Date of filing : .19.01.2017

Date of final hearing : 01.12.2017 

          The instant complaint Under Section 17 (inadvertently mentioned U/s. 12 ) of the  Consumer Protection Act, 1986 ( for brevity, “the Act”) is at the behest of an intending purchaser against the    developer/builder and its Authorised Signatory  ( OP Nos. 1 and  2 ) on the allegation of deficiency in services on the part of them in a dispute of housing construction.

       In a nutshell, complainants’ case is that on 05.1.2007 her mother named Madhumita Ghosh  entered into an agreement with  OP No.1   to purchase of a flat being apartment no. 0704 on 7th floor, Tower - 02 measuring about 1574  sq. ft. in the
complex ‘Harmony’ in  Uniworld City,Action Area – III,  New Town, Kolkata at a consideration of Rs. 53,06,806/- including Rs. 2,97,000/- for car parking space and Rs. 1,00,000/- only for club membership. The said Madhumita Ghosh had paid a sum of Rs. 4,82,281/- towards earnest  money on  05.12.2007. Thereafter, Madhumita had paid a sum of Rs. 22,20,263/- including  the earnest money out of total consideration of Rs. 53,06,806/-. By a letter dated 02.02.2009, Madhumita  requested the OPs to refund the earnest money and to cancel the agreement for sale  dated 05.12.2007. Thereafter, the complainant filed an application to OP No.1 on 14.07.2010 with an intention to purchase  the said flat as per terms and conditions as embodied in the agreement for sale. The OPs endorsed the said flat in favour of the complainant on 01.11.2010 and the same was confirmed by letter dated 03.11.2010. The complainant has alleged that the OPs have failed and neglected to execute and register the deed of conveyance as per terms of the agreement. Hence, the complainant has come up in this Commission with prayer for refund of Rs. 22,20,263/- with statutory interest thereon, compensation of Rs. 5,00,000/- and litigation cost etc.

       The notice issued upon the OPs had returned with Postal remark  ‘Addressee Moved ‘.  Accordingly, the notice upon both the parties was issued by way of an incursion in a leading daily English Newspaper published from Kolkata . Despite such publication,  the OP Nos. 1 & 2 have not come to contest. Under compulsion, the complaint was heard exparte against the  OPs.

       In support of the case of the complainant, Shri Samirendra Nath Ghosh, Constituted Attorney/ father of the complainant has tendered evidence through affidavit .
Seen  the materials on record including Brief Notes of Argument filed by the complainant.

       The agreement for sale dated 05.12.2007 indicates that Madhumita Ghosh, mother of the complainant  entered into an agreement with  OP No.1   to purchase of a flat being apartment no. 0704 on 7th floor, Tower - 02 measuring about 1574  sq. ft. in the complex ‘Harmony’ in  Uniworld City, Action Area – III,  New Town, Kolkata at a consideration of Rs. 53,06,806/- including Rs. 2,97,000/- for car parking space and Rs. 1,00,000/- only for club membership. The said Madhumita Ghosh had paid a sum of Rs. 4,82,281/- towards earnest  money on  05.12.2007. Thereafter, Madhumita had paid a sum of Rs. 22,20,263/- including  the earnest money out of total consideration of Rs. 53,06,806/-. By a letter 02.02.2009, Madhumita  Ghosh requested the OPs to refund the earnest money and to cancel the agreement for sale  dated 05.12.2007.

        Thereafter, the complainant filed an application to OP No.1 on 14.07.2010 with an intention to purchase  the subject flat as per terms and conditions as embodied in the agreement for sale dated 05.12.2007. The OPs endorsed the said flat in favour of the complainant on 01.11.2010 and the same was confirmed by letter dated 03.11.2010.

       The complainant  in her petition of complaint has spell out that the OPs have failed and neglected to execute and  registered the deed of conveyance in favour of her and no construction has been made till date on the site allocated for the purpose of  Tower No.7.  The said statement has also been made by the complainant in her affidavit and the said statement  remains unchallenged . Therefore, it becomes quite clear that the OP No .1/developer has failed to fulfil their obligation in construction of the building and to deliver the subject flat and thereby deficient in rendering services.

       In view of the above, complainant is entitled to reliefs. In  my view, an order directing the OP No.1 to refund Rs. 22,20,263/- together with an interest thereon @ 9% p.a. and a litigation cost of Rs.10,000/- will meet the ends of justice.

       Consequently,  the petition of complaint is allowed  exparte  against OP No.1 and dismissed exparte against OP No.2. The OP No.1 is directed to refund Rs. 22,20,263/- alongwith interest thereon @ 9% p.a. in favour of complainant from the date of payments till its  realisation. The OP No.1  is further directed to pay litigation cost of Rs. 10,000/- in favour of  the complainant within 30 days from date otherwise the amount shall carry interest @ 9% pa. from date till its realisation.

       The Registrar of the Commission is directed to send a copy of the final order/judgement to the parties to the case at once free of costs for information and compliance.