FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The case of the complainants, in brief, is the Complainants executed an Agreement for Sale with the OPfor a residential unit at SMART HOME RESIDENCY at GREEN TECH CITY, at Mouza –Bajetaraf, under L.R. Plot No. 91, 97, 102 to 110, 113, 226, 232 to  234,  232/1233, 233/1234, 233/1245, Police Station – Rajarhat, within the limits of Chandipur Panchayet, District – 24 Parganas, Kolkata – 700135, comprised in Block No. 05 being unit No.L2 on the 2^nd floor, measuring about 650 sq.ft along with one car parking space on the Stilt Level by paying Rs.1,03,090/-  as a booking money on 16/03/2013 against the sale price of Rs.20,24,500/- , Rs.3,04,012/- on 21/10/2013 and Rs.97,500/- on 07/11/2013Such payments are duly received by the OPendeavors to complete the construction of the aforesaid Unit and will hand over the possession thereof to the Complainant within 30 months from the effective date. After receiving the abovementioned amount the OP send a letter to the Complainants to rectify / modify the said Agreement and to extent the period of said Agreement.  Therefore a Supplementary Agreement executed between the parties on 13/01/2014.  On 17/02/2014 Central Bank of India, Bhowanipore Branch sanctioned Housing Loan of Rs,11,22,000/- in favour of the Complainant , the total repayment period was 144 months including moratorium period of 24 months and monthly installment is Rs,14,983/-. Thereafter as per demand letter of the OP and at the request by the Complainant the Central Bank of India paid an amount of Rs.2,08,705/- on 31/03/2014, Rs.1,09,551/- on 16/05/2015, Rs.2,20,152/- on 01/03/2016 to the OP.The complainant noticed that the OP hasstopped work on the project after Completion of piling stage. Being frustrated, the Complainant asked the OPs to refund the deposited amount of Rs.4,07,102/- vide letter dated 20/03/2017, 30/06/2017, 01/08/2017, 31/08/2017 . But the OP did not reply. Central Bank of India send a Legal Notice to the Complainant stating that the Loan Account of the Complainants became NPA on 30/06/2018 and a sum of Rs.3,23,184/- has fallen due and payable by the Complainant to the Bank together with further interest at the agreed rate calculated with monthly rate from 06/10/2018 till the date of actual payment within 15 days from the receipt of the said letter failing which appropriate steps would be taken. As such, the complainant again send a letter to the OP on 13/12/2018 to refund the deposited amount with interest and square off the Bank’s dues to the tune of Rs.3,23,184/- including interest up to 05/10?2018 and further interest from 06/10/2018 within the actual payment as demanded by the bank as per legal notice dated 20/11/2018. It is observed from the statement of loan account issued by the said Bank the OP has clear up part of loan amount to the Bank as per Tripartite Agreement . On 04/06/2019 the OP sent a letter to the Complainants stating that said project was progressed as conceptualized and the Complainants has been make next payment well in advance under the revised payment plan. In reply vide letter dated 10/07/2019 the Complainant asked the OP to refund the deposited amount of Rs.4,07,102/- to the Complainant and repay the Bank’s dues within 15 days from the from the receiptof the said letter. On enquiry from the bank the it is found that Rs.7,019.17/- is still remained outstanding as on 24/08/2020. Finding no other option the Complainants sent a Legal Notice dated 26/02/2021 to the OP for refunding of Rs.4,07,102/-  along with applicable interest. Till date the complainant neither got the flat nor got the refund of deposited money. Hence the Complainants have filed the instant consumer complaint for getting reliefs.

OPcontested the case by filing W.V. 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 has booked the said flat for commercial purpose hence not consumer within the meaning of Consumer Protection Act.

Further 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 like continue rain and flood. Therefore the developer cannot be held responsible for such delay. Thus, 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 Complainant has hired Housing Construction service from the OPfor one residential apartment being Unit No.L2 on the 2^nd floor in Block- 05 along with a covered car parking spacesituated in the SMART HOME RESIDENCY 1 at GREEN TECH CITY   by paying Rs.4,07,102/- out  of total consideration amount of Rs.20,24,500/- vide Cheque No.221043 dated 16/09/2013 of Rs.1,03,090/-,Cheque No.221044 dated 20/10/2013 for Rs.3,04,012/-, drawn on United Bank of India and abovementioned flat was allotted to the Complainant by the OP vide letter dated 23/09/2013 and an Agreement for Sale has been executed between the parties on 18/11/2013. Documents furnished by the complainants supported the averments made out in the complaint petition. It has been argued by the Complainants that despite the aforesaid Agreement OPsend a letter to the Complainants to rectify and / or modify in the manner and to extend the period of the said Agreement and a Supplementary Agreement has been executedbetween the parties on 13/01/2014. Photocopies of the said letter and Agreement are furnished by the Complainants. On perusal of the record it is found that Central Bank of India, Bhowanipore Branch, has sanctioned the Housing Loan of Rs.11,22,000/- vide letter dated 17/02/2014 in favour of the Complainants wherein it is stated that:

As the loan is for purchase of Flat under construction, the repayment will begin as per sanction irrespective of completion or non-completion of construction of the Apartment OR Delivery or No Delivery of possession of the Flat by the builder, for what so ever reason.

Thereafter an amount Rs,2,08,705/-, Rs.1,09,551/-, rs.2,20,152/- has been transferred to the OP’s Account namely “Greentech IT City Pvt Ltd. Escrow A/c 3263293766” through the said Bank.Photocopy of the letter dated 20/03/2017 issued by theComplainant No.1 to the OP goes to show that the Complainants requested the OP to refund of amount paid for the said flat as the construction work at the said premises has been stopped. Again on 30/06/2017, 01/08/2017 and 24/08/2017 the Complainant No.1 sent the reminder to the OP vide letters demanding the refund of deposited amount. The Complainants argued that the OP did not bother to reply the said letters and due to negligence and deficiency of service on the part of the OP the Central Bank of India, Bhowanipore Branchhas served a Legal Notice dated 20/03/2018 to the Complainants stating that the Loan Account became NPAon 30/06/2018 as an amount of Rs.3,23,184/- has fallen due. It is also  submitted by the  Complainants that on receiving the said notice the Complainants called upon the OP vide letter dated 13/12/2018to refund the deposited amount of Rs.4,07,102/- along with applicable interest.

It is noted that after receiving the aforesaidletters issued by the Complainants the OP did not bother to reply the same by revealing any clear and transparent information about the booked flat. On scrutiny of the documents on record it is found that the OP informed the Complainants vide letter dated 04/06/2019  that expansion of their project was in progress as conceptualized and they shall intimate the Complainants about next payment plan. It is also found that in reply the Complainants again requested the OP to refund the deposited amount vide letters dated 10/07/2019 and 01/09/2020. The Complainants alleged as the OP remained unturned therefore they have compelled to send a Legal Notice dated26/02/2021 to the OP. Photocopy of the Legal Notice dated 26/02/2021 is adduced by the Complainants in this regard.

Controverting the allegation made by the Complainant, Ld. Advocate for the OP argued that the alleged dispute in the Petition of Complaint is not a consumer dispute within the meaning of the C. P. Act as the complainants booked the said flat for the commercial purpose. We have travelled through the documents on record and found that Complainants have booked a flat in the said residential project of the OP against Rs.4,07,102/-. We do not find any piece of document where from it would prove that Complainant is not consumer under the OP. As such, we do not find any logic in such submission.

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 flat in favour of the complainant within the stipulated period and failure on the part of OP to execute an Agreement for Sale and handover the subject flat within the stipulated period amounts to deficiency in services on the part of the OP.

Based on the above observation, it is our opinion that, 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 Agreement for 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, photocopies of the letters and Legal Notice sent by the Complainant to the OP show that complainant requested the OP to refund the booking money i.e. Rs.4,07,102/-  stating the reason that  since the booking was made long back but the OP has failed to complete the construction work within stipulated period as per the Agreement. In this regard we are opined that, the Complainants cannot made to wait indefinitely for possession of the flat, when there is absolutely no response from the OP. Thus, this gesture of the OP can be termed as unfair trade practice.

In the result, the Consumer Complaint is allowed on contest in part against the OPs with following directions:

1.  OP is directed to refund the deposited amount of Rs.4,07.102/- to the Complainant.

2. OP is further directed to pay litigation cost of Rs.10,000/- and Rs.25000/- as compensation for harassment mental agony to the Complainants.

3. This amount to be paid by the OP to the Complainant within 45 days from the date of this order, failing which, the deposited amount shall attract interest @12% p.a. till realization.

Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order within stipulated period in a  separate petition.

Copy of the Judgment be supplied to the parties as per rules