PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of an intending purchaser against the Developer/builder on the allegation of deficiency in services on the part of developer in respect of a flat and car parking space in a dispute of housing construction.
Succinctly put, complainant’s case is that on the basis of an advertisement made by OP Company he has submitted an application on 26.02.2007 in order to purchase of a flat to be constructed by the OP Company in their new project ‘Cascades’ in ‘Uniworld City’ at New Town, Kolkata. The complainant along with the application has paid Rs.6,26,749/- by a cheque bearing No. 211337 dated 26.02.2017. On 12.03.2007 the OP Company allotted an apartment measuring about 2128 sq. ft. more or less together with one covered car parking space with the proportionate undivided share of land at ‘Cascades’ in, Uniworld City, New Town, Kolkata at a total consideration of Rs. 69,52,067/-. The complainant has stated that he and his wife has already paid Rs. 65,88,684/- to the OP adhering strictly to the terms and conditions of the agreement. The Opposite Party was under obligation to deliver the possession of the Apartment within 30.06.2010 but they fail to keep their promise. The complainant time and again requested the OP Company to deliver the possession of the apartment but it went in vain. Ultimately on 23.09.2015 the complainant gave an alternative proposal to the OP Company to allot any similar size apartment in other suitable towers on the same location but the OP Company expressed their inability to swap the Apartment. Hence, the complainant has come up in this commission with the instant complaint with prayer for following reliefs, viz- (a) to direct the OP to pay compensation for a sum of Rs. 10,00,000/-; (b) to direct the OP to deliver possession of the flat in question as per terms of the agreement dated 20.03.2007; (c)to direct the OP to pay Rs. 15,00,000/- for delay in delivery of possession; (d) an order directing the Opposite Party to pay a sum of Rs. 1,00,000/- to the complaint towards litigation cost.
The Opposite Party by filing written version has admitted the existence of the agreement between the parties in respect of property in question and also admitted the factum of payment of Rs. 65,88,684/- by the complainants by way of 13 instalments including interest of Rs. 26,614/-. The OP has stated that they have made best endeavour to deliver the possession of the apartment to the complainant within 30th June, 2010 but due to Force Majeure circumstances they could not provide the flat within time. The OP Company has stated that the delay in construction of ‘Cascades’ is attributed to delay is in obtaining statutory infrastructural provisions pertaining to road, electricity, water, sewerage, sanction etc beyond the control of them. However, the construction of Uniworld City in steadily progressing and they are committed to their customers to hand over the possession subject to the terms of the agreement and in this respect they are ready to make payment compensation @ Rs. 5/- per sq.ft per month as per terms of the agreement. Therefore, the complaint should be dismissed.
Both the parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their advisories. At the time of final hearing both the parties have also filed brief notes of argument in support of their respective cases.
On the basis of pleadings of the parties and the evidence on record, it is transpired that on the basis of an advertisement made by OP Company, complainant made a formal application on 26.02.2007 to OP Company for hiring their services for construction of a residential flat/Apartment with a covered car parking space in the complex ‘cascades’ in Uniworld City to be developed by OP Company on the plot of land situated in Main Arterial Road, Action Area-III, New Town, Kolkata-700156 along with one a/c payee cheque amounting to Rs. 6,26,749/- cheque bearing No. 211337 dated 26.02.2007 drawn on CITI Bank, Kolkata in favour of the OP Company being part consideration of the services hired for construction of the residential Apartment. On 12.03.2007 OP Company had issued one allotment letter along with payment schedule on receipt of a sum of Rs. 6,26,749/-.
Evidently, on 20.03.2007 a buyer’s agreement was executed between the parties and the OP Company had agreed to construct and transfer an Apartment having super built up area of 2128 sq. ft being Apartment No. 1901 on 18th floor at Tower No. 09 along with one covered car parking space on the ground floor in the complex ‘Cascade’ in Uniworld City to be developed by OP Company on the plot of land situated in Main Arterial Road, Action Area –III, New Town, Kolkata- 700156 at a total consideration of Rs. 69,52,067/-. It remains undisputed that complainant has already paid Rs. 65,88,684/- as part consideration amount towards the said total consideration amount.
As per terms of the agreement, the OP Company was under obligation to hand over the subject flat to the complainant within 30.06.2010. Admittedly, even after expiry of more than long 9 years after the committed date of possession, the OP Company has failed to deliver the possession. In this regard, the OP Company has also failed to advance any Force Majeure circumstances which prevented them to comply with the terms and condition of the agreement.
The materials on record speaks that despite payment of bulk consideration amount by the complainant, the OP Company has failed to deliver the possession of the Apartment to the complainant within the time frame. The complainant being in urgent need of an apartment by an email dated 02.04.2015 ventilated his grievances to the OP for inordinate delay in delivering the possession of the Apartment and requested the OP to provide an alternative flat of any similar size in other suitable towers in the same location. However, the OP Company has also failed to provide the same and in reply to the email dated 23.09.2015 the OP Company has intimated that there is no vacant apartment in the same location and accordingly they could not swap the apartment.
In this backdrop, the Ld. Advocate for the complainant has submitted that the complainant cannot wait for an indefinite period in order to get possession of the flat and as such he has made a prayer for refund of the amount paid by the complainant along with compensation. In support of his submission, Ld. Advocate for the complainant has placed reliance to decision of this commission dated 07.02.2019 in CC/470/2016 (Mr. Nirrbhey Lall and another vs. Bengal Unitech Universal infrastructure Pvt. Ltd.) and claimed refund of the amount of Rs. 65,88,684 along with compensation in the form of simple interest @ 10% p.a. from the date of each payment till realisation and litigation cost.
Ld. Advocate for the OP, on the other hand, has contended that for the purpose of delay in the delivering the possession the OP Company will pay compensation @ Rs. 5/- per sq. ft per month as per terms of agreement and the same will be adjusted at the time of Final Notice of delivery of possession and accordingly in terms of the said agreement the complainant is not entitled to refund any amount.
For appreciation of the dispute, the Clause 5 .c.ii of the Agreement is reproduces below:-
“ That the Developer would pay to the Purchaser compensation @ Rs.5/- per sq. ft. per month for the period of delay in offering the delivery of the said Apartment beyond the period indicated in Clause 5.a.(i), save and except for reasons beyond the reasonable control of the Developer and the Force Majeure events specified in his Agreement. These charges would be adjusted at the time of final notice of possession. The Developer will not be under any other liability to pay damages or any other compensation to the purchaser.”
On reading of clause 5.c.ii, it appears that this clause is applicable only in cases where the Opposite Party fails to deliver possession of the apartment within the stipulated time and the compensation is to be paid every month for the delay. The above Clause applies only in respect of delay in delivery of possession.
It remains undisputed that OP has failed to deliver the possession of the Apartment even after long 9 years from the date of committed date of possession. In our view, OP/ Developer not being in a position to offer possession of the apartment as an allottee cannot be expected that a buyer will wait for an indefinite period for having a roof over his head at the mercy of the developer. In other words, a buyer cannot wait for possession of an apartment for an indefinite period. In that perspective, any order for direction upon the OP to deliver possession or to execute the deed of convenience on receipt of balance consideration amount of Rs. 3,63,383/- will serve no purpose, more particularly when the developer himself expressed their inability to provide even an alternative flat in the same location. Therefore, the justice of the case would be sub-served by passing an order for refund of money which already been paid by the complainant to the OP Company for hiring their services. Accordingly, the complainant is entitled to refund of Rs. 65,88,684/-. For the purpose of adjudication on the point of compensation, in our case, it would be relevant to refer Clause 5.e which provides alternative property/compensation. The said clause reproduces below-
“That if for any reason the Developer is not in a position to offer the Apartment herein applied for allotment, the Developer shall offer the purchaser an alternative property or refund the amount in full with simple interest @ 10% per annum without any further liability to pay any damages or compensation.”
On perusal of the above, it is quite clear that if for any reason, the OP is not in a position to offer possession of the apartment as an alternative relief, the OP shall refund the amount of Rs. 65,88,604/- along with compensation in the form of simple interest @ 10% p.a. without any further liability. Therefore, in view of the above Clause, the OP Company is liable to pay simple interest @ 10% on the deposited amount as compensation for the default in paying respect to the terms of agreement between the parties. As the situation compelled the complainant to lodge the complaint, the complainant is also entitled to litigation cost which we quantify at Rs.20,00,000/-.
In view of the above, the complaint is allowed on contest with the following directions:
(i) The Opposite Party shall refund the entire amount of Rs. 65,88,684/- received from the complainant along with the compensation in the form of simple interest @ 10% p.a. from the date of each payment till the date on which the entire amount along with compensation in terms of this order is paid;
(ii) The Opposite Party shall pay Rs.20,000/- as costs of litigation to the complainant;
(iii) The payment in terms of this order shall be made within 60 days from date;
