Date of Filing: 08.07.2020

Date of Judgment: 16.12.2021

Mrs.  Sashi Kala Basu, Hon’ble  President

This complaint is filed by the complainant, Mr. Pushpak Kumar Anand,  under section 12 of the C.P Act, 1986 against the O.Ps namely 1) SAISHA Infrastructure Pvt. Ltd. 2) Prashanta Sharma 3) Mrs. Manidipa Sharma and 4) Ms. Sushma Gurung  , alleging deficiency in service  and unfair trade practice on the part of the O.Ps.

                The case of the complainant, in short, is that by a Memorandum of Understanding dated 25.2.2015 executed between the complainant and the developer company represented by O.P no.2, the Director, complainant agreed to purchase a studio apartment in the project developed by the O.P for residential purpose. Complainant has paid a total sum of Rs. 16,53,388/- and on receiving the said sum O.P has also issued money receipt. It was agreed between the parties in the agreement that if the owner/developer fails to complete the said apartment and to hand over the possession within the stipulated period i.e 31.3.2018, a further period of 6 months may be extended and tentative date of possession was fixed on 30^th September, 2018. But the O.Ps failed to complete the said project even after lapse of more than 4 years. O.P no.2 is the promoter/Director of the Developer Company and husband of the O.p no. 3 who joined the developer company on 15.11.2014 and O.P  no.4 is the owner/landlord of the project and he also joined the developer company as Director on 25.2.2016. The complainant lost interest over the property and so cancelled the booking vide e-mail  dated 10.4.2018 and asked for refund vide mail dated 21.6.2018 and 31.3.2019. But O.Ps failed to either hand over the possession of the flat within the stipulated period or to refund the amount paid by the complainant. So, the present complaint has been filed by the complainant praying for directing the O.Ps to pay jointly and/or severally a total sum of Rs.16,53,388/- , to pay compensation of Rs. 3 lac and to pay litigation cost Rs.20,000/- and for directing the O.Ps to pay interest @18% p.a.

                 Complainant has filed the Memorandum of Understanding entered into between the parties, money receipts showing payment of amount, email sent by the complainant and exchanged between the parties and also the document showing O.P nos. 2 to 4 as Directors and their date of joining in the company/O.P no.1.                 

                On perusal of the record it appears that notices were sent but no steps were taken by the O.Ps and thus the case was directed to be proceeded exparte against the O.Ps.

                So, only point requires determination  whether the complainant is entitled to the relief as prayed for.

DECISION WITH REASONS

                In support of his claim complainant has filed copy of the Memorandum of understanding, money receipts, wherefrom it appears that an amount of Rs. 16,53,388/- was paid by the complainant to the O.P no.1. The e-mails exchanged between the parties also supports the claim of the complainant about the payment of the amount  claimed by him and that he had entered into an agreement to purchase a studio apartment in the project. The email dated 23.4.2019 sent by the O.P is very categorical that they could not do much progress in the project due to demonetization. So, it is evident that the project was not completed as agreed between the parties within the stipulated period and thus complainant is entitled to refund of the sum paid by him, especially when before this Commission no contrary material is forthcoming to rebut or counter the claim of the complainant.  However, it appears from the copy of MOU that it was agreed between the parties that in case the developer failed to deliver the possession within the period as agreed and even after the grace period, the developer will be liable to pay interest @12% p.a on the paid amount for the delayed period. If that be so, then the complainant is also entitled to the interest on the sum paid by him. Since, interest is allowed, there is no justification in passing further order as to compensation as prayed for by the complainant. It may be mentioned here that apparently the agreement/Memorandum of Understanding was entered into between the parties on 25.2.2015 .But O.P no.4 who according to the complainant is the owner joined the project as a Director only on 25.2.2016 cannot be made liable as the agreement was entered into before she joined the company.

Hence,

              ORDERED

That CC/138/2020 is allowed exparte against O.P nos. 1, 2 and 3 and dismissed against O.P no.4.

The O.P nos. 1, 2 and 3 are directed to pay Rs. 16,53,388/- along with interest on the said sum @12% p.a. ( in the form of compensation ) from the date of payment of the said sum within 2 months from this date, in default  the sum shall carry further interest @12% till realization.