards the said total consideration amount in between 26.11.2015 and 15.10.2016.
Till today, the OPs have not yet taken any steps to fulfil their part of obligations in terms of agreement for sale dated 05.09.2016. Being frustrated about conduct of the OPs, complainant has claimed refund of the amount and in this regard, with advice of the OPs filled an application on 05.04.2018 for refund of the amount. However, the OPs did not take any steps to fulfil their part of the promise.
In a decision reported in (2015) CPJ 568 (Emmar MGF Land Limited and others –vs- Amit Puri) the Hon’ble National Commission has held that after the promised date of delivery of possession, it is the discretion of the complainant whether he wants to accept the offer of possession, if any or seek refund of the amounts paid with reasonable interest. In another decision reported in (2018) 5 SCC 442 (Fortune Infrastructure Pvt. Ltd –vs- Trevor D’Lima) the Hon’ble Supreme Court has observed thus:
“15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery of period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e. the possession was required to be given by last quarter of 2014. Further , there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draws us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered......”
On evaluation on materials on record and having heard the Ld. Advocate appearing for the parties it appears that the complainant being ‘consumer’ as defined in Section 2(1) (d) of the Act hired services of OPs on consideration in a housing construction and OPs have failed to fulfil their part of obligations and found deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainant is entitled to some relief. There is hardly any chance on the part of complainant in getting flat in near future. Therefore, instead of passing an order to that effect an order of refund of money to enable the complainant to purchase another flat in the same locality from some other developer/builder will meet the ends of justice. Therefore, the complainant is entitled to refund of the amount of Rs. 5,33,000/- .
So far as compensation is concerned, considering the principles of law laid down by the Hon’ble Supreme Court in the case of Kolkata West International City Pvt. Ltd (supra), I think, compensation in the form of simple interest @ 9% p.a. from the date of each payment till its realisation will meet the ends of justice. Under compelling circumstances, complainant has to lodge the complaint for which he is entitled to litigation costs which I quantify at Rs. 10,000/-.
With the above discussions, the complaint is disposed of with the following directions:
(i) The Opposite Parties jointly and/or severally are directed to refund the amount of Rs. 5,33,000/- along with compensation in the form of simple interest thereon @ 9% p.a. in favour of the complainant from the date of each payment till its realisation;
(ii) The Opposite Parties jointly and/or severally are directed to pay Rs. 10,000/- to the complainant as costs of litigation;
(iii) The above payments should be made within 45 days from date in terms of the above order.
