Mr. Sandip Das filed a consumer case on 18 Aug 2022 against Green Tech IT City Private Limited in the Kolkata Unit-IV Consumer Court. The case no is CC/73/2021 and the judgment uploaded on 23 Aug 2022.
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Dated : _ 18th August, 2022 Judgement | |||||||||||||||
HON’BLE MR. SUDIP NIYOGI, PRESIDENT FACTS The instant complaint under the Consumer Protection Act, 2019, has been filed by the complainants stating, inter alia, that by filing an application in the prescribed Form on 01.04.2012 they agreed to buy Unit No.1 (E), Super Duplex Unit, Block – 17 of the Green Tech IT City Pvt. Ltd. at Shikarpur, P.S- Rajarhat, North 24 (Parganas), Kolkata – 700135 at a consideration of Rs.62,00,000/-. An agreement for sale with the OP dated 06.08.2012 was made. Out of the said consideration Rs.10,00,000/- was to be paid by the complainants on 12.06.2012, when the balance sum would be payable as per Schedule III of the aforesaid agreement. It was also agreed, the Project would be completed within a period of 18 months along with a grace period of further 6 months i.e. on 06.08.2014 and the OP would hand over the peaceful possession to the complainants. The OP also by a letter dated 08.08.2012 as a supplement to the agreement, agreed to compensate Rs.5 per Sq. ft. of the built up area per month, if the said Unit is not delivered within the stipulated time. It is said that the complainants kept on paying the balance consideration for the Unit as per Schedule III of the agreement, but OP neglected to hand over the possession. The complainants also objected to the quality of work in the Unit. It is said that the 18 months along with a period of further 6 months has long expired with the Unit not being handed over to the complainants. According to the complainants only 10% of the consideration price which comes to Rs.6,20,000/- remains to be paid by them which is payable on or before possession is delivered. It is also claimed that complainants are entitled to Rs.8,37,900/- being the amount payable towards compensation @ 5% per Sq. ft for delay in completing the Project and handing over the same. So, complainants are entitled to Rs.2,17,900/- from the OP after adjustment of the amount of the last installment. Further it is alleged that OP with mala fide intention through communication dated 26.07.2021 & 27.07.2021, wanted to cancel the allotted Unit, if the complainants failed to make payment of the balance amount and take possession by 31.07.2021. However, a legal Notice was issued by the complainants for execution of a conveyance deed in their favour and making payment after adjustment as stated aforesaid, but OP failed to comply with the notice. Now, complainants have filed this case before this Commission making allegations of deficiency in service and unfair trade practices against the OP and made several prayers including execution of Deed of Conveyance in their favour and also compensation etc. The OP appeared in this case and also filed W/V but ultimately has not contested and adduced evidence. So, this case has been heard ex parte against the OP. Now,
POINTS FOR CONSIDERATION
FINDINGS On behalf of the complainants, Complainant No.1 has filed Evidence in Chief on Affidavit. This apart, several documents namely, (Annexure – A) agreement for sale between the parties dated 06.08.2012, receipts showing payment of part consideration, one letter dated 08.08.2012 issued by the OP to the complainants, which was signed by the complainants. (Annexure – B) several electronic mails & a brochure are annexed there with Exhibit – B collectively. (Annexure – C) copy of legal notice, one legal notice (Annexure – E) have been filed. Point No. 1 Here, the complainants, who had booked one Duplex in the Project as stated by him, to be developed by the OP and paid consideration but alleged the OP failed to hand over the possession to them and execute the deed of conveyance in their favour. Consideration price of his Unit is found to be Rs.62, 00,000/- which is admittedly beyond the pecuniary jurisdiction of this Commission. But be it noted that by way of Amendment Act of the Consumer Protection Act, 2019, the pecuniary jurisdiction of the District Commission was enhanced to Rs.1,00,00,000/- but, subsequently, by a notification dated 30/12/2021 the Ministry of Consumer Affairs, Food and Public Distribution Govt. of India, the pecuniary limit of the District Commission was reduced to Rs.50,00,000/-. However, in the practice direction issued by the National Consumer Disputes Redressal Commission on 07/02/2022 it has been categorically stated in point No. 6 “the Consumer complaints filed between 20/07/2020 i.e. the date from which the Consumer Protection Act, 2019 has been made effective, and 30/12/2021 i.e. the date of notification of the Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021 shall not be transferred.” Here, the present case has been filed before this Commission on 16/11/2021 i.e. the date which is in between the said two dates as mentioned in point No. 6 of the said practice direction. That being so the instant complaint cannot be transferred to Higher Authority but has to be heard by this Commission. Considering this and also considering the nature of the case of the complainants this case is found to be maintainable. Point No. 2 We have gone through the materials on record including the evidence filed on behalf of the complainants. From all these, it is clear that complainants had agreed to buy Unit No. “E” Upper Duplex Unit in Block – 17 of the Green Tech City within P.S. – Rajarhat, District – North 24 (Parganas) and accordingly, the agreement for sale dated 06.08.2012 was entered into between the complainants and the OP. The agreed consideration was Rs.62, 00,000/- to be paid in accordance of the Schedule (III) of the agreement. It was also agreed that the said construction would be completed and the possession of the Unit to be handed over to the purchasers within 18 months from the effective date with a grace period of further 6 months. The complainants are found to have paid Rs.10, 00,000/- by a number of cheques which have been mentioned in the agreement itself. This apart, they have also made payment in a regular way as revealed by the money receipts produced by them. According to complainants, Rs.6, 20,000/- which is 10% of the entire consideration, is allegedly due and payable by them only on/before possession. They have claimed compensation @ Rs.5/- per Sq. Ft. of the built up area per month from the expiry of the stipulated period within which the property was to be handed over in accordance with the agreement. Now according tocomplainants, they are entitled to a sum of Rs.8,37,900/- on this count and prayed for adjustment of said remaining amount of Rs.6,20,000/- against the said amount of compensation they are entitled toand the balance amount of Rs.2,17,900/- be paid to them by the OP. Though the OP subsequently has not contested the case however, in their Written Version it has been claimed that the delay in handing over the possession of the unit of the complainants has been due to force majeure events for which the developer cannot be held responsible. It has also been pointed out about the force majeure events which include (i) any delay in payment as per agreement by the purchaser (ii) any delay in obtaining any approval, sanction of the authority concerned (iii) any delay due to any order, notification of the authorities concerned (iv) any delay in obtaining electricity, water connection and (v) any default by the purchaser of the terms and conditions of this agreement. But unfortunately here the OP failed to point out the cause or causes for which the project could not be handed over to the complainants. As we find the agreement for sale was made on 06/08/2012 and the stipulated period including the grace period ended on 06/08/2014 i.e. the said period has expired long back before the pandemic (Covid-19) arose in 2020-2021. As the OP failed to point out any particular reason(s) for delay in handing over the unit, we think the complainants are entitled to compensation at the stipulated rate of Rs.5/- from the date of 07/08/2014 for a period up to December, 2019. The amount of compensation @Rs.5/- as stipulated per Sq. ft. per month for an area of 1995 Sq. ft. would be more than Rs.6, 20,000/- which the complainants have to pay as last installment towards consideration. Be it noted, we exclude the period after the pandemic when the lock down was lifted, in considering the amount of compensation. Thus, taking into account the amount which the complainants are supposed to pay and the amount of compensation for delay in handing over the Unit, we think these two amounts should conveniently be adjusted without any claim or counterclaim between the parties. So, on consideration of the materials on record we are of the view that the instant case should be allowed and OP to execute the deed of conveyance in favour of the complainants in respect of their Unit and also handing over the peaceful possession thereof to them. The balance amount of Rs.6,20,000/- would be adjusted against the amount of compensation for delay in handing over the Unit as discussed above. With this, both the issues are disposed of in favour of the complainants.
Hence it is, ORDERED That the instant case be and the same is allowed against the OP ex parte. The OP is directed to get the deed of conveyance executed and registered in favour of the complainants in respect of their unit and also to hand over the peaceful possession of the same to them within a period of 45 days from the date of this order. OP is also directed to pay Rs.30,000/- (Rupees Thirty Thousand Only) to the complainants for compensation for harassment and Rs.8,000/- (Rupees Eight Thousand Only) for cost of litigation also within the same period. If the OP fails to comply with this order within the stipulated period, the complainants shall be at liberty to proceed in accordance with law.
Dictated and corrected by me.
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