Dated : - 03.10.2024

FINAL ORDER / JUDGEMENT

Sri. Apurba Kr. Ghosh……………..President.

The Complainants have filed this case against the OPs and praying for the following order / relief:

1. Direction against the O.Ps to return back the total paid amount of Rs. 18,56,397/- along with 18 % interest accrued thereon from 12.09.2021 to the Complainants.
2. Direction against the O.Ps to pay a sum of Rs. 5,00,000/ to the Complainants on account of their continuous and tremendous mental pain, agony and harassment.
3. Direction against the O.Ps to pay a sum of Rs. 3,00,000/- to the Complainants on account of punitive damages .
4. Direction against the O.Ps to pay a sum of Rs. 80,000/- to the Complainants towards litigation cost.
5. Any other relief or reliefs to which the Complainant is entitled as per law.

BRIEF FACT OF THE COMPLAINT

1. That, The Complainants are peace loving and law abiding citizens of India / the Complainant No. 1 decided to purchase a flat mentioned in the schedule of the complaint from her own fund in the name of herself and her daughter (Complainant No. 2) as well as for her son-in-law namely Bishnu Das / the name of Bishnu Das was put in the initial agreement to sale , though he spent no money to the OPs but subsequently the marital tie of the Complainant No. 2 with Bishnu Das was broken by Decree of Divorce and therefore the present Complainants have filed this case.
2. That, the OP No. 1 is the recorded owner and possessor of the land measuring 8.88 acre more or less 888 decimal recorded in LR Khatian NO. 960, LR Plot Nos. 900, 901, 905, 906, 897, 941, 942, 943, 948, 953, 955, 956 (P), 957(P), 979(P), 981(P), and 982 (P) situated at Mouza - Guria, in JL No. 56 under PS Matigara, Dist. Darjeeling and OP No. 2 is the recorded owner as well as possessor of the land measuring 0.024 acre, more or less 24 decimal recorded in LR Khatian No. 1787 appertaining to and part of LR Plot No. 952 and 981(P), at Mouza-  Guria in JL No. 56, PO & PS- Matigara, Dist. Darjeeling and both the land of the OP 1 and 2 are more fully described in the schedule “A” Part -I and schedule “A” Part II
3. That, the OP No. 3is the Developer and the OP No. 3 is engaged itself in the business of developing and promoting the land for construction of multi storied building, containing several units including dwelling units.
4. That, the OP No. 1 and 2 have engaged the OP No. 3 to develop their A Schedule Land for construction of multistoried residential building comprising of five phases on the A Schedule Land and each of the Block of the said proposed project containing several dwelling units along with other facilities and amenities together with specified features and thereby the OP No. 1 , 2 and 3 are severally and jointly liable and responsible for day to day works, affairs and development of construction of the proposed project marketed and named as “Oxyprana”.
5. That, all the OPs have jointly taken initiative to apply for building plan for the said proposed project and after considering the plan, the Matigara Panchayet Samiti had approved and sanctioned the building plan vide their order no. 18/Path/MPS/ Planning dated 26.04.2018 and after getting the approved building plan the OP No. 3 has registered the project under the provisions of West Bengal Housing Industry Regulatory Authority at Darjeeling bearing registration no. HIRA/P/DAR/2019/000319 and thereafter started making construction on the A schedule land by amalgamating the Part – I and Part – II of the A schedule land.
6. That, the OPs have started selling the proposed unit / flat of the said ongoing project named as Oxyprana to the intending purchasers and they published one Brochure for promotion and marketing their ongoing project named as Oxyprana which contains total number of flats promised facilities and amenities of the project popularly known as Oxyprana / the OPs are jointly and severally liable and responsible for their business of selling flat to the intending purchaser and also for making construction of the ongoing project.
7. That, after going through the said brochure supplied by the OPs and after considering the alluring agreed facilities, amenities and features promised to be provided by the OPs to the purchaser including the Complainants, the Complainants have decided to purchase a flat at the said proposed project and after consultation with the OPs the Complainants have agreed to purchased residential flat bearing no. D303 measuring carpet area 550 sq ft. corresponding to build up area 641 sq ft. including the area of balconies/ varandas and 30% of area of attached terrace if any, including areas parapet, walls, pillars, columns etc and super built up area measuring 833 sq ft in the north side, on the 3^rd floor of the D Block in phase no. 1 of the said housing complex namely Oxyprana together with undivided share of the A Schedule Land and one two wheeler parking space together with promised facilities as fully described in B schedule flat / the total consideration money of the B Schedule flat and one two wheeler parking space was fixed of Rs. 22,66,583/- including GST by the OPs / the Complainant have booked the B schedule flat on 12.09.2021 by making payment of Rs. 1,00,000/- through NEFT being Reference No. 206620804 dated 12.09.2021.
8. That, the Complainants have already paid a sum of Rs. 1,00,000/- on 02.10.2021 through cheque bearing no. 639592 dated 02.10.2021 drawn on SBI, Rs. 2,00,000/- on 09.11.2021 through cheque bearing no. 012726 dated 09.11.2021 drawn on SBI, another sum of Rs. 2,00,000/- being cheque no. 012727 drawn on SBI, another sum of Rs. 3,00,000/- on 23.02.2022 through cheque being no. 012730 dated 23.02.2022 drawn on SBI and another sum of Rs. 9,56,396/- on 01.04.2022 through cheque being no. 012734 dated 01.07.2022 drawn on SBI, and altogether they paid a sum of Rs. 18,56,396/- to the OPs and accordingly, time to time the OPs have issued money receipts to the Complainants on 16.09.2021, on 07.10.2021, on 16.11.2021, on 10.01.2022, on 05.03.2022 and lastly on 05.07.2022 by acknowledging the receipt of the total amount of Rs. 18,56,396/- from the Complainants. Out of total consideration of Rs. 22,66,583/- they have already paid lion portion of share amounting to Rs. 18,56,397/- to the OPs but they did not carry on the progress of the ongoing construction of B schedule flat and other promised facilities.
9. That, at the time of booking of the B schedule flat and one two wheeler parking space the OPs have firmly assured and agreed to hand over and deliver of the clear, khas, actual possession of the B schedule flat along with one parking space would be completed within May 2022 and the OPs have assured that they will give the effective registration of the B schedule flat and two wheeler parking space within May, 2022 but till this day the OPs have failed and neglected to complete the construction work of B schedule flat which clearly proved and established the illegal and unfair trade practice, latches, negligence and deficiency in service on the part of the OPs.
10. The OPs have agreed to transfer the B schedule flat along with parking space to the Complainant within May2022 but due to COVID 19 pandemic situation the OPs have taken 3 months more from the Complainant to complete their project Oxyprana to be completed within August 2022 but after 17 months from the date of delivery of possession of B schedule flat as well as two wheeler parking the OPs have completely failed and neglected to complete the ongoing project.
11. That, finding no other alternative the Complainants have sent Lawyer’s notice to the OPs through their Advocate by registered post with AD on 26.09.2023 which was duly received by them on the same day i.e 26.09.2023 but they make no reply to the legal notice which has also proved that there is a great deficiency in service, negligence on the part of the OPs.
12. That, the cause of action of this case arose on and from 12.09.2021 when the Complainant have booked the B schedule flat along with two wheeler parking space with the OPs and thereafter on several dates and the said cause of action is still continuing.

To prove the case the Complainant has filed the following documents:

1. Photocopy of Agreement for sale dated 21.10.2021- Annexure A.
2. Photocopy of Brochures issued by the OPs – Annexure B.
3. Photocopy of Money Receipts- Annexure C
4. Photocopy of Legal Notice – Annexure- D.
5. Photocopy of Postal Receipt- Annexure E.
6. Photocopy of Track Report- Annexure F.

Notice was sent from this Commission for serving the same on the OPs but despite receiving notice the OPs have not appeared before this Commission to contest this case. Accordingly, the case is proceeding exparte against the OPs.

        Having heard the Ld. Advocate of Complainants and on perusal of the complaint, documents filed by the Complainants the following points are to be taken up for consideration by this Commission.

Points for consideration

1. Whether the Complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act ?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of his Complaint?

Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

Complainants were given opportunity to prove its case by adducing evidence and by producing documents before this Commission. In order to prove this case the Complainants have filed written deposition in the form of an affidavit. In the written deposition the Complainants have categorically corroborated the contents of the complaint. They also corroborated the entire case and they prayed for necessary order in this regard.

In the written notes of arguments the Complainants have stated that they have been able to prove the case against the O.Ps and they are entitled to get the relief as prayed for on the grounds that there was clear deficiency in service on the part of the OPs who despite receiving the lion’s share of the consideration amount to they failed / neglected to construct the flat in question. It is also argued on behalf of the Complainant that according to stipulation of the agreement the OPs need to deliver possession of the B Schedule flat along with two wheeler parking space in favour of the Complainants within May 2022 but they did not deliver possession of the flat as well as two wheeler parking space till today .

Having heard the Ld. Advocate of the Complainants and on perusal of the evidence filed by them as well as from the brief notes of argument it appears that the Complainant have been able to prove the agreement which was executed by and between them on 21.10.2021. It further reveals from the record that, the Complainants have been able to prove its money receipts regarding payment of Rs. 18,56,396/- to the OPs out of total consideration amount 22,66,583/- . The Complainants have also been able to prove the agreement dated 21.10.2021 where the OPs have assured to deliver / hand over the possession of B schedule flat as well as one two wheeler parking space to the Complainants within May 2022. The Complainants by filing evidence in the form of an affidavit has specifically stated that, despite receiving the sum of Rs. 18,56,396/- out of Rs. 22,66,583/- the OPs have not completed the construction work and have not deliver possession of the B Schedule Flat along with parking space to the Complainants till today. The Complainants have also been able to prove the legal notice which was sent through their Ld. Advocate to the OPs but they did not make any reply against that legal notice.

Considering the unchallenged evidence of the Complainants and considering the documents annexed by the Complainants, we are of the view that, the Complainants have been able to prove the case against the OPs and there is / was deficiency in service as well as unfair trade practice on the part of the OPs. Considering the materials on record we are also of the view that, the Complainants are entitled to get the relief as prayed for.

Hence, it is

                                                                            O r d e r e d    

That, the instant Consumer Case Being No. 24/2024 is hereby allowed on ex-parte against all the OPs. All the OPs are jointly and severally liable to pay the awarded amount to the Complainants. The OPs are directed to return back a sum of Rs. 18,56,396/- (Rupees Eighteen Lakh Fifty Six Thousand Three Hundred Ninety Six) to the Complainants. The OPs are further directed to pay a sum of Rs. 1,00,000/-(Rupees One Lakh) only to the Complainants for causing mental pain, agony and harassment. The OPs are also directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only to the Complainant towards the cost of legal proceedings. The OPs are also directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only in the Consumer Legal Aid Account of this Commission.

All the OPs are directed to pay interest @ 7% per annum on the awarded amount to the Complainants with effect from the Date of Agreement for Sale dated 21.10.2021 till making payment of the entire amount.

The OPs are further directed to pay the awarded amount within 45 days from this  day,  failing which the Complainants will have the opportunity to take steps against the OPs as per law.

                                    Let a copy of this order be given to the Complainants free of cost.