For the Complainants - Mr. Mrinal Kanti Roy, Advocate.
For the OP1 -Mr. Vinit Sharma, Advocate.
FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The instant complaint u/s12 of the Consumer Protection Act, 1986 (for brevity ‘the Act’) is at the instance of an intending purchaser against a Limited Construction Company and India Bulls Distribution Services Ltd. on the allegation of deficiency of service in a dispute of housing construction.
Succinctly put, complainant’s case is that he made an application for booking of one residential unit being No. A-6-FF-10 on the 4th floor in Block No.A in Tower No. 6 situated in the ECO Homes at Mouza:Uttar Gazipur PS : Kashipur , South 24- Parganas against payment of Rs.1,03,500/- including service tax with the OP-1. The OP1 confirmed the said booking by issuing the allotment letter dated 29.09.2015. The total consideration of the said Unit was 17,08,000/- + Service Tax and the complainant has paid Rs.3,25,246/- out of total consideration. The OP-1 failed and neglected to start the project till December, 2016. The complainant has stated that he was compelled to cancel the said booking and requested the OP-1 to refund the earnest money vide letter dated 27.01.2017. The OP-1 vide letter dated 05.07.2017 intimated the complainant that refund process will tentatively be completed by the third week of July 2017. The complainant astonished that the OP-1 transferred Rs.1,85,304/- to his Bank
Account instead of Rs.3,25,246/-. Finding no other alternative, complainant issued a letter dated 21.08.2017 to the OP1 requesting them to release the balance earnest money but the OP1 failed and neglected to take any step to refund the balance earnest money. Demand notice dated 08.11.2017 was sent to the OP1 and the OP1 denied to refund the balance earnest money. The acts and conducts of the OP1 clearly establish that the developer is guilty of deficiency in service and unfair trade practice. Hence, the complainant has approached this Forum to get relief fully mentioned in the prayer of the complaint.
The OP1 by filing a written version has stated that the consumer case is bad in law and also barred by limitation. The complainant is not a consumer within the meaning of Consumer Protection Act, 1986. The specific case of the answering OP is that Article 4 of the agreement deals with the cancellation terms, whereby it was agreed between the parties that if the purchaser defaults to make their timely payments; such shall be construed as a breach committed by the purchaser and if the default continues for a period of two months the owner/ developer shall be entitled to cancel the agreement, as the timely payment is the essence of the allotment. Delays payment for more than 15 days will render the allotment and/or agreement liable for cancellation. As a good gesture the answering OP did not take any step for cancellation of the agreement in spite of nonpayment of installment despite repeated reminders and requests. It was agreed between the parties that in an event handing over possession of the concerned Unit/Flat is delayed due force majeure events, the owner/developer cannot be held responsible for such delay. By an unregistered agreement for sale dated 20.09.2016 it was agreed between the parties that in the event of a dispute arising out of or in connection with the agreement such dispute shall be referred to arbitration in accordance with the provision of Arbitration and Conciliation Act 1996. There is no deficiency in service and / or unfair trade practice on the part of the answering OP. Therefore, the complaint should be dismissed with cost.
OP2 despite service of notice of the complaint has failed to file W.V. within the limitation provided u/s 13(2) of the Consumer Protection Act, 1986. No request for condonation of delay or extension of time for filing W.S. is made. Therefore, the right of the OP2 to file W.V. was closed vide proceedings dated 10.12.2018.
Complainant Sri Dipayan Dey has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by the OP1.
On the contrary, on behalf of OP1, one Uday Modi, one of the Director/Authorized signatory of the OP1 has filed evidence through affidavit. The said Uday Modi has also given reply against the questionnaire set forth by the complainant. Besides the same, complainant has also relied upon several documents and at the time of final hearing, both parties have also filed brief notes of argument in support of their respective cases.
On perusal of pleadings, evidence led by the parties coupled with the documents annexed therewith, it would reveal that on 08.09.2015 complainant submitted an application for booking of one residential Unit No. “A-6-FF-10” on the Fourth Floor, in Block No.1, in Tower No. 6 situated in the ECO Homes at Mouza-Uttar Gazipur, P.S. Kashipur, South 24 Parganas against deposit of Rs.1,00,000/- to the OP1. The overwhelming evidence on record further goes to show that the super built-up area of residential unit is 580 sq.ft. and the cost of unit and open car parking space is Rs.17,08,000/- (plus Service Tax as applicable).
It remains undisputed that the OP1 issued allotment letter dated 29.09.2015 in respect of Unit No. “A-6-FF-10” on the Forth Floor, in Block No. A, in Tower No. 6 situated in ECO Homes at Mouza - Uttar Gazipur, P.S. Kashipur, South 24 Parganas. It should also not be out of place to mention here that there is a payment schedule in the allotment letter. The materials on record make it clear that the complainant had paid Rs.3,25,246/- in total to the OP1 against the subject unit on 08.09.2015, 28.12.2015, 13.10.2015 and 19.01.2016 respectively.
It is true that the OP1 failed to construct the ECO HOMES project till the date of filing the instant consumer case. It is well settled that after making payment of Rs.3,25,246/- as consideration amount, a purchaser cannot wait indefinitely for having a roof over his head. In that perspective, when the OP1 has failed to complete the project this itself amounts to deficiency in service.
Admittedly no Agreement for Sale was executed between the parties in respect of the subject unit. The project was not launching till December, 2016 though the allotment letter was issued on 29.09.2015. Complainant has lost his faith and cancelled the booking of subject unit vide letter dated 27.02.2017 with a request to the OP1 to refund the booking money. It is also true that the OP1 vide letter dated 05.07.2017 informed the complainant that cancellation process has been initiated for the subject unit and refund process will tentatively be completed by 03rd week of July, 2017. It is evident that the OP1 transferred Rs.1,85,304/- to the Bank Account of the complainant after deducting Rs.1,39,942/-. No reason was assigned by the OP1 regarding deduction of balance booking amount despite e-mail dated 21.08.2017 and demand notice dated 08.11.2017 of the complainant. Even such demand notice was unattended.
No Agreement for Sale for the subject unit was executed between the complainant and OP1. Thus, the question of force majeure events and refer the dispute to the Arbitrator in accordance with Arbitration & Conciliation Act, 1996 does not arise. We do not find any substance regarding the plea taken by the OP1 in their written version about force majeure events and dispute shall be referred to Arbitrator under Arbitration & Conciliation Act, 1996. The complaint is maintainable as Section 3 of the Act states that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. The Hon’ble NCDRC in Aftab Singh – vs – EAAR MGF Land Ltd. & Anr., reported in III (2017)CPJ 270(NC), wherein it is held that Arbitration Clause in Buyer’s Agreement between the Builder and complainant cannot circumscribe jurisdiction of Consumer Fora, notwithstanding the amendments made to Section 8 of Arbitration Act. The above judgement has been upheld by Hon’ble Supreme Court in Civil Appeal No. (S)-23512-23513 titled as M/s. EAAR MGF Land Limited & Anr. - vs – Aftab Singh, I(2019)DLT 102-I(2019) CPJ 5(SC).
The OP1 did not deny regarding issuance of allotment letter dated 29.09.2015 and also receiving payment of Rs.3,25,246/- as booking money from the complainant. Thus, the complainant is a consumer within the meaning of Section 2(1) (d) of the Consumer Protection Act.
On evaluation of materials on record it is quite evident that the complainant being the “consumer” hired the services of the OP1 in a dispute housing construction and the OP1 has failed to construct the protect and thereby deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. In the premises, complainant is entitled to some reliefs. In our view, when there is hardly no any chance to complete the construction in near future, an order directing the OP to refund the balance amount of Rs.1,39,942/- along with the compensation in the form of simple interest @10 percentp.a. from the date of cancellation of booking till its realization will meet the ends of justice. Under compelling circumstances, the complainant has come up in this Forum for which he is entitled to litigation costs which we quantify at Rs.5,000/-. No privity exists between the complainant and OP2 India Bulls Distribution Services Ltd. Complainant has no occasion to implead OP2 as a party to this case. Thus, instant consumer case against the OP2 is dismissed.
In view of above, the complaint is disposed of on contest against the OP1 with the following directions:-
- The OP1 is directed to refund the balance booking amount of Rs.1,39,942/- along with compensation in the form of simple interest @10 percentp.a. in favour of the complainant from the date of conciliation of the booking (i.e.27.01.2017) till its realization;
- The OP1 is directed to make payment of a sum of Rs.5,000/- as costs of litigation in favour of the complainant;
- The above payments should be paid within 60 days from date in terms of the above order.
Order be communicated to the parties as per rules.
