Judgement HON’BLE SUDIP NIYOGI PRESIDENT FACTS The fact leading to this complaint, in brief, is that on being emerged as a successful applicant in a “Draw of Lots” for Phase- 7, Mass Housing Complex namely, “Shukhobrishti”, an apartment being No- M/80/1401 at E-1/E-2, Action Area- III, New Town, Kolkata- 700156, organized by Respondent No. 1 (hereinafter referred to as the said “Apartment”) had been provisionally allotted to the Complainant at a price of Rs.27,11,247/- excluding any applicable taxes, levies, cess etc. As per general terms and conditions, the said Apartment was to be handed over within thirty-six months from the date of provisional allotment being Ref. No- P-7/127919/PAL dated 12/12/2016. In terms of the payment schedule, the Complainant paid a sum of Rs.1,50,000/- towards application money on 07/04/2016 and Rs.8,25,000/- on 03/02/2017 towards allotment money. A tripartite agreement dated 07/07/2017 was executed by and between the Complainant, Respondent No. 1 and Respondent No. 4 in respect of the allotment of the said Apartment and in connection with the Complainant’s application for sanction of loan to Respondent No. 4. Thereafter, Respondent No. 4 paid Rs.14,50,000/- by two equal installments on 10/07/2017 and 12/12/2017 towards the first and second installment to Respondent No. 1. Thus, on behalf of the Complainant in total Rs.31,32,319/- towards consideration was paid to the Respondent No. 1 along with payments with regard to parking space. One registered agreement for sale dated 07/07/2017 was executed. A 4-wheeler in-Stilt parking No. M-80/11 was allotted through “Draw of Lots” valued at the rate of Rs.4,50,000/- out of which he paid Rs.4,04,153/- as first installment for parking space on 23/05/2018 to Respondent No. 1 to 3. But unfortunately, the Respondents failed either to complete the construction or to hand over the possession of the said Apartment within the stipulated time. Accordingly, he sent a demand notice through his Advocate on 02/02/2021 requiring the Respondent No. 1 to 3 to refund the entire paid consideration amount including car parking space along with interest @18% p.a. However, the Respondent No. 1 by email message on 01/03/2021, requested the Complainant to bear some more time so that they could complete the construction. The Complainant claimed to be suffering from cancer and under tremendous financial crunches. Despite that he has to pay the monthly installment regularly to Respondent No. 4. As the Respondents failed to deliver the flat, nor refund the amount paid by him, he filed this complaint against the Respondents seeking reliefs in the form of a direction upon respondent No. 1, 2 & 3 to refund the entire consideration amount paid by him and also compensation and monetary loss etc. amounting to Rs.64,44,890/-, in total. Respondent Nos. 1, 2 & 3 by filing one written version through their authorized representative contested this complaint wherein they raised a question about the maintainability of the instant case. They have denied the allegations of the Complainant and contended that the general terms and conditions with regard to the project does not provide giving compensation in the event of delay in handing over the possession of the allotted apartment. However, the payment made by the Complainant with regard to his allotted apartment was not denied by them. Likewise, Respondent No. 4 filed a separate written version praying for an order to expunge their name as no allegation was there against them in the complaint. They claimed to have given loan amounting to Rs.21,25,000/- to the Complainant and they paid a huge amount to Respondent Nos. 1 to 3 on behalf of the Complainant towards his apartment. They also admitted the tripartite agreement which was executed by and between the parties. Now, the points for consideration in this case are- - Is the instant complainant maintainable?
- Is the Complainant entitled to the relief (s) as prayed for?
FINDINGS Point No.(1):- The Respondent Nos.1, 2 & 3 raised a dispute regarding the maintainability of the instant complaint by stating that this Commission has got no jurisdiction to entertain the instant complaint. According to them, after the abrogation of the West Bengal Housing Industry Regulation Act, 2017 by the Hon’ble Supreme Court in the year 2021, the Real-Estate (Regulation and Development) Act, 2016 in RERA is applicable. According to Section 79 of RERA that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the Adjudicating Officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other Authority in respect of any Action taken or to be taken in pursuance of any power convert by or under this Act. So, Respondent Nos.1, 2 & 3 claimed that this Commission is without jurisdiction to entertain the instant complaint. On the other hand, as against this, Complainant claimed to have approached this Commission rightly and according to them several charges have been made in the Consumer Protection Act to provide major relief to home-buyers and it has been ruled that the developers cannot force the buyers to settle their disputes by restraining them from approaching Consumer Commission. Here in the present case, what we find the Complainant in whose favour apartment was allotted by Respondent Nos.1, 2 & 3 filed this complaint praying for refund of the money paid by him making certain allegations against the Respondents, particularly, Respondent Nos.1, 2 & 3. In this regard we find that Hon’ble Apex Court in Imperia Structures Ltd. Vs. Anil Patni held that the remedies under the Consumer Protection Act were in addition to the remedies available under special statute. Section 79 of the RERA Act does not in any way bar the commission or forum under the provisions of the Consumer Protection Act to entertain any complaint.Therefore, taking into consideration facts and circumstances of the complaint we hold that this Commission has got the jurisdiction to entertain the instant complaint. Therefore, the point is decided accordingly. Point No.(2) :- We have considered the evidence of the parties and also interrogatories and replies thereto. We have also gone through the documents filed on behalf of the parties as Annexures.What we find admitted in this case are that the Complainant had been allotted provisionally the apartment no. M/80/1401 (SPRIHA) at “Shukhobrishti”, (Phase – 7) plot no. E-1/E-2, Action Area- III, New Town, Kolkata- 700156 (Annexure – C), following his application no. P-7/127919/PAL at a price under Installment Payment Scheme of Rs.27,11,247/- by a communication dated 12/12/2016 by Respondent Nos.1. Further one 4-wheeler in-stilt parking space no.M-80/11 against his said allotted apartment had also been allotted to the Complainant of which consideration was Rs.4,50,000/- had also been provisionally allotted on 20.02.2018. (Annexure- F) Complainant claimed to have paid Rs.1,50,000/- towards application money on 07.04.2016 and Rs.8,25,000/- towards the allotment money on 03.02.2017 for his allotted apartment. Subsequently, he also paid @ Rs.7,25,000/- on 10.07.2017 & 12.12.2017 towards first and second instalment respectively. (However, the Complainant claimed to have paid Rs.31,32,319/- including taxes and other charges etc for his apartment and Rs.4,04,153 for the parking space to Respondent No.1. In support of his contention, Complainant filed a copy of the payment chart with regard to the payment made to the Respondent No. 1 which is marked as Annexure – G. This payment chart revealed that Complainant paid to the Respondent No.1 Rs.30,74,971/- in total as shown in column- 10 from left under the Head ‘Total’. In this regard, the Respondent Nos.1, 2 & 3 did not deny the claim of the Complainant as to the amount of payment made to them. So, we are to hold that the amount paid to Respondent No. 1 for the flat and the car parking space etc which is found to be Rs.30,74,971/- as per Annexure – G. It is also admitted that one tripartite agreement was executed between the parties on 07/07/2017. It was held therein that construction would be completed by June, 2020. Complainant alleged that the Respondent Nos. 1, 2 & 3 failed and/or neglected to complete the construction and deliver his apartment with the car parking space within the said time limit and there was deficiency in service on their part. So, he prayed for refund of the money paid by him. He further claimed that as he has to spend for his treatment and at the same time has to pay EMIs towards his loan from Respondent No. 4, he has been under serious financial threat. In their evidence as also written argument, Respondent Nos.1, 2 & 3 denied the allegations of negligence and deficiency in service on their part. According to them, various unforeseen reasons which were beyond their control and also due to covid – 19 pandemic, they could not continue the construction process. They also claimed that the said project is a heavily subsidized one the model of which was conceptualized and prescribed by West Bengal Housing Infrastructure Development Corporation Limited wherein the prices of different categories of apartments were capped and also the terms and conditions GTC does not provide any payment for compensation and interest for delayed completion. They also claimed that the work on the project is going on in full swing and they are trying their best to deliver the possession to the allottees. However, during hearing, the Complainant made it clear that he does not want to proceed with the project i.e. his apartment and wants to get refund of the amount paid by him for which he had issued a letter for refund to the Respondents. Respondent Nos. 1, 2 & 3 claimed that on receipt of the request of the Complainant in March, 2021 for refund, they tried their best to process a refund expeditiously on humanitarian ground subject to submission of documents relating to his treatment which was communicated to him by email dated 01.03.2021, but he failed to submit the documents. However, the facts remain, the complainant did not get any refund. Admittedly, complainant got loan from Opposite Party No. 4 in order to finance the amount of consideration to be paid for his apartment and car parking. Though in the tripartite agreement, the time limit of construction was given as June, 2020 but at the same time, there was provision for extension of the said time limit although no specific period of extension was mentioned. It may be mentioned here that in the case of buying a flat or apartment, the buyer has to procure the amount of expenditure including consideration and it is the absolute responsibility of the buyer and vendor cannot be made liable to entangle with this. Then in case of withdrawal from the agreement made by the buyer from the transaction at a subsequent stage for any reason whatsoever, the resultant financial loss if any, cannot be shifted in its entirety to the vendor or developer. With this analogy in view, the complainant, in the given facts and circumstances of this case can at best get certain amount of interest on the amount paid by him to Opposite Party No. 1 in case of refund. Therefore, on consideration of the materials on record, we find that considering the circumstances, the complainant should get relief in the form of a refund of Rs.30,74,971/- along with interest @10 % p.a. from 01.03.2021 when OP No.1 gave reply to the request for refund. This apart, he is also entitled to Rs.5000/- towards cost of litigation. Accordingly, it is ORDERED That the instant complaint be and the same is allowed on contest against Opposite Party Nos. 1, 2 & 3 and dismissed against Opposite Party No. 4 also on contest. Opposite Party Nos. 1, 2 & 3 are directed to pay Rs.30,74,971/- to the complainant along with interest @ 10 % p.a. from 01.03.2021 until realization in full. Opposite Party Nos. 1, 2 & 3 are also directed to pay Rs.5000/- towards cost of litigation to the complainant. The Opposite Party Nos. 1, 2 & 3 are jointly or severally liable to pay the awarded sum within 45 days from the date of this order, failing which the complainant shall be at liberty to proceed in accordance with law. Dictated and corrected by me |
