SAMIKSHA BHATTACHARYA, MEMBER
The instant complaint has been filed under Section 17(1)(a)(i)of CP Act, 1986 by the complainant against the OPs alleging deficiencies in service.
Brief facts of the case are that the complainant, as an intending purchaser, has booked the MIG (upper) flat/residential accommodation developed by OPs on payment of Rs.50,000/- as earnest money. It was stipulated in the terms and conditions of the brochure that allotment shall be made on the basis of draw of lots through lottery. As a good luck the complainant’s name was appeared and was listed in the category of draw by lots, which has been successfully selected against Flat No.9B, Maze-I. After booking and consequent event of draw by lots and as the complainant was successfully listed as a buyer/intending purchaser, the complainant was waiting for indefinite period of time to own the desired flat. Since 2018 many years passed for the dilly-dallying tactic of the OPs and the OPs took various pretext to deliver and handover the flat to the complainant within certain time. After completion of all formalities, the OPs took lame excuses that for official paraphernalia the said project could not be developed and was not ready for handing over and delivery of the flat which caused impediment to get the flat. In order to dupe and deceive the purchaser, the OP No.1 was writing one after another letter to dissuade and to cajole the complainant taking various pleas for non-delivery of promised flat. The brochure issued by OP No.1 is one way traffic and there was no scope to the purchaser to express their view and opinion. The agreement should be a bilateral agreement. The agreement was signed on 15.02.2011 and the OP No.1 is dragging the issue without completing the infrastructure of its land and projects and has floated the invitation in the public. The agreement entered between the OP No.1 with the West Bengal Housing Board is another way of woodwind and dupe bona fide buyer. The series of letters and papers, are deceptive tactics adopted by the developer, have been endorsed to the complainant just to put a stumbling block so that the honest buyer cannot raise hue and cry for getting the flat. The price of the flat and garage was settled at Rs.17,75,000/- but all on a sudden the OPs were approaching the complainant on the ground of escalation of price which culminated to 90% of the previous price so charged.
The complainant has further stated that he cannot suffer or cannot be under the trap and labyrinth of escalation of the raised pricing which, if imposed, will be at the sweet will of the OPs without any fault of the complainant. The official paraphernalia has stated by the OP is the result of misdeeds and shortcomings of OP which cannot be fastened come to the petitioner. The complainant has further stated that he is entitled to get delivery of the flat at the price prevailed at the time when the agreement was signed. The OPs are responsible for delay caused which is due to the fault of the OPs. Therefore, the complainant cannot or should not be entangled and to be made party in the escalation of price. The joint venture project development was undertaken by the OPs in the year 2011. It was the duty of the developer to arrange for accommodation who have to cross the barrier of lottery. The complainant is running from pillar to post to get the flat with actual payment of the price of the flat for which so many requests have been made to the OPs to deliver the flat as enmarked for the purchaser being the complainant.
Hence, the application praying for direction upon OPs to deliver the flat as stated in the petition of complaint in terms of the agreement along with compensation of Rs.3,00,000/- for causing continuous harassment and Rs.3,00,000/- for causing mental agony and the escalated value of the flat and the litigation cost of Rs.50,000/-.
The OPs file written version to contest the case. In their written version, OPs denied all material allegations inter alia stated that the complainant, under any circumstances, does not come within the purview of the CP Act, 1986, and the dispute is entirely civil in nature. The complainant has not approached this Commission with clean hands and therefore, no equitable reliefs can be granted in his favour.
The transaction between the parties is commercial in nature, the complainant makes investment in the flat in question which is commercial and, therefore, the case is not tenable under the Act. The complainant has his permanent resident and therefore, the specific projects of Upper MIG flat is nothing but an investment which is totally commercial in nature. The complainant approached the OP No. 1 for allotment of 2BHK flat in Upper MIG Group at ‘Green Wood Nest’. On 15.02.2011 by signing an Application Form and agreeing to General Terms and Conditions and making booking amount of Rs.50,000/-.
Due for force majeure condition, the OP No. 1 sent the letters dated 03.07.2014 and 13.07.2015 with the same observation. On 17.06.2016 the OP No. 1 sent one letter for revision of rate in respect of LIG/MIG Unit, Green Wood Nest in terms of Notification No. 738-H1/1M-2/2007 (Pt) dated 17.08.2015 of Housing Department, Government of West Bengal along with enhanced new sale price of LIG/MIG flat as per notification and accordingly requested the complainant about his confirmation regarding revised rate or the OP No. 1 was ready to refund the deposited amount with interest @ 12% p.a. and revised rate is fixed by the Housing Department, Government of West Bengal after considering the fact that due to lapse of time, escalation in the land price, construction and development cost throughout the area it would not be possible for constructing and developing at the earlier rate. Revised rate is applicable to this project since the project was not yet commenced and no sanctioned plan approved by the competent authority as on date of notification and further no contract was executed by and between the parties except intimation of selection of name through the public lottery by the OPs. The complainants vide his letter dated 27.06.2016 gave his consent to such revision of rate as “accord my consent” hereby for accepting the revised rates” and further requested to intimate him the expected completion date of the project. The plan of the project in question was sanctioned by Rajarhat Panchayat Samity, Rajarhat Development Block, North 24 Parganas. Subsequent to such sanctioning of plan in the year 2017 the project was commenced and OPs for the first time issued an allotment letters to the eligible allottees selected from the lottery and executing the agreements with respective allottees. No allotment was ever made to any person or the complainant nor any agreement was executed prior to notification of Housing Department regarding revised rates of flats and sanction of the plan. The complainant already accepted the revised rate of the flat proposed to be allotted to him. The OP No. 1 issued a letter dated 23.11.2017 to the complainant and intimated about the provisional allotment of flat No. 9B on 9th floor admeasuring more or less 690 sq. ft. built up area/578 sq. ft. carpet area/904 sq. ft. super built up area situated at Tower Maze-1 at “Green Wood Nest” for a total price of Rs.33,04,712/- excluding Service Tax/GST (which includes Rs.31,64,000/- as basic price plus Rs.1,40,712/- as extra charges). The complainant duly accepted the allotment letter and its terms and conditions on 21.12.2017 by making payment in terms of such allotment letter. By accepting and signing the said allotment letter, the complainant has concluded said contract with the OPs which is valid, final, conclusive and binding upon the parties and still subsisting, therefore, the terms of valid contract cannot be modified unilaterally or arbitrarily by the complainant alone. Subsequently, on 21.12.2017 the representative of the complainant Mr. Deepak Khetawat through email vide sent a representation acknowledging the receipt of allotment letter without and sought some further time to pay part of the consideration money in terms of the allotment letter with raising any dispute on any other issues. After acceptance of such allotment, the complainant acted in terms of the allotment letter and made payment of Rs.6,54,141/- vide letter dated 10.01.2018 at his own will and consent which again proves his acceptance of the terms of the allotment letter. Therefore, at this stage, the complainant cannot claim the earlier intimation letter dated 27.02.2012. On 02.08.2018 the complainant raised disputes to extort money from the OPs and to harm the goodwill and reputation of the OPs. The complainant with some baseless allegation instituted the instant complaint against the OPs with the prayer for fixing the cost of the flat at a previously proposed rate i.e., Rs.17,75,000/- together with compensation of Rs.6,00,000/- and litigation cost of Rs.50,000/- and also the escalation value of the flat which allotted as Rs.35,00,000/-. After acceptance of the allotment letter and thereafter on making payment in terms of the allotment letter, the complainant cannot claim to accept the flat at previous rate. The complainant himself had accepted the escalated price of the flat and therefore, the notification No. 738-H1/1M-2/2007 (Pt) dated 17.08.2015 of Housing Department, Government of West Bengal cannot be challenged by the complainant. The OPs have further submitted that cost price of LIG and MIG flats has been enhanced by the Housing Department, Government of West Bengal upon considering all aspects of increase of all costs which is beyond the control of the OPs and it is also stated that enhancement/escalation of price of the flat cannot be adjudicated under the provisions of CP Act,1986. The OPs cannot be held responsible for the delay and, therefore, the complaint is not entitled to any compensation.
Hence, the OPs pray for dismissal of the complaint since the case is not maintainable and also pray for passing necessary order.
In course of argument, Ld. Counsel for the complainant has stated that pursuant to the advertisement of the OPs, the complainant being an intending purchaser applied for an upper MIG Apartment along with covered car parking space in “Green Wood Nest” Complex on 15.02.2011 along with appropriate application fees of Rs.50,000/-. As per lucky draw, complainant’s name was selected as allottee for the Flat No. 9B at Maze-1 nearly seven months after the lucky draw. The OP No. 1 vide letter dated 27.02.2012 intimating the complainant that due to unavoidable reasons they are unable to temporarily issue allotment Letters to all successful customer, although they were duly bound to issue the same within 30 days of lucky draw i.e., before 19.08.2011. The OP No. 1 recurrently misguided the complainant by issuing letters dated 21.08.2012, 03.07.2014 and 13.05.2015 stating that the project is getting delayed due to non-approval of sanctioned plan by the respective Panchayat Samity which was approved on 26.05.2017 and therefore, the construction began only in 2019 as per information available. Therefore, the Ld. Counsel for the complainant has argued that the very act of publication of advertisement inviting the applications from the public at large in the year 2011 by the OP No. 1, fully knowing that the sanctioned plan and other approvals are yet to be approved by the respective itself amounts to deficiency in service as laid down in Section 2 (1) (g) of CP Act, 1986 and unfair trade practice as laid down under Section 2(1) (r) of the CP Act, 1986.
The Ld. Counsel for the complainant has further argued that OP No. 1 first time vide letter dated 17.06.2016 intimated the complainant that as per notification being No. 738-H1/1M-2/2007 (Pt) dated 17.08.2015 issued by the Housing Department, Government of West Bengal the base price of the flat of the complainant would be increased from Rs.15,00,000/- to Rs.31,64,000/-. The sale price of the flat along with covered car parking space in question was specifically mentioned in point that “VI. Details of Sale Price” of the advertisement to be as Rs.17,75,000/- and (Rs.15,00,000/- as base price and Rs.2,75,000/- as car parking space) and no deviation from the same can be made after five years of advertisement in any manner whatsoever as no mention of price escalation was expressly intimated in the aforesaid advertisement. He has further argued that bare perusal of the contents of notification No. 738-H1/1M-2/2007 (Pt) dated 17.08.2015, it transpires that there is no whisper of applicability of the revised rates of the flats with retrospective effective from 2011. The sum of Rs.6,54,141/- was paid by the complainant to the OP No. 1 by cheque dated 20.12.2017 and that was paid on protest as so being coerced by the OP No. 1, therefore, such payment can in no way be termed as an acceptance to revised rate of price of the flat, as claimed by the OP No. 1 in their written version. Therefore, the Ld. Counsel for the complainant has submitted before us that the very act of unilateral escalation of the base price of the flat from Rs.15,00,000/- as quoted in 201 to Rs.31,64,000/- in 2016 by the OP No. 1, fully knowing that the sale price was already quoted in advertisement published public in 2011, amounts to deficiency in service as laid down under Section 2(1)(r) of the CP Act, 1986 and unfair trade practice as laid down under Section 2(1)(g) of CP Act, 1986.The OP No. 1 has clearly mentioned in point No. 32.1 of the advertisement that the construction of the building would be completed and peaceful possession would be handed over to the complainant within 33 months which is still not yet had been done even after passage of 11 years of booking of the flat. Therefore, the complainant has submitted that the inordinate delay of 11 years in completing the construction and handing over the peaceful possession of the booked flat by the OP No. 1 to the complainant amounts to deficiency in service and unfair trade practice. It is a trite law that clauses of contract dated 15.02.2011 are absolute and binding upon both the parties to a contract and may not be altered in any manner whatsoever later on. Complainant humbly submits that the OP No. 1 is duly bound to perform all the obligations with respect to clauses of contract dated 15.02.2011 towards the complainant and their act of inaction and/or non-performance of any of the obligations of the clauses of the contract dated 15.02.20121 makes the complainant eligible for an order of compensation for loss or damages cost to be made by breach of some contract dated 15.02.2011 as per Section 73 of Indian Contract Act, 1873. The Ld. Counsel for the complainant has lastly submitted that as the allegation inter alia the deficiency in service as rendered and adopting the unfair trade practice on the part of the OP No. 1 is prima facie proved to be true therefore, the relief is prayed for in the instant application may be granted in favour of the complainant otherwise the complainant will suffer irreparable loss and prejudice.
The Ld. Counsel for the OPs has submitted that the complaint is lacking due to non-joinder and misjoinder of necessary parties. The complainant did not implead the West Bengal Housing Board, as a necessary party to the complaint proceedings, who is the owner of the project land and duly mutated its name in the record of the competent authority, without whose presence no final conclusion can be drawn in the matter. The OP No. 1 is only the developer of the project land by virtue of a development agreement executed with the owner, West Bengal Housing Board on 03.09.2009. The Ld. Counsel for the OPs has further submitted that OPs No. 2, 3 & 4 are not at all necessary parties to the instant case. It is well settled principle of law that the Directors of any company is not involved in the daily activity of sales and further it is not the actual case of the complainant that he has personally interacted with the OPs No. 2, 3 & 4 during any point of time. Therefore, the names of OPs No. 2, 3 & 4 be deleted from the cause title as not maintainable. Suppressing all material facts and/or concealing the truth and making a total departure from the truth and distorting the fact the complainant has projected the instant complaint with the sole objective of harassing and hardship to the OP and to delay in payment of installments as per contract executed on 23.11.2017. The said complaint does not come within the purview of the CP Act, 1986, the remedy, if any, lies before the competent Civil Court as the dispute is entirely civil in nature which cannot be adjudicated in summary trial. The complaint is barred by provision of Arbitration and Conciliation Act, 1996. The complaint case is an afterthought and with the purpose to delay the payment of installments and to gain illegally and there is no cause of action for filing the case. The transaction for purchasing of the flat was wholly commercial in nature. The purchase of the flat is nothing but an investment for the complainant. The complainant in his reply admitted that he is permanent resident of 4-F, Block VI, 74, Narkeldanga Main Road, P.S. Phoolbagan, Kolkata 700054. The Ld. Counsel for the OP has further submitted that when the complainant was asked that who is the owner of his permanent address and what is the relationship with the owner of the flat mentioned in the cause title and how many members are there, then the complainant answered that his permanent address is 74 Narkeldanga Main Road Block-VI, Flat 4-F, Kolkata 700054 and he did not declare that how many family members are residing there rather he replied that he is not bound to declare who is the owner of the flat where he is permanently residing. The pricing of the flat cannot be adjudicated by this Commission which has been fixed in terms of the contract executed by and between the parties. The complainant has failed to prove his case by adducing evidence and statements made in Evidence of Affidavit of the complainant is a total departure to the complaint petition.
The Ld. Counsel for the OP has further submitted that the complainant approached the OPs for allotment of the flat in question on 15.02.2011 by making booking amount of Rs.50,000/- and executed an application with General Terms and Conditions. Due to various force majeure conditions, which include, delay in obtaining sanctioned plan from the competent authority, injunction order passed in civil suit initiated between the legal heirs of the some erstwhile owners of the project land, the development works at the project got interrupted. On 21.08.2012, 03,07,2014 and 13,07,2015, the OP No. 1 approached all the persons who were successful in the lottery either to wait for completion of the project which got interrupted due to force majeure condition or to take refund of all money along with interest @ 12% p.a. or to accept alternate allotment in its nearby Baruipur project. The complainant in writing intimated that he wants to wait till the hurdles are overcome by the OP No. 1 and does not want refund of advance amount with interest by his letter dated 26.02.2013 and 27.06.2016. Although it was agreed between the parties that no interest would be paid in case of the project got delayed due to force majeure conditions, still the OP No. 1 as a good gesture offered the complainant to take refund of the advance amount with twice. On 17.08.2015, the Housing Department, Government of West Bengal by its Notification No. 738-H1/1M-2/2007 (Pt) dated 17.08.2015 enhanced sale price of LIG/MIG flat of its all housing projects of different Joint Venture Company/Assistant Sector Company of West Bengal Housing Board which includes ‘Green Wood Nest” project where the complainant’s said flat is situated. The revised rate is fixed by the Housing Department, Government of West Bengal and it is applicable since the project was not commenced before such notification and no sanction plan was approved by the competent authority and further no contract was executed by and between the parties except the intimation of selection of name through the public lottery.
The Ld. Counsel for the OPs has cited the judgment passed by the National Commission in Ajay Kumar Vs. Agra Development Authority and anr. [2021 (4) CPR 472 (NC)]
Upon hearing the parties and on perusal of the material on record , it is admitted fact that the complainant made an application being application No. 3550 as an intending purchaser before the OP No. 1 on 15.02.2011 pursuant to their advertisement to purchase an Upper MIG Apartment along with covered car parking space in the project “Green Wood Nest” located at Mouza-Ghuni, Jyoti Basu Nagar, Rajarhat along with application money Rs.50,000/-. It is also admitted fact that the complainant was selected as “Allottee” for the 2BHK flat being No. 9B, Max 1 through lottery draw on 20.07.2011. By their letter dated 27.02.2012 the OP No. 1 informed the complainant that due to unavoidable circumstances the allotment letters could not be issued to all successful customers of the lottery. It is the fact that OP No. 1 also issued a letter dated 21.08.2012 informing the complainant that though the company have approached the HIDCO on 13.01.2010 and the Panchayat on 14.07.2010 for plan sanction by paying requisite development fees but both the authorities failed to approve the sanction plan till that date and assured for cooperation. Therefore, the argument on behalf of the complainant that before taking any initiative for getting the sanction plan the allotment was given is not true. Many other clearances which are a prerequisite for sanction of building plan like Airport Authority, Fire and Microwave clearances amongst others have already been obtained by them. This reason for not getting of sanction plan, though all endeavour were taken by the OP No. 1, is nothing but force majeure clause. In this letter, the OP No. 1 also informed the complainant that as per GTC of Application Form, the company has committed that subject to, among them, force majeure conditions, the project shall be completed and possession shall be handed over within 33 months from the date they receive the countersigned copies of the allotment letters or the date of the sanction plans, whichever is later. In such situation, the OP No. 1 also decided to provide all their esteem customers with an opportunity to seek refund of the monies till then paid by them along with interests to be calculated @ 12% p.a. within 60 days from the date of receipt of the letter sent by the customer(s). Again, by their letter dated 03.07.2014. The OP No. 1 informed that sanction plan was yet to receive by them from the above two authorities. In the meantime, a writ petition was filed being WP No. 10799(W) of 2013 before the Hon’ble Justice Biswanath Samadder of the Hon’ble High Court at Calcutta by Sri Tapan Kumar Mondal, one of the purported legal heirs of the land. The matter was disposed of by the Hon’ble Court being not a matter of Writ Court. An appeal was filed by said Sri Tapan Kumar Mandal being No. OA No. 1183 of 2013 and Stay Application No. 375 of 2014 before the Hon’ble Land Reforms & Tenancy Tribunal. On the date of hearing of Stay Application OP No. 1 appeared through their Ld. Advocate on 26.06.2014 and next date was fixed on 12.09.2014 for hearing. For this delay the OP No. 1 offered alternative accommodation at their upcoming project at Baruipur or to take refund of deposited amount with interest @ 12% p.a. or to wait till disposal of legal and technical hurdles. Thereafter, OP No. 1 sent their letter dated 13.07.2015 explaining the reasons of their inability for handing over houses to its customers with the proposals to the purchasers as mentioned in their earlier letter dated 03.07.2014. By their letter dated 17.06.2016 the OP No. 1 informed the complainant about the Notification No. 738-H1/1M-2/2007 (Pt) dated 17.08.2015 of Housing Department, Government of West Bengal and for the notification the price of the Complainant’s flat was enhanced. In this letter also the OP No. 1 offered refund of deposited amount with interest @ 12% p.a. in case the complainant would decline to accept the changed price or to inform the company within three weeks. Only after ten days i.e., on 27.06.2016 the complainant accepted the revised rate. Therefore, though the complainant informed that he was shocked for this decision after five years (approx) but once he has accepted the revised rate, he cannot decline from his acceptance at enhanced rate since it is barred by law of estoppel. Even, the complainant paid Rs.6,54,141/- on 10.01.2018, which means the complainant has accepted the revised rate for the flat in question. The delay in getting sanctioning plan is certainly beyond the control of OP No. 1. Moreover, the Clause No. 32.2(f) of GTC describes the “Force Majeure Event” which includes “ Any failure by a competent authority to grant or renew any licence, permit or clearance within reasonable time (other than for cause) after application having been duly made”. Therefore, we find no deficiency in service on the part of OPs for not performing their obligation in time. Moreover, OP No. 1 has floated the advertisement which specified the contentions of their joint collaboration with West Bengal Housing Board. Therefore, the OPs have to follow the notification issued by Government of West Bengal. The dispute, as alleged by the complainant, has arisen due to the notification being No. 738-H1/1M-2/2007 (Pt) dated 17.08.2015 issued by the Housing Board, Government of West Bengal and the revised rate was issued by them. It is within the knowledge of the complainant that the Green Wood Nest project was developed by OP No. 1 with joint collaboration of West Bengal Housing Board. Therefore, the Housing Board, Government of West Bengal should be made party to get clarification from them. However, we are of considered view that the case should not be suffered for non-joinder of West Bengal Housing Board a a party.
The argument on behalf of the complainant that as per Clause No. 20.8 of GTC of OP No. 1 has not issued the Allotment Letter to the Allottee within 30 days cannot be accepted since the OP No. 1 has explained the reason elaborately in their subsequent letters after issuance of Provisional Allotment Letter. Moreover, the above noted Notification by Housing Board, West Bengal is applicable here since except draw of lots and issuance of Provisional Allotment Letter, no contract was executed by and between the parties. It was specifically agreed by and between the parties that the OP company may modify the terms and conditions and the Allottee will not be entitled to raise any objection except demand of advance amount without interest. The plan of the project was approved by the competent authority on 26.05.2017 and therefore, the revised rate is applicable in the project in question. The construction actively got started once the approval of commencement work was received on and from 30.08.2017.
The argument on behalf of OPs that the complainant has purchased the flat for commercial purpose cannot be acceptable since the OPs have scrutinized the application form along with all documents and after fulfillment of all criteria the application of the complainant was accepted and considered for lucky draw. If the complainant would not fulfil the criteria for application, then obviously the application would be rejected by the OPs.
At the time of final hearing also Ld. Counsel for OPs has offered the complainant for refund of this deposited amount with interest @ 12% p.a., but the complainant was not agreed with refund offer. Therefore, we are of the opinion that complainant has to pay the amount as per Housing Board, government of West Bengal Notification No. 738-H1/1M-2/2007 (Pt) dated 17.08.2015 The complainant has already paid Rs.50,000/- on 15.02.2011 and Rs.6,54,141/- on 10.01.2018, both through cheque vide Cheque No. 000011 dated 20.12.2017 drawn on Kotak Kotak Mahindra Bank, Park Street, Kolkata and Cheque No. 000222 dated 15.02.2011 drawn on Kotak Mahindra Bank, CIT Road, Kolkata. Therefore, the complainant has to get the flat by paying balance consideration for the flat in question. The other OPs being Directors of OP No. 1/Company cannot escape their liabilities for performing their job on behalf of the company. Therefore, all OPs are bound to deliver the flat and execute and register the same in favour of complainant.
The OP has filed statement of accounts dated 26th July, 2023 wherefrom it reveals that the base price of Upper Maze is Rs.31,64,000/- and the total charge is Rs.34,26,693/- which include Maintenance Security Deposit Interest, Free Security Deposit, Sewage Treatment Plant Charge, Electricity Service Charges, D.G. charges for 500 watt., Legal fees for Upper Maze along with SGST – CGST.
The complainant has already paid Rs.7,04,141/- towards of case property which has been received by the OPs. From the statement of accounts, it also appears that amount of interest waived and interest received is zero and the outstanding interest has been calculated only on the base price and CGST –SGST. Other charges show zero. Therefore, the balance amount payable by the complainant is Rs.27,26,638/-.
Since, the delay caused by OP is due to unavoidable circumstances as described earlier and the OP No. 1 has always informed the reason for delay and offered either to accept alternative accommodation or refund with suitable interest we are not inclined to pass any order towards compensation.
In view of above discussion, the complainant is entitled to relief towards execution and registration of the case property upon payment of balance consideration.
Accordingly, the complaint case succeeds in part.
Hence,
It is
ORDERED
That the Complaint being No. CC/524/2018 is allowed on contest but without cost.
The OPs are hereby directed to deliver the possession of the flat in question and execute and register the deed of conveyance of the same in favour of the complainant within 45 (forty-five) days hereof upon receiving the balance consideration amount Rs.27,26,638/- from the complainant.
The cost of registration shall be borne by the complainant.
There is no order as to compensation & costs.
The Complaint Case is disposed of, accordingly.
