DIST. CONSUMER  DISPUTES  REDRESSAL  FORUM

NORTH 24 Pgs., BARASAT.

C. C. NO-136/2017

Date of Filing:                            Date of Admission:-            Date of Disposal:

16.03.2017                                   06.04.2017                               16.04.2019

Complainant :-             Sri. Susmit Ranjan Bandopadhyay,

                                      S/o Late Chira Ranjan Bandopadhyay,

                                      Customer ID no-NDSII/061,

C/o Mr. Anjan Kumar Banerjee,

                                      Lalkuthi Para, P.O.-Suri,

District-Birbhum, Pin-731101,

                                      West Bengal.

=Vs=

OP/s :-                 1.      Bengal Shelter Housing Development Limited,

                                   (A Joint Sector Company with

West Bengal Housing Board),

                                      CB-63, Sector-I, Salt Lake City, Kolkata-700 064.

                             2.      The Managing Director,

                                    Bengal Shelter Housing Development Limited,

                                      (A Joint Sector Company with

West Bengal Housing Board).

                                      CB-63, Sector-I, Salt Lake City, Kolkata-700 064.

P R E S E N T              :-          Sri. Bankim Chandra Chattopadhyay………..…..President.

            :-          Smt. Silpi Majumder  ……………………………………Member.

             :-         Smt. Monisha Shaw …………………………Member.

 Final Order

This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OP as the OP did not refund the amount as paid by him for purchasing one flat till filing of this complaint.

The brief fact of the case of the Complainant is that by the letter date 05.04.2010 the OPs have intimated the Complainant regarding allotment of an apartment no-ND/S-II/2/3D (Type-D) of Sohini II (UMIG) Block-2 on the third floor measuring approximately 820 square feet at Neel Diganta Project. After entering into an agreement dated 24.08.2010 by and between the Complainant and the OPs the Complainant agreed to purchase the said apartment. As per the agreement the Complainant was supposed to pay an amount of Rs.10,49,600/- and an amount of Rs.1,00,000/- for open car parking space totaling of Rs.11,49,600/- as entire consideration amount for the said flat and details payment schedule was mentioned in the said agreement.

Cont………….2

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C. C. NO-136/2017

It was agreed by the OPs to hand over the flat to the Complainant within 48 months after completion of the entire construction along with development works in the said plot. The Complainant has already paid a sum of Rs.3,70,445/- to the OPs in terms of the said agreement dated 24.08.2010, but even the foundation work is still lying incomplete. By issuing a letter dated 06.02.2013 the OPs intimated the Complainant regarding completion of piling work and commencement of foundation work. Again on 22.03.2014 the OPs intimated the Complainant by issuing a letter regarding completion of piling work and commencement of foundation work and further intimated that the construction work was delayed due to some unavoidable circumstances. Having no other alternative and after expiry of the stipulated time to hand over the flat, the Complainant by a letter dated 15.09.2014 requested the OPs to refund the entire amount paid by him in terms of the agreement dated 24.08.2010, but the OPs did not take any step to refund any amount to the Complainant even after receiving the said letter dated 15.09.2014. By issuing another letter dated 01.11.2014 the Complainant once again requested the OPs to refund the entire amount as paid by him, but to no effect. Subsequently in reply to the letters dated 15.09.2014 and 01.11.2014 the OPs have acknowledged the receipt of the said two letters and also expressed their willingness to refund the entire amount as paid by the Complainant by issuing letter dated 17.03.2015. The OPs have also assured that they were in process of arranging money for such refund and within next eight month they will refund the entire amount.  It is pertinent to mention that by the said letter the OPs also made a proposal for shifting his booking at Neeldiganta at Barasat to Sisirkunja at Madhyamgram which indicates cancellation of the Neeldiganta Project, but the same have not yet been communicated to the Complainant. By issuing letter dated 01.05.2015 the Complainant intimated the OPs that he was not inclined to shift his booking at Neeldiganta, Barasat to Sisirkunja, Madhyamgram and he again requested to refund the entire amount as paid, but the OPs did not refund him any amount inspirte of receipt of the said letter. Further prayer was made by the Complainant by issuing a letter dated 05.12.2016 to refund of the amount, but no fruitful result has yet been yielded. Though he paid Rs.3,70,445/-, no work has been commenced till now on the site in terms of the agreement dated 24.08.2010 nor they refund the paid amount. Such action of the OPs can be termed as deficiency in service as well as unfair trade practice. In this manner the OPs are harassing him intentionally. As the Complainant has paid part consideration amount to the OPs, he is a consumer under the eye of law. Finding no other alternative the Complainant has approached before this ld. Forum by filing this complaint praying for direction upon the OPs to refund the amount of Rs.3,70,445/- along with an interest @10% p.a. on the said amount, to pay compensation to the tune of Rs.7,00,000/- due to harassment, mental agony and pain and litigation cost of Rs.50,000/- to him.  

Cont………….3

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C. C. NO-136/2017

The petition of complaint has been contested by the OPs by filing conjoint written version contending that the present OPs being a development company is engaged in providing real estate services to the subscribers at large all over India and also in West Bengal very honestly, sincerely and carefully maintaining its good will and prestige in the field of real estate services. The Complainant inspected the area of the flat and being satisfied with its entire respect and perusing the relevant papers regarding the building and the sanctioned plan along with its other common facilities had expressed his desire to purchase one complete flat along with one open car parking space and entered into an agreement for sale on agreed consideration amount of Rs.11,49,600/- in total on 24.08.2010. To that effect the OPs issued an allotment letter mentioning the terms of the contract. The OPs issued allotment letter in favour of the Complainant intimating him that due some unavoidable reason the construction work of the said project could not be started and for this reason the Complainant was requested for shifting his booking from the said project to another project of the OPs at Madhyamgram, but the Complainant did not agree with such proposal. Not being agreed with such offer given by the OPs the Complainant has filed this complaint with malafide intention to get some illegal benefit from the OPs. According to the OP that as there is no deliberate laches or negligence on the part of the OP, the Complainant is not entitled to get any relief as sought for in this complaint. The Complainant is well aware of the Force Majeure clause of the said agreement and as the Complainant knowing fully well the said clause entered into an agreement with the OPs and also filed this complaint, the complaint has no merit at all. The OPs have assigned the reasons for which they could not start the project i.e. i) delay for local syndicate problem with the help of some plot holder who intends to extra money from the developer filed litigation and now all the project land is litigated property and project is pending, ii) Due to the aforesaid dispute the electric sub-station is not possible to install, ii) Temporary or permanent, interruption in the supply of material or utilities serving the project Neel Diganta in connection with the work, iv) Disturbance created by local problem, & v) Non-availability of workmen as per the requirement. Therefore as the abovementioned conditions were beyond the control of the OPs, for this reason delay cropped up in the construction of the project. So under this circumstances question did not arise to give the possession and delivery in the said flat to the Complainant within the stipulated period. Due to non-supply of electric power from the end of the WBSEDCL it was impossible on the part of the OPs to complete the project and hand over the same to the intending purchasers. The above facts was duly intimated to the Complainant wherein cause for delay was explained. But the Complainant suddenly changed his mind and demanded the refund of the amount as paid by him, the OPs are also ready and agreed to refund the same, but the Complainant has claimed compensation and litigation cost along with the principle amount, which he is not at all entitled to get as per the terms and conditions of the agreement. According to the OPs this complaint is liable to be dismissed having no merit at all.

Cont………….4

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Both parties have adduced evidence on affidavit along with several papers and documents in support of their respective contentions. The Complainant put some questionnaire and the OPs have replied the same on affidavit.

We have carefully perused the record; documents, and heard argument advanced by the Ld. Counsel for the both parties at length. It is seen by us that there are some admitted facts in the case in hand i.e. the Complainant being intended to purchase one flat along with one open car parking space approached to the OPs, being satisfied with the documents and papers both parties have entered into an agreement for sale, total consideration was settled at Rs.11,49,600/-, an allotment letter was issued by the OP in favour of the Complainant along with some terms and the conditions mentioning therein, as per the said GTC the Complainant paid 3,70,445/- to the OPs, it was committed by the OPs in the agreement that within 48 months the entire project will be completed in all respect, the OPs could not complete the construction, the OPs could not deliver the possession to the Complainant within the said stipulated period or thereafter even on the date of filing this complaint. The allegation of the Complainant is that as the OPs could not complete the construction of the said project he requested the OPs for refund of the amount as paid by him to the OPs, but though at the very outset assured him that they will refund the entire paid amount to him, but subsequently the OPs did not bother to take any step to refund him the entire amount. Several written correspondences was made by the Complainant, some replies were given by the OPs promising to refund the same, but ultimately have failed and neglected to keep their commitment. As the OPs have failed to redress the grievance of the Complainant, hence by filing this complaint the Complainant has sought for some reliefs as mentioned in the petition of complaint.

The rebuttal case of the OPs is that due to some local problems as mentioned in the written version they could not complete the construction work and for this reason possession could not be provided to the Complainant. The OPs have admitted that the Complainant has paid a sum of Rs.3,70,445/- towards part consideration amount for the flat and car parking space. As there is Force Majeure clause in the terms of the agreement and the Complainant admitting the same put his signature in the agreement, now he cannot go beyond the same. The OPs are ready and willing to refund the paid amount, but not ready to pay compensation as sought for. According to the OPs the complaint is liable to be dismissed.

The Ld. Counsel for the OPs has mentioned that due to some local obstructions i.e. syndicate problem, non-installation of electric sub-station, interruption in supply of building material and non-availability of workmen etc. the construction work could not be completed and hence not be given to the Complainant. As the said problems/objections were beyond the control of the OPs, there is no deficiency in service on behalf of the OPs.

Cont………….5

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Moreover where the Complainant has accepted the Force Majeure clause in the agreement, now he cannot travel beyond the same. In this respect we are of the view that though the OPs have mentioned the said problem in the written version, but no convincing and corroborative evidence is adduced in support of such contention. In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of Jagdish Chand Rana & Another vs. M/s. Granite Gate Properties, wherein the Hon’ble NCDRC did not consider the demonetization as a valid ground of the delay in completion of the project. According to us the said ruling can be implemented in the case in hand.  Mere written plea without any documentary evidence cannot be accepted at all in the eye of law. Hence the cause as assigned by the OPs for such delay/non-construction cannot be entertained.

The Ld. Counsel for the OPs has submitted that due to non-construction of the present project within the stipulated period the Complainant was asked to accept another flat in another place of the project of the OPs by issuing letter, but the Complainant refused to accept the same. Hence there is no deficiency in service on the part of the OP. In this regard we may rely on the judgment passed by the Hon’ble NCDRC in the case of Joti Lal Khanna & Another vs. Unitech Limited, reported in 2018 (1) CPR 810 (NC), wherein it has been held that if for any reason the developer is not in a position to offer the apartment, as agreed herein, the developer may offer the Appellant Allottee/s alternative property or refund. Upon perusal of the said judgment in our opinion the ratio of the said judgment can be implemented in the instant complaint as in the relied case the Hon’ble NCDRC was not pleased to observe that if offer is given to the purchaser for alternative property instead the property which he was intending to purchase, then deficiency will not cropped up. In the said judgment it is not hold that offer for the alternative property should be accepted by the purchaser, rather it is hold that in case of failure to deliver the schedule property to the purchaser, then offer can be made either for alternative property or refund of the paid amount along with compensation in the form of interest. In the relied case the Hon’ble NCDRC was pleased to direct to refund the paid amount along with interest @10% p.a. and litigation cost. In the case in hand the Complainant booked the flat at Neel Diganta, due to non-construction of the said project the Complainant was requested to accept another project at Sisirkunja subject to his interest. But without being interested with such proposal of the OPs being frustrated the Complainant requested the OPs to refund him the entire money as paid by him along with agreed interest. But since then till filing of this complaint we have noticed that the OPs did not take any initiative to refund of the paid amount to the purchaser inspite of giving him assurance in writing. Such inaction of the OPs can easily be termed as deficiency in service.

Cont………….6

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The Ld. Counsel for the OPs has further argued that in case of withdrawal/refund of the amount as paid, no claim for any damages shall be tenable in the event of cancellation of the allotment on any ground whatsoever in view of the Clause-6 of the GTC. In this respect we are to say that the said clause is related to withdrawal of application/cancellation of booking, not related to the failure on the part of the OPs for construction of the building and delivery of the possession in the questioned flat to its intending purchaser. In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of Shrihari Gokhale & Another vs. Marvel Omega Builders Private Limited & Another, reported in 2018 (3) CPR 402 (NC), wherein it has been held that buyer cannot be made to wait for indefinite period for getting possession of property purchased by him. In the said case also the Hon’ble NCDRC was pleased to direct the OP-builder to refund the paid amount along with interest. Therefore in view of the said observation the OPs are liable to pay interest on the principal/paid amount in the form of compensation.

The OPs have further argued that refund will be made with simple interest @ applicable to the savings bank account in a Nationalized Bank without any other claim for damages or compensation whatsoever. In this context we may refer to the judgment of the Hon’ble NCDRC passed in the case of National Insurance Company Limited vs. M/s. S.N.J. Trade Link Private Limited, reported in 2018 (3) CPR 140 (NC), wherein it is hold that when interest is being provided, no separate compensation can be given. The said ruling is very much applicable in the case in hand.

Going by the foregoing discussion hence it is ordered that as the Complainant has successfully proved his case by adducing cogent document, hence the complaint is allowed on contest with cost. The OPs are directed to refund the amount of Rs.3,70, 445/- to the Complainant either jointly or severally along with interest @10% on the said amount from 08.03.2011 (last date of payment as per the annexure-6 of the petition of complaint) till realization of the said amount within 45 days from the date of passing of this judgment, in default the interest component will be @12% instead of 10% for the default period. The OP is further directed to pay litigation cost of Rs.5,000/- to the Complainant within 45 days from the date of passing this judgment, in default the Complainant will be at liberty to put the entire decree in execution as per provision of law.                                     

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

Member                                             Member                                   President

Dictated & Corrected by