Prabir Kumar Paul vs T. Annamalai

Heard Mr. Rajat Agnihotri, Advocate, for the complainant.

Prabir Kumar Paul has filed above complaint, for directing the opposite party to (i) refund Rs.23755754/- with interest @12% per annum, from the date of deposit till the date of refund; (ii) pay Rs.1000000/- as compensation for mental agony and harassment; (iii) pay costs of the litigation; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that the opposite party launched a group housing project in the name of “Satsanga” at Labour Donnais Street, Punduchery, in the year 2012 and made wide publicity of its amenities and facilities. Believing upon the representation of the opposite party, the complainant, through email dated 18.09.2018, proposed to buy one Penthouse, super built-up area 2515 Sq.ft., for Rs.24665000/- and making payment in instalments, which was accepted by the opposite party. As per demand of the opposite party, the complainant paid Rs.1200000/- on 19.10.2012, Rs.3000000/- on 21.03.2013. The opposite party executed a Memorandum of Agreement dated 28.04.2013, in respect of Penthouse No.A-4, Fourth floor of “Satsanga”, super built-up area 2515 Sq.ft., for Rs.24665000/-. The complainant paid Rs.3000000/- on 29.06.2013, Rs.3000000/- on 27.09.2013, Rs.3000000/- on 01.12.2013, Rs.3000000/- on 01.12.2013, Rs.3000000/- on 05.03.2014, Rs.3000000/- on 29.09.2014 and Rs.1555754/- on 24.03.2017 (total Rs.23755754/-). Clause-7 of the agreement provides that the promoter undertakes to complete the construction within two years from the date of obtaining approval from the Pondicherry Planning Authority plus a grace period of six months. The complainant inquired about handing over possession of the penthouse in August, 2015, October, 2015 and May, 2016, and all the times some evasive reply used to be given that the construction was near completion. In March, 2017, the opposite party demanded Rs.1555754/- in the head of service tax which was deposited on 24.03.2017. On inquiry, the opposite party through email dated 22.03.2017, informed that penthouse would be positively completed within six weeks. In July, 2017, the complainant came to know that construction of penthouse was not started then he wrote an email dated 13.07.2017 demanding to return his money. The opposite party, however, did not respond. The complainant, through email dated 02.10.2017, sought for a meeting with the opposite party but the opposite party again did not respond. The complainant, then, visited the site on 26.10.2017 and found that the construction of penthouse was far away from completion. The complainant took photographs of the site and shared with the opposite party through email dated 26.10.2017 and requested to refund his money but the opposite party did not respond. The complainant again through email dated 12.12.2017 requested the opposite party to refund his money. After continuous follow up, the opposite party held a meeting on 01.09.2018 and agreed to refund 75% of the principal amount till 30.09.2018 and for 25% of principal amount and interest, post-dated cheques would be given. The complainant, through email dated 05.09.2018, sought acknowledgement of the opposite party of above proposal in writing, but the opposite party did not respond. The complainant again met with opposite party in October, 2018, then again some false assurances were given. The complainant again gave an email dated 19.12.2018, which was not responded then filed this complaint on 22.03.2019, alleging deficiency in service.

The notice issued in the complaint was served upon the opposite party on 30.04.2019 but the opposite party neither put his appearance nor filed written reply. By the order dated 13.08.2019, the opposite party was proceeded ex-parte. The complainant has filed Affidavit of Evidence of Prabir Kumar Paul, documentary evidence and written synopsis.

I have considered the arguments of the counsel for the complainant and examined the record. The complainant has filed copy of Memorandum of Agreement dated 28.04.2013, by which, the opposite party had agreed to sell Penthouse No.A-4, Fourth floor of “Satsanga”, super built-up area 2515 Sq.ft., for Rs.24665000/-. The complainant has paid total Rs.23755754/- in between 19.10.2012 and 24.03.2017 through cheques and RTGS. Under Clause-7 of the agreement, the promoter undertook to complete the construction within two years from the date of obtaining approval from the Pondicherry Planning Authority plus a grace period of six months. The period of two years six months expired in October, 2015. Although about 90% of the consideration has been realized till September, 2014 but possession was not handed over till the date. All the above facts have been proved from documentary evidence and Affidavit of Evidence of the complainant. It is well settled that a home buyer cannot be made to wait for unlimited period for possession.

ORDER

In view of aforesaid discussions, the complaint is partly allowed with cost of Rs.50000/-. The opposite party is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund and the cost of Rs.50000/-, within a period of two months from the date of service of a certified copy of this judgment upon him. After expiry of two months from the date of service of a certified copy of this judgment, the opposite party is liable to pay interest @12% per annum on above amounts.