West Bengal

StateCommission

CC/60/2018

Rajib Saha - Complainant(s)

Versus

Fort Projects Pvt. Ltd. - Opp.Party(s)

Mr. Prabir Basu, Ms. Sritoma Mondal

30 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION
WEST BENGAL
11A, Mirza Ghalib Street, Kolkata - 700087
 
Complaint Case No. CC/60/2018
( Date of Filing : 31 Jan 2018 )
 
1. Rajib Saha
Presently at Peet Pearl Apartment, Flat no. B-8, 4th Floor, 919, Madurdaha, Kolkata - 700 107.
...........Complainant(s)
Versus
1. Fort Projects Pvt. Ltd.
Corporate office at Fort Burlow, 59C, Chowringhee Road, Level -IV, Kolkata - 700 020.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT
 HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER
 HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER
 
PRESENT:Mr. Prabir Basu, Ms. Sritoma Mondal, Advocate for the Complainant 1
 Mrs. Runi Chakraborty, Advocate for the Opp. Party 1
Dated : 30 May 2023
Final Order / Judgement

SAMIKSHA  BHATTACHARYA,  MEMBER 

The complainant  has  filed  the instant complaint under Section 17 (1)(a)(i) of the CP Act against OP alleging deficiency in service.

The brief  facts of the case,  are that  the complainant entered into an agreement  with the OP on 18.03.2015 for purchasing a flat measuring about 1508 sq. ft. of super built up area with one covered  car parking space on the  ground floor as per agreement. The complainant paid Rs.11,58,253/- i.e.,  20% of total consideration  amount. It was  agreed by and  between the parties  that the possession of the completed project would be handed over by  31.03.2017 but upon  inspection of the project  site  it has transferred that   any  piling work of the project has been completed  but no further progress  of the work at the site is  seen. The complainant   asked the OP for final date of delivery of flat  which the opposite party  failed to provide  till date and finding no other  way the complainant  asked for  refund of money  so paid to the OP with interest and compensation. Under    compelling circumstances,  the complainant has been   obliged to initiate the present proceeding against the OP  for realization  of the amount so paid including interest and compensation  to the tune of Rs.9,70,000/- only for failure of the OP to  keep  the assured words  otherwise, the  very purpose  of filing present complaint  would be frustrated and the complainant will suffer irreparable  loss and injury. The complainant has further  submitted that  he has not  filed in any  suit or proceeding on the self same ground  and there is no legal impediment in  granting the  relief as prayed for. Hence, the application praying for direction upon OP to  refund the  paid amount to the tune of Rs.11,58,253/-  along with bank interest, compensation for harassment and litigation expenses  amounting to Rs.23,28,263/- and the cost of present  proceeding tentatively assessed to Rs.2,00,000/-.

The sole OP appeared before this Commission and filed their written version. In their written version,  OP  has stated that the complaint is not maintainable  in its present form  and/or in  law. The complainant is not a ‘consumer’ within the meaning of  CP Act, 1986 and as such, the instant complaint is not maintainable before the Ld. Commission. The complaint is squarely  covered by the arbitration  agreement between the parties. Clause XIV of the agreement dated 18.03.2015 provides the arbitration agreement between the parties and the complainant is  bound by the same and cannot now seek  adjudication of any dispute before  this Ld. Commission. The complainant  is bad for non-joinder of necessary parties and/or misjoinder of parties. The complaint is  hopelessly  barred by limitation and has been filed  beyond the  statutory period of limitation  provided under CP Act, 1986. The perceived cause  of action for the instant complaint  arose  first time on 18.03.2015 and the instant petition has been filed in 2018, after inordinate delay of almost three years as such, the complaint is liable  to be rejected being  hopelessly barred by limitation.  Time was the essence of the contract, the parties  by their conduct did not  adhere to such terms and had given to go-by  thereto.  Even before  expiry  of the time period on 31.03.2017, the complainant  had cancelled the agreement through email dated 17.05.2016 and sought refund of total amount  paid. The complainant by further letter dated 16.08.2016 again requested for cancellation  of agreement  and refund of total deposited amount. The complainant has not made any payment after the  initial deposit of Rs.11,58,253/-. Therefore, the complainant is only  entitled to refund of the aforesaid amount as he had  already cancelled the agreement on 17.05.2016 in terms of the  Clause No. 4.5 of 10.1 of the agreement dated 18.03.2015. In view of the cancellation of the agreement dated 18.03.2015 the complainant cannot demand that the OP perform and fulfils all its obligations under the said agreement and there may be no question of any laches or negligence  on the part of the OP. The complainant has approached this Commission with  unclean hands and  he is guilty of suppression  of  material facts and making incorrect  statements on oath. The project namely, Fort  Rejoice was delayed  for various reasons and factors which were beyond the control of the OP. There was delay in  approval of concept plans  and sanctions including necessary terms and approvals  from the concerned authorities. This apart there was serious  labour disturbance occasioned by political interferences. The unavoidable circumstances resulting   from reasons beyond the  control  which resulted in the delay in the project completion. The OP is in no way responsible for such delay and such delay was beyond the control of the OP.  All these  resulted in delays are  within the knowledge of all  concerned including the complainant. In fact, the complainant waived  all  its perceived rights  under the agreement arising out of the perceived default of the OP by agreeing to make payment of instalments  upon completion of foundation work  at the project. Since the complainant  cancelled the agreement in question and sought for refund, the complainant cannot claim to be a   consumer and moreover he is only  seeking for refund of the amount paid by  him before this Commission. He is not  praying for  delivery of such flat upon full payment, therefore,  the complaint is  liable to be dismissed in limine.

All the allegations  mentioned in the  petition of complaint are denied by the OP. Therefore, the OP has  stated that the complainant is not entitled to  bank interest or compensation or litigation expenses or  future interest or compensation  alleged at all. Therefore, the OP has prayed for dismissal of the complaint with exemplary cost upon the complainant.

Both  sides filed their respective evidence on affidavit, questionnaires and replies.

On the date of hearing, Ld. Counsel  for the complainant has stated that  it is true that the complainant has  paid only 20% of the total  price of the flat  value along with  the car parking space.  It  is  true  that the complainant has paid Rs.11,58,253/-  which is 20% of the total price of the flat value including car parking space.  It was agreed by and between the parties that the possession of the apartment  would be handed over by 31.03.2017 but only piling work has been completed then which was revealed on inspection. The  OP has not taken any initiative  for making construction of the project as assured and ultimately being frustrated the complainant cancelled the agreement and asked for refund  together  with  bank interest and compensation.

In support of   his argument, Ld. Advocate for the complainant has cited the judgment passed by the Hon’ble National Commission reported in 2023 1 CPR 35 NC where  it has been categorically held –

“Neither  possession was offered  nor  refund was made  by the builder. As such there was  continuing cause of action and the two year limitation period prescribed in Section 24A (1)   was not attracted … “the  very fact that the builder was indefinitely retaining the complainant’s deposited  amount was in itself sufficient cause to justifiably condone the delay under Section 24A(2), anything otherwise would have been tantamount to a travesty of justice, leaving the complainant helpless and remediless – therefore, the complaint is not barred by limitation and with the request to decide the complaint on merit as per  law.”

In course of  argument, Ld.  Counsel for the OP has stated that the complainant by a letter dated 16.08.2015 (page 37 of the complaint) admitted that he had stopped the  payment of second instalment as he was of the opinion  that the construction is not progressing.  As on date the project is  ongoing  and the complainant has not appointed  any engineer commissioner to establish that the project is not going on. On 17.05.2016 the complainant  cancelled the agreement and demanded  refund of money  which he paid. The project started as per schedule, however, purchasers  as like complainant failed to make timely payment of the consideration the project got delayed. Since the complainant  cancelled the agreement by letter dated 17.05.2016  the the consumer  relation  ceased to exist  for which the complainant cannot come before this Commission. The complainant has filed present complaint only for refund of certain amount which according to  him  is refundable as he had cancelled the agreement dated 18.03.2015. Since the only prayer  is refund of certain amount with interest the present  legal proceeding is actually a money suit which ought to be decided by a competent  Civil Court and not by this Commission.  The complainant  in writing has agreed to refer any dispute to arbitration and as the money demand  is not  a consumer dispute, the complainant ought to have initiated arbitration proceeding as per Clause 14.1 of the agreement dated 18.03.2015. In support of his argument, the Ld. Counsel for the OP has  cited the judgment passed by the Hon’ble High Court at Calcutta in Rita Das vs. Jayashree Ghosh where the Hon’ble Court has held –

“Thus in view of the specific embargo created under the Special Act, the  Consumer Forum or the State Commission was not competent to pass  the order  and/or entertain the said completion:”

It  is  therefore, submitted by OP that the present complaint be dismissed  with heavy cost.

Upon  hearing the parties and on perusal of  entire materials on record,  it is admitted fact that the complainant and OP entered into an agreement on 18.03.2015 for purchasing of a  flat  measuring 1503 sq. ft. super built up area for a consideration of  Rs.56,17,680/-. It is also admitted fact that  the complainant paid Rs.11,58,253/-.  Two  money receipts, issued by OP,  have been annexed with the petition of complaint towards payment of Rs.2.06,180/- dated 22.10.2014 and Rs.9,52,073/- dated 14.02.2014.  

As per agreement, the schedule date of delivery of possession was 31.03.2017. The developer  shall over  be entitled to an extension of six months from such completion  date  in which case the extended date shall then be taken  as the completion date.  

(Clause No. 5.4 of agreement dated 18.03.2015). It is also admitted  fact that the complainant requested for cancellation of the agreement and prayed  for refund of deposited amount of Rs.11,58,253/- vide letter dated 17.05.2016 which is annexed as page No. 6 with the petition of complaint. When the Ld. Counsel for OP was asked  what is the position of the project at present he could not answer in   positive that the project has been completed. The  argument on behalf of the Ld. Counsel for the OP that since the complainant has failed to pay second   instalment  onwards  then the project got delayed, but the OP has failed to produce  any single scrap of paper which suggests that due to the reason for non-payment on the  part of the complainant, the project got delayed.

The another  contention of the OP that they have not  completed the project  in time  due to delay in approval of Concept  plan and to take  necessary  permissions and approvals  from the concerned  authorities. The OP has also submitted in its written version, that there was  serious labour   disturbances  occasioned by the political interferences. But the OP has filed  to produce any  such document towards their   contentions.
Moreover, what  measures  they have taken to take the necessary  permission  and so on, no cogent document   is come with the written version. Moreover,  due to labour disturbances,  they have not filed any complaint to the concerned authority. Therefore, the argument on behalf of the OP   on this point cannot be  accepted  in the  eye of law.

The  OP has  argued that there  is Clause No. 14.1 that  all disputes and differences between the parties  regarding the construction construction   or  interpretation  of   any of the terms   and conditions contained in the agreement for sale or  touching these presents  or  determination of  any liability  shall be referred  to the arbitration in accordance with the provisions of the  Arbitration and Conciliation Act, 1996 or any other  modifications or   enactment thereto  for the time being in force. There are plethora of    judgments that if there is existence  of any  arbitration clause, it would be  the choice of the  complainant where  he will  approach. In support of this, we can rely upon the judgments passed by the Hon’ble Supreme Court in –

  • Emaar MGF Land  Ltd.  vs. Aftab Singh  (2019)
  • Booz Allen & Hamilton Inc. vs. SBI Home Finance Ltd. reported in (2011) 5 SCC 532
  • National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy (2012)  2  SCC 506
  • Sky pac  Curriers vs. Tata Chemicals Ltd. reported in (2009) 5 SCC 294.

Moreover,  as per section 3 of  Consumer Protection Act, 1986, the Consumer Protection Act makes it  clear that the remedy available in the  Act  is in addition to  and not in derogation of the provision of any other law for the time being in force.

The another  point for consideration is that whether the  complainant can approach this Commission after  requesting for cancellation of the  agreement and can pay for refund of the deposited amount.  Now the question is the complainant has paid the  booking amount as per agreement. Thereafter,  the OP  has failed to  perform their job. At the time   of the delivery of the possession of  the flat and car parking space, the complainant has noticed that  on piling  work  has been completed.  Finding no other alternative,  the complainant has  prayed for cancellation of the agreement and praying for refund of the deposited amount. Therefore, in case of the failure on the part of the OP, the complainant has no other option but to opt for cancellation of  the agreement. There is no dispute that the complainant has paid Rs.11,58,253/-. The OP has admitted that  the OP has received  that amount of  money for  so many years for performing their jobs on their part but ultimately OP failed. Now the Ld. Advocate  for the OP has argued that the petition of complaint has been filed  for refund not for  direction  upon the OP to handover the flat and car parking space. Astonishingly, at the time of argument also not submittedthat the projectis completed  in all aspects and the company is ready to deliver the case flat and  car parking space to the complainant. It is admitted fact that   neither the  possession  was offered  nor refund was made  by the builder. Therefore, the OP is liable to refund the amount to the complainant since the amount was retained by the builder  for so many years. Since  neither the  possession was given nor the refund was made by the  builder there isalso  continuing cause of action  and the  two yeas  limitation period  prescribed in Section 24A  is not attracted.

Now the question is whether the complainant is entitled to compensation.  The complainant  entered into  the agreement for sale in  the year 2015, now it is 2023.  Almost eight years have been elapsed but the  OP has failed to show the whereabouts of the project. So it is  palpably clear that the OP has failed to complete  the project.   

The argument on behalf  of the OP that they had not  completed the project since the complainant has not paid the amount after paying the booking amount. If this is so, then the OP had to send letter that due to non-payment on the part of the complainant/purchaser, the agreement would be terminated. But the complainant  fails to pay the amount  as per schedule then what prevented the OP to complete  the project  in scheduled time.  In the instant case not only the delay occurred, till date the OP has failed to show that the project has been completed with a delay.

As per Clause No.5.5 of the Agreement for Sale dated 18.03.2015, the completion date i.e. 31.03.2017 shall be stand extended by such period for which the developer/seller become unable to fulfill their obligations, to complete the said building within the stipulated time, for reasons of Force Majeure and/or beyond their control.  In the instant case, no such document towards Force Majeure clause has been filed by the OP.

The Clause No. 5.10 of the Agreement for Sale is reproduced as under:

In case of delay in handing over the possession within the stipulated period or such extended period as provided in these presents, the developer/seller shall be liable to pay such damages as provided in the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act 1993 (W.B. Act XX of 1993) subject to such delay not being caused by prevention of Force Majeure or such circumstances which would be beyond the control of the developer/seller.

In the instant case, no such document towards Force Majeure clause has been filed by the OP.

As per above discussion, it is  admitted   portion  that  builder  is indefinitely retaining the complainant’s deposited  amount without showing any cogent reason. A purchaser with a dream for a home cannot wait for an inordinate delay. Finding no other alternative, complainant has   opted for cancellation   of the agreement and since the   amount  was not refunded  by the OP the complainant is entitled with compensation also since there is gross negligence  and deficiency in service on the part of the OP.  

We  are of the view that the complainant is entitled  to get interest for his deposited amount in the form of compensation.

Accordingly,  the complaint case succeeds.

Hence,

   it is

                                 O R D E R E D

The complaint case be and the same is allowed on contest against the OP with cost.

OP is directed to refund  Rs.11,58,253/- (Rupees Eleven lakh fifty-eight thousand two hundred fifty-three)  only along with  interest @ 8% p.a. from the date of payment till its  realization in the form of compensation within 60 (sixty) days from the date of passing this order.

The OP  is also directed to pay litigation cost of Rs.20,000/-(Rupees twenty thousand) to the complainant within the aforementioned stipulated  period.

If the OP fails to comply  with the order within  the stipulated period the complainant is at liberty to put the decree into execution.

The  complaint case is, thus, disposed of accordingly.

 
 
[HON'BLE MR. JUSTICE MANOJIT MANDAL]
PRESIDENT
 
 
[HON'BLE MRS. SAMIKSHA BHATTACHARYA]
MEMBER
 
 
[HON'BLE MR. SHYAMAL KUMAR GHOSH]
MEMBER
 

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