Hon'ble Mrs. Dipa Sen (Maity), Presiding Member
Order No.31
The instant complaint petition has made by the Complainants against the developer alleging deficiency in service in relation to housing construction.
The brief facts as set out in the complaint are that being an intending purchaser in an upcoming residential project “NESTWOOD” the Complainants booked one 3BHK flat on the 3rd floor in the north western side being Apartment No. D3 for a super built up area 1050 sq. ft. in the Tower No. 15 at an agreed price of Rs.18,90,000/- (Eighteen lakh ninety thousand) @ Rs. 1800/-(Eight hundred) per sq. ft. along with a covered car parking space amounting to Rs.3,00,000/- (Three lakh) aggregating Rs.21,90,000/-(Twenty one lakh ninety thousand) and another 2BHK flat No.C3 on the 3rd d floor in southwest direction measuring about 978 sq. ft. in Tower No.15 at an agreed price of Rs.17,60,400/- (Seventy lakh sixty thousand four hundred) along with another covered car parking space of Rs.3,00,000/- (Three lakh) aggregating Rs.20,60,400/- (Twenty lakh sixty thousand & four hundred). The Complainants booked the above mentioned flat on 30.07.2014. As per the said general statement of agreement issued by the O.P it was agreed between the parties that the said flat would be handed over within 36 months i.e. 30.07.2017 but the O.P failed to complete the said project and tried to shift the booking of the said flat from “NESTWOOD” to another project name “GULMOHAR” but that too was not completed. Complainants visited the site and found that the construction work has not yet been started and the complete work remains suspended. There was no improvement in the work which shows any kind of sign that the O.P could have complete the construction work by 2017 and handed over the said booked flat by that period of time. After receiving the payment in year 2014 the O.P remain silent. Without any other way Complainants compelled to request the O.P to get back refund of their hard earned booking amount of Rs.5,47,560/-(Five lakh forty seven thousand five hundred & sixty) from the Opposite Party along with interest as they have failed to complete the construction of those flats and hand over within stipulated period of 36 months. But in spite of several requests the O.P is withholding the said amount unethically with them. Without getting any other way the Complainants Mr. Dulal Chandra Mondal, and Ms. Pushpa Mondal compelled to approach before this Commission for redressal of their grievances.
On the other hand, the O.P by filing W.V denied and disputed all allegations made against them. They have stated that the complainant suppressed the material fact and the present petition of complaint is not maintainable and liable to be dismissed. The whole matter is civil in nature and the complainants should proceed before the appropriate court for adjudication. The O.P sent many letters to the complainants but the complainants remained silent and ultimately the complainants wrote a letter to the O.P to refund there earnest booking amount. As the complainant was in hurry to get the flat as early as possible the O.P proposed to the complainants that they have other projects which are in progress in the nearby area. But it does not mean that the O.P refused to deliver the said commitment actually the complainants refused to keep their commitment. These complainants are not consumers and the present complaint filed by complainants should be rejected as the same is to be to be dismissed.
It appears from the record that the O.P has filed W.V and questionnaire against the evidence on affidavit filed by the complainants. Complainants filed replies but no evidence on affidavit has been filed by the O.P. After filing questionnaire, the O.P remained absent. Hence, the case is taken up for hearing in absence of the other party.
The Ld. Advocate for the complainants argued that the complainants has filed application form and paid booking amount of Rs.2,83,500/- (Two lakh eighty three thousand five hundred) for the flat no. D3 on 3rd floor and Rs. 2,64,060/- (Two lakh sixty four thousand & sixty) for flat No.C3 in Tower no. 15 along with the covered car parking spaces. O.P issued money receipt along with the provisional letter of allotment i.e. altogether Complainants paid Rs.5,47,560/-(Five lakh forty seven thousand five hundred & sixty) to the O.P as booking amount for subject flats.
But in spite of that there was no progress of construction work and the O.P instructed them to shift their application to another project. Complainants on 16-05-2016 requested the O.P to submit all necessary photo copies of valid documents relating to the project i.e. registered deed of land, conversion certificate of land, approved sanctioned building plan by the Govt., bank approval for project etc. But the O.P did not submit those documents even after lapses of two years. Thereafter, Complainants sent e-mail whereby they have stated that as in spite of payment of booking amount, the O.P did not started their construction work and sent a proposal for shifting another project, Complainants prayed for refund of their hard earned amount but the O.P remained silent and continue withholding their amount unethically.
Having heard the Ld. Advocate of Complainants and on careful perusal of the materials on record it becomes clear to us that Complainants are ‘consumers’ as described U/s. 2 (1)(d) of the C.P. Act, 1986 as they have hired services relating to housing construction after payment of part consideration amount of Rs.5,47,560/-(Five lakh forty seven thousand five hundred & sixty).
On perusal of material of records it clearly appears to us that Complainants appeared before this Commission on 07.09.2017. It also appears from the scrutiny of record that the Opposite Party duly issued receipt for the amount of Rs.5,47,560/-(Five lakh forty seven thousand five hundred & sixty) on 30-07-2014 and on 05-09-2014. In the written version the O.P has also admitted the said fact. Complainants have preferred this present complaint case on 07.09.2017 i.e. after completion of three years after allotment which was the stipulated time period for delivery of the possession of the flat to Complainants as per the terms and condition dated 30.07.2014. The fact remains that the construction of the said project has not been completed within the stipulated period of time. In a decision reported in 2022 (1) CPR 23 NC (Kamal Malhotra vs. Parsvnath Developer’s Ltd.) that in a case Hon’ble National Commission has already decided that the complainant cannot be made to wait indefinitely for possession of the flat, as the construction is not completed and the complainant is entitled for refund of the principal amount with reasonable interest, which is quantified @ 9% p.a. from the date of payment till actual date of refund.
In the present case also, Complainants booked two flats and made payment of part consideration amount of Rs. 5,47,560/-(Five lakh forty seven thousand five hundred & sixty)) with an intention to get shelter/residence of their own, but in spite of several request the construction was not completed and possession was not delivered to Complainants and the O.P is illegally withholding the hard earned amount of Complainants. Moreover, the O.P did not furnish any document wherefrom it can be established that those two flats were booked for commercial purpose and not booked for the residential purpose of Complainants.
In this present case the O.P did not file any evidence on affidavit as such the averment made by Complainants remained unchallenged and uncontroverted.
With the above discussions, we therefore come to the conclusion that the O.P has deficiency in service as they did not handover the possession to Complainants and withholding their hard earned money.
As such, the present complaint case is hereby allowed with the following directions:
- The Opposite Party is directed to refund of Rs. 5,47,560/-(Five lakh forty seven thousand five hundred & sixty) /- with interest @ 9% p.a. to Complainants from the date of payment till its realisation.
- The Opposite Party is further directed to pay Rs. 20,000/-(Twenty thousand) as the litigation cost.
- The above payment must be made within 90 days from the date of communication of this order.
Let a copy of the Judgment be handed over the parties free of cost.
