Order-7.
Date-04/08/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainants’ case, in short, is that OPs are builder/developer engaged in providing housing service to the public at large. OP1 is the company itself and OP2 is CEO under OP1. Complainants entered into an agreement with the OPs for purchasing a ‘Duplex’ on a plot of land measuring about 1000 sq. ft. more or less under District South 24 Parganas Bhangar as described in the petition of complaint. As per agreement the complainants had to first register the plot in their name and, thereafter, the OPs had to build a ‘Duplex’ of said plot. The consideration amount was payable by the complainants for both the plot and ‘Duplex’ within 18 to 24 months. The total cost of construction of plot settled between the parties was Rs.18 lakhs. Both the parties also signed and executed and an Assigned Agreement(date not mentioned) for avoiding the future dispute. as per the agreement the construction of the ‘Duplex’ was supposed to be completed within 18 to 24 months from the date of issuance. Complainants also mutated the said plot of land and paid taxes regularly for the purpose of construction and for obtaining the building plan. Complainants also paid three instalments by different cheques on different dates amounting to total of Rs.5,33,906/-. It is stated that the complainants paid the consideration amount to the OP and OP also acknowledged the same but failed and neglected to complete the work of the said Duplex without any valid reason. OPs also failed and neglected to inform the complainants the status of the work or the reason for inability to construct the said Duplex of the complainants. OPs also failed and neglected to return the deposited amount of the complainants. Complainants alleged deficiency in service against the OPs as the OPs failed and neglected to render service or completed the construction within 18 to 24 months from the date of commencement of the construction work as per assignment Agreement. The complainants visited the office of the OP and requested to refund part consideration amount or to start construction but to no good. Complainants also sent a legal notice dated 26-07-2015 but to no good. After elapsing several months when the OP did not start the construction work the complainants issued two cancellation letters dated 30-01-2014 and 31-01-2015 to the OP and requested to refund back the consideration amount after cancellation of the Assignment Agreement. The notices were duly received by the OPs but they neither replied to the said letter nor refunded the consideration amount. The complainants have alleged deficiency in service and unfair trade practice against the OPs. Complainants have prayed for refund of the deposited amount along with interest and other reliefs in terms of prayers in the petition of complaint.
Despite service of summons, none appears from the side of the OPs to contest the case and the case has proceeded ex parte against the OPs.
Point for Decision
- Whether the OPs are deficient in rendering services to the complainants?
- Whether OPs have indulged in unfair trade practice?
- Whether complainants are entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record, i.e. Xerox copy of Deed of Conveyance dated 18-07-2012, Xerox copy of Assignment Agreement, Xerox copy of money receipts, Xerox copy of legal notice dated 26-07-2015, Xerox copy of letter of cancellation of booking dated 30-11-2014 and other documents on record.
It appears that the complainants entered into an agreement for purchasing a ‘Duplex’ on the plot of land measuring about 1000 sq. ft. more or less under District – 24 Pgs(S) under P.S. Bhangar presently under the jurisdiction of Tardah Gram Panchayet, Mouza – Bhatipota, J.L. No.33, Rayata Satwea on 18-07-2012 on 2.30 dcmls out of 17 dcmls as described in the petition of complaint. We also find that the complainants as per agreement got the plot registered in their name and thereafter the OP was supposed to build a ‘Duplex’ on the said plot. The cost of total construction and plot settled between the parties is Rs.18 lakhs. Parties also signed and executed an Assignment Agreement for the development purpose. In terms of the Assignment Agreement, OP was tol prepare the draft plan of the proposed building with specification of materials to be used and also estimate regarding cost of the proposed building i.e. ‘Duplex’. As per the agreement the construction of the ‘Duplex’’ will be complied within 18 to 24 months from the date of assignment. We also find that the said plot of land has also been mutated in the name of the complainants and the complainants are also paying taxes regularly. The complainants as we find also paid to the OPs also paid total amount of Rs.5,33,906/- by three day instalments vide cheques and DD i.e. being cheques no. 881132 and 553722 dated 06-06-2012 of Rs.74,226/-, vide cheque no.360402 dated 30-06-2014 of Rs.70,000/-, vide D.D. No.859276 and 859277 dated 16-07-2014 amounting to Rs.3,89,680/-. We find that OPs have also issued the money receipt as against such payment. It is alleged that the OPs have failed and neglected to complete the work of the said ‘Duplex’ and also failed and neglect to inform the complainants about the status or progress of the said work of the subject ‘Duplex’. It is also alleged that the OPs have been unable to construct the said ‘Duplex’. It is also alleged that OPs have been unable to construct the subject ‘Duplex’ as per the Assignment Agreement. It is alleged that the complainants visited the office of the OP and requested the OPs to start construction but to no good. Even service of legal notice dated 26-07-2015 yielded no result. We also find that the complainant issued two letters dated 30-01-2014 and 31-01-2015 to the OPs requesting to refund back the consideration amount after cancellation of Assignment Agreement but to no good. We find that the OPs have failed and neglected to provide service as per terms and condition mentioned in the Assignment Agreement even after receiving a part consideration from the complainants. OPs have been unable to complete the residential unit and also failed and neglected to refund the deposited amount to the complainants. We think that OPs have been deficient in rendering service to the complainants as per the Assignment Agreement. Moreso, when they have received a part consideration from the complainants.
None came from the side of the OPs to contest the case or to controvert the version of the complainants. The Evidence on Affidavit filed by the complainants remain unchallenged and uncontroverted. In absence of any contrary or controverting materials on record and having regard to the documents thereon we are of opinion that the OPs have demonstrated a gesture of deficiency in service. The OPs were supposed to honour the Assignment Agreement but OPs failed to perform as per the terms and condition as laid down under the Assignment Agreement. It is given to understand to us that OPs have not undertaken the development work as per the Assignment Agreement and, as such, the complainants are entitled to get refund of the deposited amount.
Consequently, the case merits success.
Hence,
Ordered
That the instant case be and the same is allowed ex parte against OPs.
OPs are directed to refund the deposited amount of sum of Rs.5,33,906/- along with interest at the rate of9 percent p.a. w.e.f. 08-07-2012 till actual payment within one month from the date of this order apart from litigation cost of Rs.10,000/-.
OPs are also directed to pay a sum of Rs.30,000/- for causing harassment, mental pain and agony to the complainants within the said stipulated period. In the event of refund of money, the agreement dated 18-07-2012 and Assignment Agreement between the parties will be treated as cancelled and will have no binding effect upon the parties.
Failure to comply with the order will entitle the complainants to put the order into execution asper appropriate provision in C.P. Act.
