SAMIKSHA BHATTACHARYA, MEMBER
The instant complaint has been filed by the complainants under Section 17(1)(a)(i) of the CP Act, 1986 against the OP alleging the deficiency in service.
The facts of the case, in a nutshell, are that in the month of June, 2015, the complainants were approached by the representatives of OP to book a flat at a project proposed to be constructed at New Town, namely, Urban Mango comprising of 1.70 acre of land lying and situated at Action Area-II, New Town near Echo Space DLF-2 in the District North 24 Parganas. It was further informed to the complainants that if the complainants would book a flat with car parking space admeasuring 1615 sq. ft. super built up area at an early date, the OP would provide huge discount on the deal. Accordingly, the complainants, upon being repeatedly persuaded by the representation of OP, agreed to purchase one flat in the said project. The complainants were being allured booked an apartment being No. 904 on 9th and 10th floor (duplex) on Tower-II ‘Block A’ 2BHK (Premium) 1220 sq. ft. area with total cost of Rs.62,59,600/- which was proposed to be constructed. However, on or about April, 2016 the complainants requested the OP to change the duplex flat to a flat in the same level. Accordingly, the OP changed the booking and issued a new allotment letter on 20.04.2016 for booking of apartment being No. 504, Tower-II ‘Block B’, 5th floor 3BHK measuring 1300 sq. ft. for a total consideration of Rs.68,75,453/- including service tax, parking and club membership for the proposed construction. Accordingly, the complainants signed the application form and other documents as per advice of the OP. It was assured by the OP that the flat in question would be delivered by the end of 2018. The OP pressurized the complainants to make part payment towards advance booking amounting to Rs.12,08,215/- on and from 30.06.2015. Accordingly, complainants paid towards part payment of booking amount in the following manner:
(1) Rs.1,50,000/- vide cheque No. 000019 dated 29.06.2015 drawn on HDFC Bank Ltd., having receipt No. 443 dated 30.06.2015;
(2) Rs.1,00,000/- vide cheque, having No. 164810 dated 29.06.2015 drawn on State Bank of Travancore, vide receipt, having No. 444 dated 30.06.2015;
(3) Rs. 2,40,000/-, having cheque No. 164821 dated 09.10.2015 drawn on State Bank of Travancore, vide receipt No. 640 dated 08.10.2015;
(4) Rs.1,00,000/- in cash, vide receipt No. 641 dated 08.10.2015 and (5) Rs.3,00,000/- in cash, vide receipt No. 643 dated 09.10.2015.
The OP acknowledged the receipt of Rs.12,08,215 in their letter dated 20.04.2016 and Memorandum of Understanding (MOU) dated 16.04.2016.
The complainants have alleged that the OP issued a purported allotment letter dated 08.07.2015 and also another letter dated 20.04.2016 with regard to the aforesaid flat which was proposed to be constructed at the said project for a total consideration of Rs.68,75,453/- with a false promise only to deceive the complainants. It was represented by the OP that the possession would be handed over at the earliest but no project was started at the site in question. Consequently, the complainants were constrained to cancel the booking of the aforesaid flat vide their e-mail dated 05.12.2016. The OP accepted the cancellation proposal and promised to refund the booking amount through their e-mail dated 06.12.2016 and other emails thereafter. The OP handed over three post dated cheques being No. 288971 dated 27.01.2017, 288972 dated 28.02.2017 & 288973 dated 30.03.2017, all drawn on Yes Bank, Kankurgachi, amounting to Rs. 1,00,000/-, Rs.1,77,357/- and Rs.8,00,000/- respectively. The cheque being No. 288971 was presented before the bank but it was returned with remark “insufficient fund”. Ultimately no refund has been made till date. Then the complainants were compelled to issue legal notice on 11.01.2018. Since no step was taken by the OP, finding no other alternative, the complainants have approached before this Commission with prayer for direction upon OP to refund of Rs.12,08,215/- which was already paid by the complainants towards booking and/or part consideration along with compensation of Rs.10,00,000/- and litigation cost of Rs.25,000/-.
OP/company appeared before this Commission and filed their written version to contest the case. In their written version, the OP denied all material allegation, inter alia, stated that the complaint is bad in law for suppression of material facts and/or for making out a false case with ulterior motive and ill object. The said complaint is pre-conceived and instituted before time. The complainants themselves have stated in the complaint that they had changed their mind in the process of purchasing the flat and as such, the difficulty was faced by the OP. The purported Memorandum of Understanding relied upon by the complainants was executed on 16.04.2016 and the complainants cancelled the booking on 05.12.2016 i.e., much before the actual date of delivery of the flat, making it extremely clear that the complainants had no intention to purchase the flat and the intention of the complainants was to extort money on different ground by practising malice under the garb of the law of the land.
The complainants claimed refund without assigning any reason which amounts to personal difficulty and/or reason. The complainants themselves showed disinterest to purchase the flat on an anticipated future of not being handed over the flat. Since the actual claim of the complainants is below Rs.20,00,000/-, such complaint is not maintainable before this Commission as per provision of CP Act, 1986. Therefore, the instant complaint deserves to be dismissed with exemplary cost.
In course of argument, Ld. Counsel for the complainants has submitted that the OP is liable for intentional deficiency in service and wilful negligence for which the complainants have sustained lass and injuries. Since the complainants have suffered mental anxiety and stress as well as mental pain due to the act of the OP, the complainants are entitled to claim damages by way of compensation along with other prayers mentioned in the petition of complaint. In support of his argument, Ld. Advocate for the complainants has cited the judgment passed by Hon’ble National Commission in the case of Rockline Construction Company (FA No. 26 of 2013) versus Shekh Mohammad Jamil and ors and another judgment passed by Hon’ble National Commission in Chandan Gupta versus M/s. Supertech Limited (Consumer Case No. 2590 of 2017).
Ld. Counsel for the OP has stated before this Commission that as per the covenants mentioned in the Memorandum of Understanding dated 16.04.2016, the stipulated time to handover the possession of the flat was December 2018, with a grace period of six months i.e., June 2019. However, the complainants started raising such claim before time which is illegal and cannot be entertained at all. Seeking refund before the stipulated time and initiation of the instant case before the stipulated time has altogether jeopardised entire business module of the OP. The purported Memorandum of Understanding relied upon by the complainants, was executed on 16.04.2016. The complainants cancelled the booking on 05.12.2016 i.e., much before the actual date of delivery of the flat making it extremely clear that the complainants had no intention to purchase the flat. The complainants cancelled the booking based upon anticipated future of not being handed over with the flat.
The Ld. Counsel for the OP has further submitted that the complainants cannot show and/or has not shown even a single scrap of paper wherein they have raised any query regarding the bank loan. So, there was no grievance of the complainants regarding the bank loan. Hence, she has prayed for dismissal of the complaint case.
Upon hearing the parties firstly, we have to consider whether the value of the case is within the jurisdiction of this Commission. The OP has stated that the claim of the complainants is blow Rs.20,00,000/- and therefore, the case is not maintainable before this Commission. This plea cannot be accepted since as per CP Act, 1986 the primary jurisdiction is to be considered upon the total value of the case property and compensation claimed. In the instant case, the value of the flat and compensation is well within the pecuniary jurisdiction of this Commission and, therefore, the case is maintainable.
On perusal of the entire materials on record, it is admitted position that the complainants booked a flat in question being No. 904 on 9th and 10th floor (Duplex) Tower – 2, block A measuring 1220 sq. ft. at a project proposed to be constructed by the OP. It is also admitted position that the complainants requested the OP to change booking of the Duplex to a flat. Accordingly, the OP changed the booking and issued a new allotment letter in respect of apartment being No. 504, Tower – 2 Block B measuring 1300 sq. ft. It is also admitted position that a Memorandum of Understanding was signed by and between the parties on 16.04.2016. As per MOU, the complainants paid Rs.12,08,215/-. The Terms and Conditions are mentioned in the Clause No. 1 of the MOU, wherefrom it appears that the complainants have paid a sum of INR. 12,08,215/- (INR. Twelve Lakhs Eight Thousand two hundred and fifteen) only which is equal to 17% of BSP & 20% of LPC + HLC + car parking + corpus deposit + IFMD + Club Membership and including applicable service tax against Flat No. 504 Floor 5th Type 4, Tower 2, Block-B Super Built Up Area 1300 sq. ft. in the Project “URBAN MANGO” of the First Party.
As per Clause No. e under the heading Terms and Conditions of the MOU, the OP is liable to hand over the possession of the flat within December 2018 with a six months grace period, i.e., June 2019. Clause No. ‘e’ of the Terms and Conditions of the Memorandum of Understanding is reproduced as under:
“That the First Party will hand over the possession of the said flat to the Second Party after completing all the legal compliances and due process regarding the same and such handing over the possession of the said flat shall be on and around the month of December, 2018 with a six months grace period that is the month of June 2019.”
It is true that the complainants cancelled the booking much before the stipulated period of handing over the possession of the flat in question. The plea taken by the complainants is that they did not observe any progress of the project in question to be constructed by the OP and ultimately, the complainants were compelled to cancel the booking. Though, no valid document comes forthwith to us to prove that the complainants were compelled to cancel the booking due to inaction of the OP, however, at the time of final hearing of the instant case, i.e., that is on 05.10.2023, the Ld. Advocate for the OP has frankly submitted before this Commission that till date the project has not been completed and they cannot handover the flat to the complainant upon receiving the balance consideration. Though the complaint case is prematured one, since the complainants have not waited till the stipulated date of delivery of possession, but it is the fact that the OPs have accepted the cancellation request of the complainants and offered them refund of paid amount. Accordingly, the OP has handed over three post dated cheques which are mentioned in the earlier portion of this judgment. Since the first cheque being No. 288971 was dishonoured the complainants have not presented the rest two cheques before the bank.
The complainants annexed the three photocopy of A/C payee cheques which were handed over by OP towards refund. Therefore, it is clear that OP was ready to refund the amount to the complainant. When the OP was agreed to refund the aforesaid amount to the complainant, at this juncture, the OP cannot deny against the refund of the aforesaid amount.
It is evident from the MOU that complainants have paid Rs.12,08,215/- which is not denied by the OP. Therefore, it may be concluded that the complainants are entitled to get the paid amount from the OP. Complainants have cancelled the booking on the ground that no progress work was observed in the project. On the other hand, OP has not completed the project in time as per MOU without showing any cogent ground. In this regard, we can safely rely upon the decision of Suniti Kumar Bhat and others versus Unitech Acacia project Private Limited and others reported in 2018 (3) CPR 795 NC wherein the Hon’ble National Commission held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of amount paid by him along with compensation.
The Hon’ble National Commission, in Neena Mehrotra and Anr. Vs. M/s. Unitech Limited, reported in 2017 (3) CPR 376 (NC) has been pleased to hold that in absence of any cogent explanation for failure to comply with stipulation of delivery of possession, opposite has committed deficiency in service as also has indulged in unfair trade practice. When the OPs is not in a possession to offer the possession of the apartment, the said opposite party/company shall refund the amount with simple interest without any further liability and the allottee cannot be expected to wait for possession of the aforesaid apartment for indefinite period of time.
In view of above discussion, , we are of considered view that the complainants are entitled to get refund which was agreed by the OP in the year 2017. Accordingly, OP has handed over three post dated cheques towards refund and since the first cheque was dishonoured, other two cheques were not presented. If the cheques were encashed, the complainants ought not to have taken the recourse of law. Therefore, the OP is bound to pay the interest over the principal amount from the date of each payment till the date of actual payment. Since, the complainants have cancelled the booking before the stipulated date of delivery of possession of the flat in question, we are of considered view that complainants are entitled to get interest at the rate of 5% p.a. only from the date of payment till its realization in the form of compensation. As a result, the complainants are entitled to get relief.
Accordingly, the complaint case succeeds.
Hence,
It is
O R D E R E D
That the complaint case being No. CC/480/2018 be and the same is allowed on contest against OP with cost.
The OP is directed to refund Rs.12,08,215/- (Rupees twelve lakh eight thousand two hundred and fifteen) only along with simple interest @ 5% p.a. from the date of each payment till its full realization in the form of compensation to the complainants within 60 (sixty) days from passing of this order.
The OP is also directed to pay litigation cost of Rs.10,000/- (Rupees ten thousand) only to the complainants within the aforesaid stipulated period.
If the OP fails to comply with the above order within the stipulated period of time, the complainants are at liberty to put the decree into execution.
The Complaint Case, is thus, disposed of, accordingly.
