DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA : AGARTALA

 

CASE   NO:   CC- 414 of  2022

 

 

 

 

-VERSUS-

 

 

1. Smt. Nibedita Baidya,

W/o Sri Samaresh Baidya,

Krishnanagar, Pragati Road,

Ujjala Apartment,

Near Meher Kali Bari,

(Opposite to Bhagya Chakra),

P.O. Agartala, P.S. West Agartala,

District- West Tripura- 799001. ...….............Opposite Party.

 

 

    __________PRESENT__________

 

 SRI GOUTAM DEBNATH

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

      WEST TRIPURA, AGARTALA.

 

DR (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER

DISPUTES REDRESSAL COMMISSION,

  WEST TRIPURA, AGARTALA.

 

SRI SAMIR GUPTA

MEMBER,

  DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA.

 

 

C O U N S E L

 

 

For the Opposite Party : None appeared.

 

 

 

 

F I N A L    O R D E R

2. The brief facts of the case are:

2.1 The Complainant booked a 2 BHK flat in a project to be constructed on the land of one Sri Pankaj Debnath, S/o Late Priya Lal Debnath of Bardowali, Agartala. Total consideration amount towards purchase of the flat was fixed at Rs.12 lac. An Agreement to Sale to this effect was made on 20.01.2018 (in short ‘the 1st Agreement). The full payment of Rs. 12 lac was paid by the Complainant, in advance, to the O.P. on 10.01.2018.  The flat was agreed to deliver to the Complainant within 12 months from the date of the 1st Agreement. The O.P. was unable to deliver the possession of the flat to the Complainant as per the defined time-line.

2.2 An alternative proposal came from the side of the O.P. requesting the Complainant for booking another flat in a separate project in lieu of the flat referred under the 1st Agreement. The Complainant agreed to the proposal and made another agreement on 01.12.2018 (in short ‘the 2nd Agreement’) for booking a 2BHK flat with the same consideration value of Rs.12 lac. For booking the flat in the new project, the Complainant was not required to pay any amount as the advance payment made earlier by her was to be adjusted against the new booking. The project was to be developed on the land of one Sri Ranabir Bhattacharjee, S/o Late Kamala Ranjan Bhattacharjee of Bardowali, Agartala. The flat was to be delivered within 15 months from the date of the 2nd Agreement. But, yet again, the O.P. was unsuccessful to deliver the possession of the flat to the Complainant.   

2.3 Thereafter, the O.P. again came out with another proposal to refund the entire advanced amount of Rs.12 lac to the Complainant. The Complainant agreed to revoke the 2nd Agreement on a condition of her getting back the money she advanced to the O.P. Accordingly, an Agreement for refund of instalment money was made between the Complainant and the O.P. on 18.12.2021 (in short ‘the 3rd Agreement’) whereby the O.P. was stipulated to refund the amount within 31st October, 2022. But the O.P. again flouted the laid down time-line to refund the amount.

2.4 Being dissatisfied and aggrieved due to the breaching of contracts, one after the another, by the O.P. the Complainant has filed this complaint to the Commission praying refund of the advanced amount Rs.12 lakhs with 9% P.A. interest along with Rs.70,000/- as compensation.

2.5 Hence, this case.

3. Despite due servicing of notice to the O.P., the O.P. did not appear to contest the case and, therefore, the case proceeded exparte against the O.P.

4. The Complainant filed evidence on affidavit as P.W.1 and recapped therein the facts stated in the complaint petition. Sri Sunil Chandra Karmakar, the husband of the Complainant Smt. Aparna Karmakar has submitted his evidence on affidavit as P.W.2.

5. The points fall on for consideration of the complaint petition are:

5.1 Whether there was any deficiency of service on the part of the O.P.?

5.2 Whether retention of the advanced money by the O.P. for such a long period of time without providing due service is an unfair trade practice adopted by the O.P.?

5.3 If the point (s) above is (are) in the affirmative, then what would be the reasonable compensation? 

6. The O.P. did not take part in hearing. Neither any written version has been filed. Hence, the averments made by the Complainant remained uncontroverted and unchallenged. Therefore, the case is taken for exparte hearing.

7. The case has been argued by the Complainant. The essential points of argument are as under:

7.1 It is pleaded that the O.P. kept on breaching the contracts one after the other causing serious financial loss, mental agony and pain to the Complainant. It is also pleaded that the Complainant on good faith and at the behest of the O.P. advanced the entire considerable value of Rs.12 lac to the O.P at the time of her booking the flat. But, the O.P. flouted the 1st and 2nd Agreements by not delivering the flat. The O.P. also did not comply the 3rd Agreement pertains to refund of the amount of Rs. 12 lac, which was advanced by the Complainant for purchase of the said flat. 

8. We have meticulously examined the materials on record and evaluated them for arriving at a logical and well-grounded conclusion. Our evaluative findings / observations are as under: 

8.1 The O.P. infringed the 1st and 2nd Agreements pertaining to booking the flat, in question. Which means the O.P. could not comply with the condition to deliver the peaceful and vacant possession of the flat within the specified time, as envisaged in the respective Agreement. It does suggest that the O.P. failed disastrously to provide service even after being allowed two opportunities by the Complainant. The Complainant played a quite flexible and adaptable role firstly, by agreeing to shift her booking into a separate project and secondly, by allowing additional amount of time, to an adequate degree, to the O.P. to complete the construction. Yet, the O.P. failed to deliver the possession of the flat to the Complainant. Thereafter, the O.P. again contravened the 3rd Agreement which pertains to refund of the advanced money paid at the time of booking the flat.

8.2 The O.P. was all along negligent to complete the construction of the projects, as referred, in the 1st and 2nd Agreements. The O.P., in both the situations, did not perform her obligation to hand over the peaceful and vacant possession of the flat. Such lapse in terms of disregarding two valid Agreements is tantamount to deficiency of service. More seriously, in the face of being given the opportunity to refund the advanced amount, the O.P. deliberately and purposefully kept hold of the fund for her gain.  As a result of which, the Complainant incurred a good amount of loss in terms of the time value of the money she paid as advance to the O.P. Such loss of the Complainant requires to be offset from the date of the payment of the advance amount i.e., 10.01.2018.

8.3 As per Clause 3 and Clause-4 of the 1st and 2nd Agreements respectively, it has been explicitly expressed that in the event of failing to confirm the marketable title and deliver the clear possession of the flat to the Complainant, the O.P. shall be liable to refund the whole advanced money with interest @ 9% P.A.  from the date of the payment.  

9. The points explained as above, make the O.P. liable to compensate the loss incurred by the Complainant.

10. Keeping the above findings in view, it is unequivocally concluded by us that, the Complainant has been successful in proving his case. In accordance to that, we order as follows:

10.1 We direct the O.P. to refund Rs.12 Lac along with interest @ 9% P.A. with effect from 10.01.2018 to the Complainant within 2 months from the date of this order. In default, the amount shall carry interest @ 12 % P.A. from this date till its realization.

10.2 We further direct that, the O.P. shall pay a compensation of Rs.70,000/-, which includes the litigation cost, within 2 months from the date of this order to the Complainant, else the amount shall carry interest @ 9% P.A. from this date till its realization.

11. All the points in para-5 above are decided in the affirmative. Hence, the case stands disposed of.  Copy of this order shall be supplied to the parties free of cost.

 

 

 

 

 

SRI  GOUTAM DEBNATH

PRESIDENT,

DISTRICT CONSUMER  DISPUTES

REDRESSAL COMMISSION,

WEST TRIPURA: AGARTALA

 

 

 

 

DR (SMT)  BINDU  PAL

MEMBER,

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

WEST TRIPURA: AGARTALA

 

 

 

 

SRI SAMIR  GUPTA

MEMBER,

 DISTRICT CONSUMER DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA: AGARTALA.