FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The case of the complainants, in brief, is that complainants booked a two bedroom flat at “Eco Homes” measuring 553 along with open car parking space in Block No. H being Unit No. H-I-G-8 on theGround floor of Tower 1  by paying Rs.3,53,935/- out of total consideration of Rs. 16,37,800/- in different instalments vide cheque Nos. 025219 dated 01/12/2015 for Rs.24,125/-, 025220 dated 15/12/2015 for Rs.55,096/-, 025221 dated 15/01/2016 for Rs.55,096/-, 025223 dated 15/02/2016 for Rs.55,096/-, 025222 dated 15/03/2016 for Rs. 55.096/-, 025224 dated 15/04/2016 for Rs. 54,713/-, 025225 dated 15/05/2016 for Rs. 54,713/- drawn on Axis Bank to the OP. Thereafter the complainant paid an amount of Rs.1,97,405/- towards the instalments on 26/12/2016 at the request of the OP. Thus the complainant paid Rs.5,51,340/- to the OP. When the complainant visited the project area, it was noticed that no work was started. Being shocked the complainant asked the OP through a letter dated 21/02/2018 about the fate of the project and a probable time for getting handover of the said flat but the OP kept mum till date. Thereafter the complainants sent another legal notice dated 06/07/2018 to the OP stating either hand over the said flat and car parking space or refund the deposited amount. In spite of receiving the same the OP did not move. Till date the complainant neither got theflat nor got the refund of deposited money. Finding no other alternative complainant has filed the instant consumer complaint for getting reliefs.

OP contested the case by filing WV contending inter alia that the instant complaint is baseless, suppression of facts, false, barred by limitation and this Forum has no jurisdiction to hear the case. The case of the OP is that complainant neither waited for a considerable period of time, nor the complainant intended to pay the residual balance amount in installments as per schedule of the payment. Further OP submitted that it is known to everyone that due to slow down economy, infrastructure sector is going through a bad period which beyond the control of OP. The delay has been caused due to Force Majeure events and developer cannot be held responsible for such delay.  Moreover, the instant complaint is liable to be dismissed for non - joinder and / or miss–joinder of necessary party and also for that the respondents as implicated herein does not come under the purview of the Consumer Protection Act. Therefore, the OP has prayed for dismissal of the instant complaint.

We have gone thoroughly evidence adduced by the parties including documents on record and gave careful consideration to the arguments advanced by the Ld. Lawyers for the parties.

It is admitted fact that the complainants booked a residential flat being Unit No. H-1-G-8 on the Ground  floor in Block- H of Tower 1situated in the ECO Homes by paying Rs.3,53,935/-out  of total consideration amount of Rs.16,37,800/-to the OPvide chequeNos.

025219dated 01/12/2015for Rs.24,125/-

025220 dated 15/12/2015for Rs.55,096/-

025221 dated 15/01/2016for Rs.55,096/-

025223 dated 15/02/2016for Rs.55,096/-

025222 dated 15/03/2016 for Rs.55,096/-

025224 dated 15/04/2016 for Rs.54,713/-

025225 dated15/05/2016  for Rs.54,713/-

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Total                                   Rs.3,53,935/-

All are drawn on Axis Bankand alsovide cheque No.025233 dated 25/12/2016 for Rs.1,97,405/-drawn on Axis Bank to the OP. Documents furnished by the complainants supported the averments made out in the complaint petition.

It has been argued by the Ld. Advocate for the complainants that after such payments the complainant made several queries to the OP regarding the progress of the said project and handing over the possession of the booked unit and car parking space. But the OPs did not turn up. Photocopies of the Mailsent by the complainant showing that the complainant requested the OP through Legal Notices dated 21/02/2018 and 06 /07/2018 to refund the deposited amount along with interest as early as possible. It is noted that after receiving the said legal notices OP did not bother to reply the same by revealing any clear and transparent information about the booked flat. We think it is deficiency in service on the part of the OP. The primary responsibility of a builder is to construct the flat and deliver the possession of the said flat to the purchaser within stipulated period as per Agreementfor Sale for which the developer has received the money from the purchaser. If the builder does not deliver upon his contractual obligations and at the same time  show the reason for the delay in completion  of the said flat and offering its possession to the purchaser was on account on circumstances beyond his control, this would constitute deficiency on the part of the developer in rendering service to the consumer.

Moreover, photocopy of legal notices sent by the complainant to the OP show that complainant requested the OP to  refund the booking money i.e. Rs.5,51,340/-  stating the reason that  since the booking was made long back but the OP did not start the construction work of the said flat for which the prayer for refund. In our view, there is justification in such submission from the side of the complainants.

Controverting the allegation made by the complainants, Ld. Advocate for the OP argued that then either waited for a considerable period of time, nor the complainant intended to pay the residual balance amount in installments as per schedule of the pay the instant complaint is liable to be dismissed for non - joinder and / or miss–joinder of necessary party and also for that the respondents as implicated herein does not come under the purview of the Consumer Protection Act.We do not find any logic in such submission.

            We have travelled through the documents on record and found that complainants booked a flat in the said residential project of the OP against Rs.5,51,340/-.Therefore, receiving the same the OP comes under the purview of the Consumer Protection Act as Service Provider. On the other hand no such document has been found in the record wherefrom it can be established that OP has started the construction work of the subject flat after receiving booking money. Thus, this gesture of the OP can be termed as unfair trade practice.

Another submission has been placed before us from the side of the OP that throughout India including in West Bengal infrastructure sector is going through a very bad period and for such reason there has been a slowdown in overall development, which has adversely affected the progress of the project. As the economic slowdown beyond the control of OP, they herein cannot be held responsible and the delay has been caused due to Force Majeure event. As such, the owner and / or developer are not liable for such delay. In our considered view, such a plea cannot be construed as Force Majeure circumstances because referring a decision of Hon’ble Supreme Court reported in II (2000) CPJ 1(Ghaziabad Development Authority  Vs. Union of India) the Hon’ble National Commission in a decision reported in III (2007) CPJ 1( Kamal Sood Vs. DLF Universal Ltd.), has observed that it is unfair trade practice on the part of builder to collect money from the prospective buyers without obtaining the required permissions, such as zoning plan, layout plan etc. It is the duty of the developer to obtain the requisite permissions or sanctions, in the first instance and, therefore, recover the consideration money from the purchaser. Therefore, the alleged obstructions or hindrance cannot be considered as Force Majeure circumstances. So, OP was under obligation to execute an Agreement for Sale and handover the subject the subject flat in favour of the complainant within the stipulated period and failure on the part of OP to complete the project work and handover the subject flat within the stipulated period amounts to deficiency in services on the part of the OP.

Further Ld. Advocate for the OP submitted that, the complainants neglect to make timely payments. Photocopy of the Installment payment Schedule reveals thatRs.3,53,935/-  is payable on Agreement which is duly paid by the complainant to the OP and also paid Rs.1,97,405/- to the OP vide cheque No.025233 dated 25/12/2016drawn on Axis Bank. In this regard the OP failed to annex any single document showing that the complainant expressed her unwillingness to make remaining payments towards the payment schedule. Therefore the submission of the Ld. Advocate for the OP has no leg to stand. In view of the abovementioned facts we are opined that, the complainant cannot be made to wait indefinitely for possession of the flat, when there is absolutely no response from the OP.

In the result, the consumer complaint is allowed on contest against the OP with a direction to them to refund the principal amount i.e. Rs.5,51,340/- with simple interest@ 8%p.a. from the respective dates of payment is made, together with litigation cost of Rs.10,000/-. This amount to be paid by the OP to the Complainant within 45 days from the date of this order, failing which, the amount shall attract interest @12% p.a. for the same period. 

Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.