Shri Partha Kumar Basu, Hon’ble Member:

The complaint case is filed u/s 35 of the Consumer Protection Act 2019 against the OPs in a matter of financial dispute due to non-refund of money by developer company with a prayer for a direction on the OP 63, OP 65 and OP 67 and subsequently amended in the prayer portion of the complaint petition at (i), (ii), (iii) and (iv) to add OP 64 and OP 66, to refund the outstanding amount towards repayment to the Finance company for an amount of Rs.9,34,052/- + 18% interest till actual payment date. The complainant also prays for a direction on the OP 64 to OP 67to pay Rs.6,18,559/-on account of balance EMI + 18% interest alongwith a compensation for Rs.7,00,000/- and a cost of Rs.10,000/-.

The gist of the complaint as averred is that the OP 1 to OP 62 are the group companies and their Directors, as enumerated in the cause list. The OP 1 to OP 62 are represented by OP 63 who is their POA holder, engaged in housing construction. The OP 64 is a partnership firm engaged in housing business and represented by OP 65. The OP 66 developer is represented by OP 67 which is a housing construction company. The complainant being a service holder and a prospective purchaser was looking for a suitable residential accommodation when he came across an advertisement placed by OPs for an upcoming residential complex namely “Pather Panchali” at Garia, Kolkata. Accordingly, the complainant entered into a Sale agreement with the OPs for booking a residential flat along with an open car parking space for the Flat no.303 at Block-A on the 3^rdfloor, admeasuring 1172 Sq.ft. along with allied common facilities and amenities. A total consideration money of Rs.28,29,614/- was agreed for when Rs.1,01,000/- was paid by complainant as booking amount on 10.11.2012 and the agreement for sale was executed on 13.06.2013.After the agreement, the complainant was told by OP 64 that henceforth all the matters pertaining to the flat and the transaction would be handled by the OP 66 who subsequently made all the communications with the complainant. The complainant paid part consideration amount of around Rs.13,98,000/- against the demand letter of OP out of which Rs.4,63,941/- was paid by the complainant and the balance Rs.9,34,052/- was paid by the financer of the complainant of M/s India bulls which were received by the OP 66 and OP 67. In 2016, during construction of 4^th floor of the building, the complainant decided to quit from the allotment of the flat due to personal difficulties and requested OP 66 to arrange for re-sale of his allocated flat to which the Ops expressed their inability and reiterated for payment of further instalments. The complainant sent e-mail to OP for cancellation of booking of the flat dated 10.01.2017 when the OPs by e-mail dated 22.06.2017 agreed to the said cancellation proposal and refund of money advanced by the complainant amounting to Rs.13,98,000/-. In that e-mail the OP confirmed that the OP would keep on making payments equivalent to the EMI of the financer, till the advanced amount is refunded in full to the complainant. The complainant further received e-mail dated 28.12.2017 from the OP 66/OP 67 agreeing to undertake the EMI payments and completing full amount payment by March, 2018. The complainant received back Rs.4,63,948/- by cheque dated 15.01.2018. The OP further requested the complainant for arranging EMI from financer and accordingly the complainant agreed to that proposal when the repayment of EMI of Rs.9,599/- by OP commenced from 22.06.2017 till February 2020 to complainant. The OP further requested the complainant on 24.06.2020to arrange moratorium from the financer as per RBI guidelines due to pandemic to which the complainant agreed. The moratorium expired in October, 2020 and the EMI stood revised to Rs.10,100/-per month, which the complainant intimated to the OP by e-mail dated 02.09.2020. But no amount was received from the OPs as EMI thereafter. In this way the OPs failed to repay the balance amount that the complainant borrowed from M/s India bulls as promised. The OPs did not respond to the legal notice dated 09.03.2021 from the complainant either. Consequent upon the intimation of cancellation of the booking of the flat on 10.01.2017 and non-refund of the part consideration money of Rs.13,98,000/- i.e. failure to refund the advanced money and therefore due to such act of negligence, deficiency of service and unfair trade practices of the OPs, the complainant prays for relief from this Commission for the intentional latches of OPs. The documents as per running page number 18 to 60 were exhibited along with complaint petition in support of the claims of complainant.

The OPs resisted the complaint petition when they denied all the charges as alleged by the complainant. The OP 1 to OP 62 are represented by OP 63. The OP 65 is the authorised signatory of OP 64. The OP 67 is the representative of OP 66 Developer company. Hence all the OPs from OP 1 to OP 67 are duly represented and contested the case. In their W/V and the evidence on affidavits, the OP 63, OP 64 and OP 67contested the case representing balance OPs. The Ld advocate of OP 63, OP 64 and OP 67 contested and also filed evidences on affidavits. The Ld. Advocates advanced their arguments on 19.09.2023, 05.10.2023 and 22.12.2023 by filing BNAs.

In the W/V and as per point 5(a) of the evidence, OPs stated that booking of the subject flat was cancelled mutually by and between the parties and the refund is under process. The Sale agreement was executed on 13.06.2013 when Rs.13,98.000/- was paid by the complainant as part consideration against a total consideration value of Rs.28,29,614/-. As the payment schedule is linked to the stage of construction as per clause no. 8.2 and 8.3 of the Sale agreement dated 13.06.2013, hence the Developer company OP 64 raised the demand notice on 17.02.2016 and 21.10.2016 against each schedule of construction, which the complainant neglected to pay.  Due to such violation and non-payment of demand amount as per sale agreement, the project cash flow got affected. The OP further states that the complainant already received Rs.7,13,548/- against cancellation refund from the OP 64, out of which Rs.4,63,948 /- was refunded on account of contribution paid by complainant from his own resources and the balance of Rs.2,49,600/- was reimbursed to the complainant as EMI. The OP 63, OP 64 and OP 67 stated that their payment of total 26 EMIs @ 9600/- impliedly shows that OPs are not negligent. The OPs also cited force measure conditions as per Clause number 15 in the Sale agreement dated 13.06.2013 due to Covid-2019 pandemic for delay in completing construction job unintentionally. The OPs claimed that the project would be completed within 1 year. They alleged that complainant did not fulfil their part of commitments by making timely payments and submitted that complainant should make payment of interest @ 12% p.a. as per Cl. No.11.2 of the Sale agreement dated 13.06.2013.

Heard and perused, read with records and documents as exhibited.

Points of considerations :

1. Is the complainant a consumer?
2. Are the O.Ps. guilty of deficiency in service and unfair trade practice ?
3. Is the complainant entitled to get reliefs as prayed for?

Decisions with reasons :

Point No. 1:

On perusal of the case record along with the copies of documents, it appears that the complainant wanted to take the services of the developer OPs for purchase of a flat in a proposed construction of a housing complex for which a Sale agreement has been executed on 13.06.2013 by and between the parties and receipts issued, which are exhibited herein.

Therefore, the complainant is a consumer as defined under Section 2(7) of the Consumer Protection Act, 2019.    

As such, the point No. 1 is decided in favour of the complainant and against the OPs.

Point No. 2 & 3

Both the above points are taken up together for the sake of brevity and to avoid repetitions.

Against a total consideration money of Rs.28,29,614/-, Rs.1,01,000/- was paid as booking amount on 10.11.2012 followed by Agreement for sale on 13.06.2013.The complainant paid part consideration of Rs.13,98,000/- against demand letter of OPs out of which Rs.4,63,941/- was paid by the complainant and the balance by India Bulls for Rs.9,34,052/-. The complainant sent an e-mail to OP for cancellation of booking of the flat dated 10.01.2017 and the OP developer explicitly agreed by their e-mail dated 22.06.2017 to the said cancellation proposal and desired to know the mode of refund of the money that was advanced by the complainant amounting to Rs.13,98,000/-. The complainant further received an e-mail dated 28.12.2017 from OP agreeing to repay EMI amount and clearing the full amount by March’ 2018. Though the complainant received back Rs.4,63,948/- by cheque dated 15.01.2018 from the OP, but the balance amount was not refunded in full, to the financer or the complainant. As per OP’s request the complainant agreed and the EMI of Rs. 9,599/- from OPs commenced from 22.06.2017 which continued till February 2020. The OP on 24.06.2020 further requested the complainant to arrange moratorium from the financer as per RBI Guidelines due to pandemic to which the complainant agreed. The construction was supposed to be completed and flat handed over as per Cl no. 9.5 of the agreement by October 2016 with a grace period of 6 months i.e. by 30.04.2017. The moratorium expired in October, 2020 and the EMI stood revised to Rs.10,100/-which the complainant intimated the OP by e-mail dated 02.09.2020. But no amount was received from the OP as EMI thereafter. In this process OPs failed and neglected to refund the total amount even after cancellation of the agreement. The OPs did not respond to the legal notice dated 09.03.2021 from the complainant. Due to such failure to refund the advanced money consequent upon cancellation intimating the booking of the flat on 10.01.2017 and non-refund of the part consideration money of Rs.13,98,000/-, this case was filed and theOPs denied all charges. OP claimed that the booking of the flat was cancelled mutually between the complainant and the OPs and the refund is under process. In the reply to the question no 4 by the OP 63, OP 64 and OP 67, the outstanding balance on account of the OPs have been admitted. As per reply by OPs to question no 8, 9 and 12, complainant intended to cancel sales agreement on 13.06.2017 which was accepted by OPs on 22.06.2017 and thereafter the OPs started EMI repayment from 23.06.2017 and repaid 26 EMI amount till February 2020. In the point no 4 of the BNA filed by the OP 63, OP 64 and OP 67, it is their admitted position that :-

“the ‘subject flat was cancelled by the parties (complainants and opposite parties to this instant matter) with the mutual consent and the refund process is already underway”

It is evident from records that the payment schedule as per clause no. 8.2 and 8.3 of the Sale agreement dated 13.06.2013 is linked to construction and the developer company raised the demand notice against each schedule of construction. It is also noted that the complainant already received back Rs.7,13,548/- against cancellation refund from the OP 64 out of which Rs.4,63,948/- was refunded on account of contribution paid by complainant from his own resources and the balance of Rs.2,49,600/- was reimbursed to the complainant as EMI. There is no quarrel between the parties on these factual matter and these are admitted by counsels of both sides. Hence, the issue to be decided is with respect to the refund of the amount to be paid by the OPs to the financier loan to offset the loan account of the complainant. The committed date of possession as per the Sale agreement dated 13.06.2013 was 30.04.2016 including the grace period of six months. Admittedly cancellation of sale agreement was accepted on 22.06.2017. However, the OPs failed to continue to make repayment beyond October 2020.As per Cl 11.1 of the Sale Agreement the Buyer shall have the right to terminate the Agreement at any time and if the buyer does so, the Developer shall refund to the Buyer all payments received till that date, without any interest, after deducting 10% of the Total price & applicable Service tax. But the OPs have admitted having accepted the cancellation by complainant with a condition to refund the advanced amount in the form of EMI demanded by the financier company which is beyond the scope of the covenants of the Sale agreement, but established through exchange of e-mails between contesting parties. As such, the eventuality of failure to make the further payment to purchase the flat by the complainant does not arise and this argument advanced by the OPs is untenable. In the instant case, there is a delay of three and half years in refunding the advanced money by the OPs.  As the OPs have mutually accepted the cancellation of the booking in question, they can’t forfeit the earnest money or invoke the cancellation clause. Hence, the complainants in the present circumstances have a legitimate right to claim refund with interest.

It is evident from the records that the Complainant has not defaulted. Rather OPs /Builder have defaulted in fulfilling their promises to refund money in time. The Complainant paid a total advance of Rs.13,98,000/- out of which Rs.4,63,941/- was paid by him from own fund & balance Rs.9,34,052/- was paid by financier on complainant’s loan account. The complainant cancelled the booking on 10.01.2017 to which the OP agreed through e-mail dated 22.06.2017. The complainant received back Rs.4,63,948/- by cheque dated 15.01.2018 from the OP. It is the express condition of the OP as per emails and agreed by complainant as averred, that OPs would keep on making EMI payment demanded by financer till the advanced amount is refunded in full. The complainant received further e-mail dated 28.12.2017 from OP agreeing to clear all dues in full within March, 2018. The OP made repayment of 36 EMIs @ 9,600/- totalling to Rs.2,49,600/- from 22.06.2017 till February 2020. The OPs further requested the complainant on 24.06.2020 to arrange moratorium from the financer due to pandemic to which the complainant agreed. The moratorium period expired in October, 2020 and the EMI stood revised to Rs.10,100/- per month meanwhile, which the complainant intimated the OP by e-mail dated 02.09.2020. But no amount was received from OPs thereafter. In this process OP failed and neglected to refund the balance dues even after cancellation of the agreement. Though OPs claimed that booking got cancelled mutually & refund is in process, but the consumer can’t wait indefinitely for the refund since booking was cancelled on 10.01.2017, as per admitted position of OP. Though the payment schedule is linked to construction against the demand notices raised by developer on 17.02.2016 and 21.10.2016 against each schedule of construction which remained unpaid by complainant, but the OP failed to provide any piece of document about taking any step to approach the complainant to rescind the sale agreement, had they been disagreeing to the agreement conditions. Rather the OPs approached complainant for re-arrangements of repayment schedule from time to time, instead of refunding the advanced money upfront. The force majeure conditions as cited by OPs in the Cl. no.15 of the Sale agreement dated 13.06.2013 is also not tenable, as no scrap of document or administrative circular got exhibited which mandates that Covid-2019 pandemic was declared as force majeure condition. The contention as stated by the OP that the project would be completed within 1 year appears to be not forthcoming, since 11 months out of that already elapsed, without refund of a single penny. So the allegation of OP that complainant has not fulfilled their part of responsibilities is untenable, since the booking for flat got cancelled admittedly by both sides.

Also there is no provision here to adjudicate the counter-claim of the developer being not a consumer in this complaint case.

Therefore the complainant is entitled for getting refund of Principal amount of Rs.9,34,052/- that was advanced to OPs after deducting the amount of Rs. 2,49,600/- which the OPs already refunded to complainant directly and the differential works out to be Rs. 6,84,452/-.The OPs are also liable to reimburse the ‘interest’ component that the complainant has to make repayment to his financier since the ‘Principal’ amount is yet to be fully paid of.

As such, the point nos. 2 and 3 are decided in favour of the complainant and against the OPs. We hold that the OP 63, OP 64, OP 65, OP 66 and OP 67 to be liable jointly & severally for refund.

For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off  with the following directions/reliefs: -

Hence, it is

                                                          ORDERED

That the consumer complaint being no. CC/144/2021, be and the same, is hereby allowed on contest against the OPs with cost with following orders :-

1. The OP 63, OP 64, OP 65, OP 66 and OP 67 are jointly and severally liable and are directed to refund the amount of Rs. 6,84,452/-(Rs. Six Lac Eighty Four Thousand Four Hundred and Fifty two) alongwith a compensation in the form of simple Interest @ 9% per annum, from the date of acceptance of cancellation of booking i.e. 22.06.2017 by the OPs, till the actual date of refund.
2. The OP 63, OP 64, OP 65, OP 66 and OP 67 are jointly and severally liable and are directed to make payment to the complainant to reimburse the ‘interest’ component for the period from March 2020 till date, that the complainant had to make repayment to his financier in the form of EMI. The Complainant will arrange to provide a statement obtained from his financier company to the OPs to that effect within 45 days from the date of this order. Such refund amount will be first utilised for repaying the outstanding amount of such loans.
3. The OP 63, OP 64, OP 65, OP 66 and OP 67 are jointly and severally liable and are directed to make payment of cost of litigation to the tune of Rs. 10,000/- (Rs. Ten Thousand only) to the complainant.

All the above payments are to be made within a period of 90 days from the date of passing of this Order, failing which the payable amounts will accrue a simple interest @ 12% per annum till their realisation.

In default, the complainant will be at liberty to put the entire decree into execution after the expiry of 90 days as per provisions of law.

  Let a plain copy be given to the parties free of cost as per CPR 2005.

  That the final order will be available in the following website www.confonet.in.

   Dictated and corrected by me.  

                Member