State Consumer Disputes Redressal Commission
Mr. Anindya Chatterjee & Another vs M/S. Megacity Apartments Pvt. Ltd. on 22 March, 2021
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/866/2018 ( Date of Filing : 07 Dec 2018 ) 1. Mr. Anindya Chatterjee & Another Dream Park, Flat no. B2 - 2A, 468, Sonarpur Station Road near Green Park School, Kamalgazi More, Kolkata - 700 103. 2. Sriya Chatterjee W/o Anindya Chatterjee, Dream Park, Flat no. B2 - 2A, 468, Sonarpur Station Road near Green Park School, Kamalgazi More, Kolkata - 700 103. ...........Complainant(s) Versus 1. M/s. Megacity Apartments Pvt. Ltd. 70, Lake East, 6th Road, Santoshpur, P.S. - Survey Park, Kolkata - 700 075. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER PRESENT: Mr. Nripendra Ranjan Mukerje,Mr. Sourya Mukherjee, Advocate for the Complainant 1 None appears ......for the Opp. Party Dated : 22 Mar 2021 Final Order / Judgement
HON'BLE MR.JUSTICE ISHAN CHANDRA DAS,PRESIDENT This is an application under section 17(1)(a)(i) of the Consumer Protection Act, 1986 where the complainant, a couple applied for recovery of consideration, interest, compensation, litigation cost and other consequential reliefs.
The case of the complainants was that the complainants, a couple, wanted to purchase a residential flat for better accommodation and entered into an agreement with the OP/Builder to purchase a flat, as referred to in paragraph 3 of the petition of complaint for a consideration of Rs. 39,73,125/- (Rupees thirty nine lakh seventy three thousand one hundred twenty five) and it was agreed upon by the parties that the OP shall complete the construction of the flat and would deliver possession thereof within December 2015 with a rider that if the purchasers wanted to cancel the agreement for any reason whatsoever, the purchaser shall intimate the said desire in writing and the OP/builder shall refund the amount received as on that date by 10% within a period of two months from the date of such cancellation. The complainants stated that they paid a sum of Rs. 32,86,491/- (Rupees thirty two lakh eighty six thousand four hundred ninety one only) on 19-12-2015 and a sum of Rs. 6,86,634/- (Rupees six lakh eighty six thousand six hundred thirty four only) was due. The complainants alleged that the OP failed and neglected to complete the construction of the flat within the time fixed for such construction i.e. December, 2015 and by a letter dated 08-05-2018 the OP stated that the flat in question was almost ready for possession. The complainants alleged that the OP failed and neglected to render construction as per the agreement in reference and failed to construct and hand over the possession of the same within December, 2015. In the month of May/June, 2017 the complainant no. 1 had been suffering from cancer and had to be operated at Ruby General Hospital where he was admitted on 09-06-2017. The complainant no. 1, Anindya Chatterjee was kept under medical surveillance and in such a situation finding no alternative the complainant no. 1 forced to cancel the agreement and claimed refund of the consideration paid and his claim was communicated through e-mail dated 31-07-2018 and 09-08-2018. The complainants claimed that the OP was deficient in giving proper service causing loss and damage to the complainants for which they were entitled to the reliefs as claimed by them in terms of the averments contained in para 15 and 16 of the petition of complaint for which they served demand notice at Annexure-F but that did not yield any result. Hence the complaint case.
In course of hearing exparte it was brought to our notice that the complainants paid a sum of Rs. 32,86,491/- (Rupees thirty two lakh eighty six thousand four hundred ninety one only) to the OP/builder for purchasing the flat which was scheduled for delivery within December, 2015 but that was not materialized which is proved from the documents (Annexure-C) i.e. letter of intimation for possession dated 08-05-2018.
It is also brought to our notice that as per agreement in between the parties there was a provision for giving possession to the purchasers within December, 2015 provided all the dues were cleared. The agreement further indicated that the heading "Cancellation and Penalty"- (1). If the purchasers want to cancel this agreement for any reason whatsoever, in that case the purchasers shall intimate the same in writing and the Megacity Apartments Pvt. Ltd. shall refund the amount received as on that date, by deducting 10%, within a period of 2 months from the date of such cancellation. It is pertinent to mention here that the service tax as paid by the purchasers, shall not be refunded by the Megacity Apartments Pvt. Ltd. APL. (2) If the purchasers fail to clear and pay the full consideration amount within due time, the vendor/developer herein shall always have the liberty to cancel this agreement and shall refund the amount after deducting the service tax and 10% of the amount received as on that date, within a period of 2 months from the date of such cancellation. The documents showing the OPs intention to deliver possession of the flat within December 2015 was not materialized due to the fact that by letter dated 08-05-2018 as the OP admitted that he could not deliver possession of the flat and even on 08-05-2018 the flat was not completely ready for delivery. In such a situation the complainants are at liberty to cancel the agreement in terms of the cancellation of the agreement (which is at page 21 of the file) and the OP was under legal obligation to refund the amount, already received by him but the OP was not to be entitled to recover 10% of the amount, due to the fact that the obligation of performing his part in the agreement was not fulfilled. In the back ground we dispose of the complaint case exparte by directing the OP to refund the consideration already received by him with interest @ 9% p.a. from the date of payment of the amount till its realization. The complainants shall be entitled to recover a sum of Rs. 50,000/- (Rupees fifty thousand) and another Rs. 20,000/- (Rupees twenty thousand) towards compensation and litigation cost respectively . The complaint case is thus disposed of exparte. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER