West Bengal

South 24 Parganas

CC/295/2015

Kankan Jana, S/O Panchanan Jana. - Complainant(s)

Versus

Bengal Shrachi Housing Development Ltd. - Opp.Party(s)

28 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _295_ OF ___2015_

 

DATE OF FILING : 22.6.2015.                    DATE OF PASSING JUDGEMENT: 28.02.2017

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Subrata Sarker

                                                                             

COMPLAINANT        :    Kankan Jana,s/o Panchanan Jana of Vill & P.O Budhakhali, P.S. Kakdwip, Dist. South 24-Parganas, Pin-743347.

 

-VERSUS  -

 

O.P/O.Ps                            :     Bengal Shrachi Housing Development Ltd. Shrachi Tower, 686, PS-Anandapur, E.M Bypass-R.B Connector Junction, Kolkata-107.

                                          

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

The short case of the complainant is that complainant booked one flat being MIG Flat on 10.2.2012 of 725 sq.ft Unit no.4D, of type 2BHK , Apartment in Paban-XI, Dakshinatya, at Mouza Dudhnai, J.L. no.107 , L.R Khatian no. 554, P.S Baruipur, Dist. South 24-Parganas . It has further stated that 95% payment have been made on 24.3.2014 and the rest 5% have to pay at the time of delivery of flat which ahs over 33 months on 11.11.2014 as per Tripartite Agreement. Total amount paid is Rs.11,49,500/- excluding service tax and interest charged on him for delayed payment. Complainant has claimed that he is in financial and mental stress for their deficiency of service . It has claimed although 95% payment have been completed , developer issued a letter on 14.5.2014 by mentioning several failure reasons in time of completion of the project which are as follows : i) Force majeure condition, (ii) Unforeseen circumstances, (iii) shortage of manpower, (iv) shortage of raw materials, (v) loss of valuable time due to heavy rains and excessive water logging(vi) Huge increase of prices (vii) Local constraints resulting not only in slowing down of construction work but also in causing delay in transportation of materials and lastly shortage of skilled and semi-skilled labour. It has claimed that the flat of the complainant is under Phase-I  development has no progress after issuing execution delay letter but in advertisement it is stated that Phase-1 nearing completion, Phase-2 booking started, which is unfair trade practice. It has claimed that complainant was expecting some suggestion from Bengal Shrachi Housing Development to recover his investment towards this flat as because flat delivery time limits (33months) are exceeded by six months more. The letter delivered on 18.5.2015 but within 30 days he did not receive any letter from the O.P regarding the said letter. The complainant also claimed that inspite of sending e-mail on 28.5.2015 to know the completion time of his allotted flat and attached letter but did not received any e-mail against the same for which he prayed that time limits has exceeded by six months more and prayed for refund of the paid money of Rs.11,49,500/- , the Service Tax and 15% interest charge for delayed payment are excluded. Apart from that compensation to the tune of Rs.2,97, 936.69 for bank loan payment with 4% interest on paid amount as on date 315.2015 . Compensation for mental harassment and to spoil the valuable time to the tune of Rs.1,52,300.00. It has claimed that Bengal Shrachi Housing Development Ltd. (O.P)  is not willing to disobey their social responsibility when developing a flat  for the medium income group family and lower income group family where the time limits is the vital parameters related with the financial condition and the future plan of the customer like the complainant.

The O.P is contesting the case by filing written version and has claimed that the complaint case is liable to be dismissed since complainant did not come in clean hand and presented some distorted and incorrect version of the facts before the Hon’ble Forum and waned to misguide and mislead the Hon’ble Forum. It is the claim of the O.P that complainant is bond by the jurisdiction set forth in the general terms and conditions executed between himself and the O.P which is a  matter of record that as per clause no.39 the general terms and conditions mentioned that in the event of any dispute arising out of or relating to the terms herein contained the same shall be referred for arbitration to the then Chairman of the company or such person nominated by him. The arbitration should be governed by the Arbitration and Conciliation Act 1998 or any statutory amendment and/or any statutory amendments and/or modifications thereof in force at the time of the referral. The Arbitration will be held in Kolkata and its language shall be in English. The Arbitrator may dispense with such procedures that are permissible with the consent of the parties which consent will be deemed to have been given by the Allottee upon acceptance ofg the allotment. The award will be final and binding upon the Allottee and the company. Accordingly Ld. Forum is devoid of jurisdiction to entertain the complaint as the complainant is bound by the terms and conditions which are supplied to him along with the general terms and conditions. Apart from that, it has admitted that complainant booked 2BHK  MIG flat measuring 725 sa.ft in Paban-XI Dakshinatya. It has claimed that O.P has no intentional laches in delivering the said property to the complainant and the delay was caused on account of some events mentioned in para IV of the written version which are beyond the control of the O.P. The O.P also claimed that due to heavy shower work cannot be undertaken and progress was very slow and annual report of the Indian Metrological Department is annexed herewith. The O.P has claimed that if those incidents which are beyond the control of the O.P would have happened the O.P would have finished the works by now and also claimed that when the complaint was lodged complainant was very much informed by the O.P the reason of such delay. The O.P also mentioned clause no.31.1 that if the company fails to deliver possession of the property ( due to the reasons mentioned above) within the period, the allottee shall be entitled by way of compensation to receive per month on and from the schedule possession date till the date of actual possession simple interest on the amount paid to the company at savings rae of nationalized bank. So, the allottee will be eligible to be compensated only if the said  allottee has not committed any default till then. The O.P has claimed that complainant ha paid installment nos. 4^th and 6^th after passing due date i.e after 26 days and 18 days. So, complainant is not eligible to get any compensation as per clause 31.1 and prays for dismissal of the complaint case.

Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.P or not.

                                                            Decision with reasons

Admittedly complainant has booked a flat and paid Rs.11,49,500/- to the O.P for 725 sq.ft MIG flat no.4D and type 2 BHK under the O.P and admittedly 33months period which is the date of delivery of the flat already over. Now point is to be considered whether such delay is justified or not.

It is the case of the O.P that delay was caused due to some unforeseen circumstances mentioned in the written version and also submits some documentary evidence to that effect  i.e. the annual report of the Metrological Department, Government of India and other documents. But fact remains that flat has not yet been completed. If we consider that in the year 2014 there was heavy rainfall and if we consider that there was a dispute regarding sanction of the infrastructural drawing for the electrical connection with the WBSEDCL but that was also in the year 2014 and this case was filed by the complainant in the middle part of 2015. So, why the O.P was not complied with the terms and conditions of the agreement thereafter. No satisfactory answer comes out in the written version. So, the O.P being a big businessman development house, it is not expected from such business house that “Complainant being a member of Middle Income Group lost his faith upon the O.P , particularly when our Welfare State is looking for the roof of specially MIG and LIG Group of persons. Thus the act of the O.P also hits the noble thought and desire of our present Welfare Government also. It should not be out of record that complainant is an Assistant Professor. So, most educated persons failed to celebrate his first year birthday ceremony of his only son in order to collect the application money by expending Rs.52,058/- with a terms that roof will get and a good shelter will be there when the name and style of the O.P is none but “Bengal Shrachi Housing Development Ltd.” having a big House namely Shrachi Towers focusing on the road of E.M Bypass under P.S. Anandapur.  So, any common people made think that he will not be cheated by applying for a flat to fulfill their dream under such type of renowned developer namely Bengal Shrachi Housing Development Ltd. ,that is why complainant being an educated person booked one flat sacrificing the first year birthday ceremony of his only son being an Assistant Professor and we are aware that the persons who are in the teaching line trends the mind of the students and if this type of persons looses their faith upon this type of well-known O.P then where the common people will get shelter, that is why the complainant compelled to mention that “Ethic ally it is prayed that Bengal Shrachi Housing Development Ltd. not willing to disobey their social responsibility when developing a flat for the4 medium Income Group Family and Lower Income Group Family where the time limits is the vital parameters related with the financial condition and the future plan of the customer like the complainant”. We also appreciate and wanted to say that O.P being a big name of Bengal Shrachi Development Ltd. should look the interest of the MIG and LIG Group of families knowing fully well their income condition as well as deposit in savings bank. This type of consumer has booked the flat only for his own use and occupation not for business purpose and they have no such extra income by which they can manage the bank interest years together. So, if the O.P had or have good gesture over this type of common people at large, the crying of the common people can be easily meted out like this complainant who have already paid his good money of Rs.11,49,500/- which not a joke for a person belongs to MIG Group. So, O.P should think for a moment regarding the interest of this type of persons but we find that O.P did not pay any held to it ,that is why O.P acted deficiency of service and unfair trade practice since the O.P failed to produce any documentary evidence that their work was not progressing in the year 2015 also. Apart from that, mere insertion of clause i.e Arbitration and Conciliation clause as mentioned in para 5 of the written statement cannot snatch away the jurisdiction of this Bench until and unless award is obtained.  In this connection we must have to rely the judgment o0f DLF Ltd. Vs. Mridule Estate Pvt. Ltd. wherein the Hon’ble National Commission have observed that Consumer Forum under the C.P Act are not bound to refer the dispute raised in the complaint on an application filed under section 8 of the Arbitration and Conciliation Act, 1996,seeking reference of the dispute to an Arbitral Tribunal in terms of the valid Arbitration Clause in the agreement entered into between the parties. Thus mere insertion of Arbitration Clause cannot snatch section 3 of the C.P Act from this bench.

Apart form that in view of the reported judgment reported in 2006 (3) CPR NC page 339 along with the S.C case no.FA/870/2012 dated 1.11.2013 it has observed by the Hon’ble National Commission as well as Hon’ble State Commission West Bengal that a complaint cannot be decided by the Consumer Forum after the award is already passed.

Here, in the instant case no arbitration award has been achieved by the O.P. So, this case is not maintainable before this Bench.

With that observation, it is

                                                                        Ordered

That the application under section 12 of the C.P Act, 1986 is allowed on contest against the O.P.

The O.P is hereby directed to  hand over the flat with habitable condition and to execute and register the same in favour of the complainant within 45 days from the date of this order, alternatively to refund the money deposited by the complainant Rs.11,49,500/- along with interest @8% p.a after the stipulated date of 45 days is over till its realization.

Apart from that O.P is hereby directed to pay compensation to the tune of Rs.1,50,000/- and legal expenses Rs.5000/- to the complainant within 45 days from the date of this order.

The prayer for Rs.2,97,939.59p is refused as the O.P has claimed that installment no.4 and 6 was not paid in time. Thus clause no.31.1 is not applicable.

The complainant is at liberty to execute the order after expiry of the stipulated date of 45 days if the flat was not delivered or payment with interest was not made along with cost and compensation.

Let a plain copy of this order be handed over to the complainant  and the O.Ps  free of cost  .

                                                           

Member                                                                                                           President

Dictated and corrected by me

                               

                        President

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

                                               

                        Ordered

That the application under section 12 of the C.P Act, 1986 is allowed on contest against the O.P.

The O.P is hereby directed to  hand over the flat with habitable condition and to execute and register the same in favour of the complainant within 45 days from the date of this order, alternatively to refund the money deposited by the complainant Rs.11,49,500/- along with interest @8% p.a after the stipulated date of 45 days is over till its realization.

Apart from that O.P is hereby directed to pay compensation to the tune of Rs.1,50,000/- and legal expenses Rs.5000/- to the complainant within 45 days from the date of this order.

The prayer for Rs.2,97,939.59p is refused as the O.P has claimed that installment no.14 and 6 was not paid in time. Thus clause no.13.1 is not applicable.

The complainant is at liberty to execute the order after expiry of the stipulated date of 45 days if the flat was not delivered or payment with interest was not made along with cost and compensation.

Let a plain copy of this order be handed over to the complainant  and the O.Ps  free of cost  .

                                                           

Member                                                                                                           President