SAMIKSHA BHATTACHARYA, MEMBER
The instant complaint case has been filed by the complainants under Section 17(1)(a)(i) of the CP Act, 1986 against the OPs alleging deficiency in service.
The facts of the case, in a nutshell, are that the complainant booked an apartment at “Sohini II (UMIG) Block-3” having its project site at “Neel Diganta” at Barasat, 24 Parganas, (North) which is being developed by the OP No. 1. The OP No. 1 is the real estate company and acts as a joint sector company with West Bengal Housing Board and they together perform planning, development and construction of numerous large and small projects of housing, multi-storied core residential and commercial complexes and urban infrastructure in Kolkata and also in other district towns of West Bengal. The OP No. 2 is the acting director of OP No. 1 and OP No. 3 is the Chairman of OP No. 1. The OP No. 1 through their advertisement depicted a plan of establishing three types of apartments dividing in 8 blocks over a 25 acres of land consisting of three types of projects, namely, “Bagesree”, consisting of 480 flats for the higher income group, “Sohini”, having 532 flats, consisting of 2 bed rooms for middle income group and “Hindol”, consisting of 64 flats having one bed room for lower income group. In the advertisement, the brochure contained of a site plan of the entire project, floor plan of the 1st phase and services that would be provided to the intending purchasers. The said brochure also guaranteed excellent nearby facilities such as schools, colleges, hospitals and good communication system for transport. The OP No. 1 also promised to provide various facilities and amenities in the said project such as elevator in every block, Bank and ATM facilities, gym, swimming pool and many more. The OP No. 1 also depicted that the company is a renowned company in West Bengal Apartment history since 1986. The said OP NO. 1 also depicted in their brochure about their well-known towers in different projects.
On being confided and motivated by the success of the said company, as portrayed by OP No. 1 and having deep regard in the said company for being a joint sector project with the West Bengal Housing Board, the complainants made an application for booking of an apartment at the said project being application No. 1208 on 5th August, 2013. The complainants paid Rs.51,545/- along with service tax for purchasing a flat by way of a demand draft dated 01.08.2013 in respect of the said project. Upon payment of said application money, the Respondent No. 1 provided a Booking ID being No. GPCXCH3301 for future references with the OP No. 1 in respect of the said flat and also issued money receipts being No. 142814 and 142815 both dated 27.08.2013 in favour of the complainants. Subsequently, on the same date, by a Letter of Allotment, the apartment being No. ND/S-II/3/7A (Type-A) at Sohini (UMIG) Block No. 3, 7th floor having an area of 820 sq. ft. (approx.) (practice valued at 14,99,780/- along with a covered car parking space valued at Rs.2,50,000/- was provisionally allotted in favour of complainants on the basis of their application. The OP No. 1 has also provided a customer ID being No. NDS II/286 for all future correspondence and payment. The said allotment letter dated 27.08.2013 was in the form of an agreement, which contained the general terms and conditions for the allotment of the apartment along with the structure of future payments and said allotment letter was duly executed by the complainants and the authorized representative of the OP No. 1. It was stated that the company would give the possession of the flat to the allottees within 48 months from the date of first allotment. On 13.02.2014, the complainants paid an amount of Rs.3,74,945/- for allotment of apartment and an amount of Rs.1,25,000/- towards allotment for covered car parking space along with the service tax of Rs.15,499/- totalling to Rs.5,15,394/- through a cheque being No. 000946 dated 11.02.2014 and accordingly, the OP No. 1 issued two money receipts to that effect. On 21.08.014, the complainants paid first instalment of Rs.2,24,967/- along with service tax of Rs.6,951/- through cheque. OP No. 1 issued the two money receipts to that effect. On 22.06.2016, i.e., 14 months prior to the scheduled time for handing over the possession the OPs sent a letter to the complainants stating that the said project has been halted due to unforeseen circumstances and reasons beyond their control. As a result, the project would restart within 90 days from the date thereof. Pursuant to the delay, the complainants considering the brand value and reputation of OP No. 1, waited for the said project to be completed and to get the delivery of possession of the said flat as promised by the OPs as per their allotment letter. But the complainants did not receive any further intimation thereafter from the OPs. Upon being anxious the complainants visited the said project and found that the project has been stalled since long and only the foundation has been laid and no other work has been done by the OPs. Accordingly, the complainants visited the office of the OPs but their request for delivery of the flat or refund of money became futile. On 29.06.2017, being frustrated at the progress of the said project, the complainant No. 1 made a representation to the OP No. 2 and expressed their anxiety for getting refund of total amount of Rs.7,98,857 with interest as per Clause 16 of the allotment letter. Receiving the said representation by the complainants the OPs have chosen to remain silent and no further communication has been made to the complainants and the OPs have not refunded the deposited money of the complainants. Even after a span of four years from the date of application even after the OPs have never managed to complete the foundation of the said project and have failed to state any satisfactory reason for the complainant to further believe the OPs. The acts of the OPs suffers from deficiency in service. The intention of the OPs in not returning the amount as paid by the complainants, portrays their activities towards deceitful exploitation of the consumers and deceptive trade practice which is not at all warranted and sustainable in law. The OP No. 1 has failed to construct the project as well as failed to hand over the possession of the flat to the complainants. In spite of that, the OPs have not refunded the deposited amount to the complainants.
Hence, the application praying for direction upon the OPs to return Rs.7,98,857/- as paid to OP No. 1 for booking of the said flat along with simple interest at the rate applicable to the savings bank account in a nationalised bank from the date of last payment i.e., 21.08.2014 till 27.08.2017 in terms of said allotment letter dated 27.08.2013 and 18% interest on and from 28th August, 2017 till the date of realization. The complainants have also paid for compensation of Rs.1,00,000/- for harassment and mental agony suffered by the complainants and litigation cost.
Upon receiving the notice, the OPs appeared before this Commission and filed their written version. In their written version, OPs denied all material allegations inter alia stated that the OP No. 1 being a Real Estate Company acts as a joint sector company with West Bengal Housing Board. The instant case has been filed by the complainants for wrongful gain suppressing the material facts with an intention to get some illegal benefit from the OPs. The complainants are aware of force majeure clause of the said agreement. None of the parties shall be regarded as in breach of any of the terms and conditions of the said agreement if any of the parties is prevented from performing or discharging its obligations as per terms of the Agreement because of the circumstances beyond its control such as delay for local syndicate problem with the help of some plot holders who intends to extract money from the developer filed litigation and all the project land is litigated property and project is pending for this. Due to aforesaid dispute, the electrical substation was not installed. Temporary or permanent interpretation in the supply of material and utilities serving project in connection with the work and for disturbance created by local problem and non-availability of workmen as per requirement are the circumstances for which they could not construct the project in time. It was in the knowledge of the complainants that the project was delayed due to the aforementioned reasons. There is no prima facie case and the balance of convenience and inconvenience is absolutely against the interest of the complainants and the same should be summarily dismissed in limine by the imposition of exemplary cost upon the complainants. There is no intentional laches on the part of OPs. The OPs were all along very much diligent in providing their part of service to the complainants in high extend of satisfaction. The instant case is baseless, harassing, motivated, concocted, false, fabricated, oppressive, frivolous, scandalous, afterthought, vexatious, imaginary, speculative with ulterior motive and wrongful gain, prolix, unnecessary and as a result, the complainants are not entitled to get any relief and compensation as prayed for.
Hence, the complaint case is not at all relates to any dispute as per provisions as enumerated in Section 2(1)(d)(i) of CP Act, 1986 as amended up to and the instant case is not maintainable in the eye of law. Therefore, the OPs have prayed for dismissal with the case with exemplary cost.
The Ld. Advocate for the complainants has submitted before this Commission that the complainants are the “Consumers” of housing construction service rendered by OPs in exchange of value consideration of Rs.7,98,857/- paid by the complainants to the OPs in instalments, as per agreement schedule for hiring such services. The complainants are thus the consumers within the meaning of Section 2(1)(d)(ii) of CP Act, 1986 as amended. The OP No. 1 is a Real Estate Company as a joint sector company with West Bengal Housing Board. The complainants made an application for booking of an apartment of a project namely, “Sohini”, being Application No. 1208 on 5th August, 2013. Accordingly, the complainants paid 51,545/- which is annexed as Annexure B running page 27 with the petition of complaint. Accordingly, one booking ID being No. GPCXH3301 was provided and the two money receipts towards Rs.50,000/- as application money and towards Rs.1,545/- towards service tax were issued by the OPs which is annexed as running pages 28 and 29 with the petition of complaint. OP allotted a provisional allotment letter on 27.08.2013. The photocopy of said allotment letter has been annexed as Annexure C running page 30 with the petition of complaint. The complainants paid first instalment of Rs.3,74,945/- towards booking of the flat and an amount of Rs.1,25,000/- towards booking of the car parking space. The complainants have also paid Rs.15,499/- towards service tax. Thereafter, the complainants paid Rs.2,24,967/- on 21.08.2014 it is first instalment along with the service tax of Rs.6,951/- on the same date. Photocopy of all the money receipts have been annexed with the petition of complaint as Annexure E at Page No. 45 to 48. The OPs has assured that the possession of the flat would be given within 48 months from the date of the first allotment subject to payment by the allottes of all the dues in respect of the allotted flat including stamp duty and registration charges as applicable under law. On 22.06.2016 i.e., 14 months prior to the schedule time for handing over the possession the OPs sent a letter to the complainants stating that the said project has been halted due to unforeseen circumstances and reasons beyond their control and the project would restart within 90 days from the date thereof but the complainants noticed that no progress in the said project was started even after expiry of said 90 days. Then the complainant No. 1 made the representation of 29.06.2016 requesting to refund the amount of Rs.7,98,857/-. As per Clause No. 16 of allotment letter it is stated that if the OP fails to deliver the flat(s) to the Allottee(s) within the stipulated time and if on this account the allottee wishes to withdraw his/her application then the OP will refund the amount with simple interest as per savings bank account of a nationalised bank. It is admitted that OPs have failed to complete the project and as such, the complainants are entitled to get relief.
The Ld. Advocate for the OPs has submitted that it is true that the project has not been completed till date due to some unavoidable circumstances. As per Clause, they are willing to refund the amount to the complainants but as per clause i.e., with the interest at the rate of savings bank account of nationalised bank. The complainants are aware of force majeure clause of the general terms and conditions that the OPs are prevented from performing or discharging its obligation which are beyond their control inter alia stated as delay for local syndicate problem with the help of some plot-holders, who intends to extract money from the developer, filed litigation and/or all the project land is litigated property and project is pending for this and for that reason, the electric substation has not been installed. Moreover, there are temporary or permanent interruption in the supply of material or utilities, disturbance created by local problem and non-availability of work as per requirement. However, they are willing to refund the amount to the complainants along with the interest as per savings bank account of the nationalized bank.
Upon hearing the parties and on perusal of entire materials on record, it is admitted position that the complainants booked a flat consisting of 2 bed rooms measuring 820 sq. ft. (approx) at project ‘Sohini’. It is also admitted fact that the complainants also booked a car parking space. There is no dispute that the complainants paid Rs.50,000/- as application money along with service tax of Rs.1,545/-, on 27.08.2013. On the same date i.e., on 27.08.2013 the OPs issued allotment letter for allotment of apartment at “Sohini” in the UMIG Block-3, Neel Diganta, Barasat, 24 Parganas (North), West Bengal. Thereafter, the complainants paid Rs.4,99,945/- in total towards allotment of the apartment and allotment of the car parking space on 13.02.2014 along with service tax of Rs.15,449/-.Thereafter, the complainants paid first instalment Rs.2,24,967/- on 21.08.2014 along with service tax of Rs.6,951/-. We have gone through the terms and conditions of “Sohini” UMIG Block-3 which is Forming part of letter dated 27.08.2013 issued by OPs. As per Clause No. 2 of the general terms and conditions, it has been stated that “The company shall endeavour to give possession of the Flat to the Allottee(s) within 48 (forty-eight) months from the date of Allotment subject to payment by the Allottee(s) of all dues in respect of the allotted flat including stamp duty and registration charges as applicable under law.”
The complainants paid the application money amounting to Rs.51.545 (including service tax) on 27.08.2013 and on the same date, allotment letter was issued by the OPs. Thereafter, the complainants paid the instalment on 21.08.2014 i.e., more or less one year has been passed till date of issuance of allotment letter. On 22nd June, 2016 i.e., that is near about after 3 years of issuance of allotment letter, OP informed the complainants that due to certain reasons/circumstances which are beyond their control, the construction has been halted and they were planning to restart the construction activities at the site within 90 days from the date thereof. However, after elapsing 90 days from the date of issuance of said letter, i.e., 22.06.2016 no construction was started till date. It is admitted fact that the construction has not been started till date and the OP is not in a position to deliver the apartment and the car parking space in question. The Ld. Advocate for the OPs has submitted in course of argument, that due to unforeseen circumstances, they could not construct the project and they have stated some reasons in their written version to that effect. But we are astonishing that no such document comes forward to corroborate the argument on behalf of the OPs which prevented them to construct the project in time. Moreover, the reasons as stated in the written version as well as in the Brief Notes of Argument, no communication has been done by the OPs which proves that they were eager to start the project. They have stated the local syndicate problem and disturbance created by local problem. But the OPs have failed to show any document which proves that they were eager to start the building and took necessary measures to overcome the problems. No FIR or GD has been filed by the OP being a renowned company which was planning to construct the projects with the West Bengal Housing Board. As per law, the expression “Force Majeure” - or vis major (Latin) – meaning “superior force”, also known as cas fortuity (French) or casus fortuitous (Latin) “chance occurrence, unavoidable accident” is a common clause in contracts that essentially prevents both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as war, strike, riot, crime, or an event described by the legal term Act of God (hurricane, flood, earthquake, volcanic eruption, etc.), prevents one or both parties from fulfilling their obligations under the contract. In practice, more force majeure clauses do not excuse as party’s non-performance entirely, but only suspend it for the duration of the force majeure. The problems stated by the OPs might absolutely be controlled by the OPs and that were their responsibilities. The OPs cannot cite any reason which can be termed as “force majeure” which prevented them to perform their obligation.
The complainants have made a questionnaire being Question No. 17 “did you admit refund the said amount to the complainants here?” (yes or no), the OP’s answer in affirmative.
Therefore, there is no denial that the complainants have paid Rs.7,98,857/- in total and OPs are agreed to refund the same. Now the question is whether the complainants are entitled to get relief along with interest as per savings bank interest rate of the nationalised bank which is agreed by the OPs. Clause 16 of the general terms and conditions is reproduced as under:
“If Bengal Shelter fails to deliver possession of the flats to the Allottee(s) within the stipulated time (subject to force majeure as stated herein below) and if on this account the allottee wishes to withdraw his/her application, in that event the amount deposited by him/her will be refunded with simple interest at the rate applicable to the savings Bank account in a nationalised bank, without any other claim for damages or compensation whatsoever.”
If the OPs refund the amount after the event of failure on their part then this Clause No. 16 will be applicable. The complainants have booked the flat in the year 2013, and till date of filing of the complaint case i.e., on 17.11.2017, the OPs did not refund a single farthing. If the OPs refund the sum on their own, the complainants ought not to have filed the instant complaint by taking the recourse of law.
In this connection, we can rely upon the judgment passed by the Hon’ble National Commission reported in 2016 CPJ 328 NC where Hon’ble National Commission held that “As far as the alottees in tower E and F are concerned, they have already sought refund as an alternative relief, along with compensation under several heads. Therefore, we have no hesitation in holding that in the facts and circumstances of the case the allottees in both the complaints are entitled to refund of the money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them. They are also entitled to appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the opposite party to deliver the possession of the flat booked by them. In this regard, this is to be kept in mind that a person booked a residential flat for the purpose of having a roof over his head, and in the hope that of completion of the construction within the time promised by the builder, he will be able to live in a house of his own. Therefore, he is bound to feel disappointed and frustrated when the builder does not deliver upon its promise for years together”. In another judgment, the Hon’ble National Commission held that “Since the opposite party has failed to offer possession of the flat agreed to be sold to the complainants by the date stipulated in the Buyers Agreement in this regard and 5/6 years have already expired from the said committed date for delivery of possession the complainants cannot be compelled to wait any more for the builder to deliver and they are entitled to seek refund of money paid by them along with the appropriate compensation”. [Reported in 2016 (3) CPR 279 (NC)].
In the instant case, no service was provided by the OPs towards complainants. So scrap of paper has been annexed by the OPs whether any amount has been deposited by them as ‘service tax’. Therefore, the OPs are bound to refund total amount paid by the complainants.
In view of above discussion, the complainants are entitled to refund along with interest in the form of compensation for the mental agony and harassment suffered by them. If the OPs refund the amount in time then the complainants might have taken the amount with the interest as per savings bank interest of nationalized bank but since the complainants were compelled to take legal recourse. The OPs are bound to pay the interest @ 9% p.a. from the date of each payment till its realization in the form of compensation to the complainants.
As a result, the complaint case succeeds.
Hence,
It is
O R D E R E D
The complaint case being No. CC/868/2017 is allowed on contest against the OPs.
The OPs are directed to refund Rs.7,98,857/- (Rupees seven lakh ninety-eight thousand eight hundred fifty-seven) only to the complainants along with simple interest @ 9% p.a. from the date of each payment till its realization in the form of compensation for causing harassment and mental agony within 60 (sixty) days from passing of this order.
The OPs are also directed to pay litigation cost of Rs.20,000/- (Rupees twenty thousand) only to the complainants within 60 (sixty) days hereof.
If the OPs fail to comply with the order within the stipulated period as aforesaid, the complainants are at liberty to put the decree into execution.
Let a plain copy of this order be supplied to the parties free of cost.
