DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __158_ _ OF ___2016
DATE OF FILING :21.12.2016 DATE OF PASSING JUDGEMENT: 9.10.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Smt. Gita Biswas, wife of Samir Biswas of 310, Vivekananda College Road, Kolkata – 63.
O.P/O.Ps : 1. Vibyor Allied Infrastructure Ltd. 46D, Rafi Ahmed Kidwai Road, Kolkata – 16, P.S Park Street.
2. Vibyor Housing Limited, P-25, C.I.T Road, Kolkata-114.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
This is a complaint filed under section 12 of the C.P Act, 1986 by the complainant, alleging deficiency in service on the part of the O.Ps.
The facts leading to the filing of the instant case by the complainant may be epitomized as follows.
The O.P-2 ,being a sister concern of O.P-1, is the developer. A Sale Agreement was effected on 31.12.2012 between the complainant and the O.P-2 and thereby O.P-2 agreed to sell a 2 BHK flat having super built up area 663 sq.ft as succinctly described in Schedule C-Unit to the above agreement to the complainant for a total consideration price of Rs.10,60,000/-. Possession was to be delivered within 36 months of the date of obtaining sanctioned plan. Rs.3,94,014/-was paid in all by the complainant to the O.P-2 on different dates. To his utter surprise, the complainant came to see that no step was taken by the developer towards the beginning of the project; not to speak of the construction of the flats. So, after having waited for a long period, the complainant has filed the instant case, praying for delivery of possession of the flat, registration of the sale deed and payment of compensation, or in the alternative refund of the money paid by him to the O.Ps and also for compensation. Hence, this case.
O.P nos. 1 and 2 have been contesting the case by filing written statement, wherein it is mainly contended that an agreement was executed by O.P-2 on 31.12.2012 in favour of the complainant and thereby the O.P-2 promised to sell a flat as described in the said agreement. Consideration price of Rs.3,94,014/- was also received from the complainant by him. It is further submitted by the O.Ps that the State Government suddenly identified 72 companies as being involved in Sponzy Scheme and also restrained strictly the said companies from transferring or creating any third party interest in favour of any other person , vide Memo no. 1738/1M-101/2013 dated 10.5.2013 issued by the Directorate of Registration and Stamp Revenue, Government of West Bengal. O.P-1 is one of the aforesaid 72 companies. They also moved a writ petition before the Hon’ble Calcutta High Court ,challenging the aforesaid direction of the Government and the said writ petition is still pending before the Hon’ble High Court . In that case also Hon’ble High Court has been pleased to order not to create any third party interest. So, according to them , there is no cause of action arisen for bringing the instant case by the complainant and, therefore, the complaint should be dismissed in limini.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged in the complaint?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit has been filed on behalf of both the parties and the same are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
On perusal of the copies of the order passed by Hon’ble Calcutta High Court in the writ application, as filed on record, it is found that the O.Ps have been restrained by the Hon’ble Calcutta High Court from creating any kind of third party interest or to transfer the assets of the companies. There is no paper produced before us to establish that the instant complaint is also involved as party in those writ applications. That apart, we are of the opinion that there is no restrictions whatsoever imposed by the Hon’ble Calcutta High Court on the refund of the money paid by the complainant to the O.P by virtue of the sale agreement dated 31.12.2012.
Now to see, whether the O.Ps are defaulter in terms and conditions of the agreement dated 31.12.2012. Execution of the agreement by the O.P-2 is not denied. Similarly receipt of Rs.3,94, 014/-as part payment of consideration money is not also denied by the O.P-2. It is the fact that O.P-2 agreed to complete the construction of the flat within 3 months from the date of obtaining building plan, vide clause 6.4.1. It is also the fact that he agreed to deliver the khas possession of the flat to the complainant within 30 days of the date of completion which will commence from the date of expiry of 36 months of the date of obtaining building plan. These provisions of agreement have not been honoured by the developer. It is true that it has not been possible for the developer to honour these provisions of the agreement by way of implementation of his project ,as sword of Damocles came down heavily on his head, when the Government declared 73 companies including the company of the O.Ps as being involved with Sponzi Scam. So, it is found that the O.Ps have nothing to do with the implementation of their project in the face of changed circumstances and, this being so, the O.Ps cannot be blamed for non-execution of their project. The Sale Agreement was executed in the year 2012 and the ban was imposed by the Government on the O.Ps in the year 2013 and, therefore, it is naturally not possible for the O.P company to carry into effect the project ,for which they received money from the complainant.
Under such circumstances, we are of the opinion that it will not be just and proper towards any compensation to the complainant for the loss which has been sustained by her due to non-execution of the project by the O.P company. But, fact remains that the O.P company has received Rs.3,94,014/- from the complainant and this sum is likely to fetch a considerable amount of money as interest to the O.P company. Had the said amount been in the custody of the complainant, the complainant would have earned a good amount of interest upon that money, she has lost it and this los is to be compensated by the O.P Company by way of payment of penal interest.
In the consequence, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Ps with a cost of Rs.10,000/- .
The O.P nos. 1 and 2 , who will remain jointly and severally liable to make payment ot the complainant, are directed to refund Rs.3,94,014/- to the complainant with penal interest @9% p.a from the date of last payment i.e 31.12.2012 till full realization thereof, failing which, the complainant is at liberty to execute this order through the machinery of the Forum.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
