FINAL ORDER / JUDGEMENT

Smt. SAHANA AHMED BASU

The case of the complainants in a nutshell is that the present substituted complainant’s husband namely Sani Khan (since deceased) applied to the OP for booking of a Smart Home 02 Bedroom Flat being Unit No. 1N on the 1^st Floor , measuring 950 sq.ft (super built up area) in Block No. 03 for atotal consideration of Rs.27,20.000/- and as per demand made by the OP the complainant paid a total amount of Rs.8,16,001/-  with service tax amount to the OP .But after passes of months after the promised date of handing over the possession to the complainant the OP failed  to handover possession to the complainant. Moreover the OP  demanded money from the complainant in June 2016. The complainant tried several times to enquire from the OP about the progress of work of the said unit, but all in vain. The complainant alongwith her late husband visited the construction site and to her utter surprise she found that the construction work was at a standstill and had not progressed at all. Ultimately the complainant’s late husband sent anotice dated 29.08.2016 to the OP and sought for the refund the entire amount paid by the way of installment along with interest at the rate of 18% per annum thereon. Said notice was duly received by the OP .Upon receipt of the said notice the OP failed and neglected to make payment of the same. Finding no other option this complaint is placed before this Ld. Commission.

The complainant , who filed the complaint petition , died during pendency of the instant consumer complaint  and his legal heirs filed a petition before this Ld. Commission for substitution. Accordingly the Amended Consumer Complaint was filed on 18.07.2018.

            OP has contested the case by filing written version assailing the maintainability of the case and denying and disputing all allegations made out in the complaint petition. The case of the OP is that an Agreement for Sale dated 22.08.2013 was mutually entered into by and between the parties . Vide such agreement the complainant was liable to pay an amount of Rs.27,20,000/- as the total consideration amount for the purchaser of the said unit/flat from the OP but the complainant neglected to make timely payments proving that there has been a breach of obligation on part of the complainant which delayed the project . Article 4 of the said Agreement deals with the cancellation terms, whereby it was agreed between the parties that if the purchaser defaults to make timely payments such shall be construed as a breach committed by the purchaser and default continues for a period of 2 months the developer shall be entitled to cancel the agreement . Moreover, the infrastructure sector throughout the India including in West Bengal is going through a very bad period. There has been a slowdown in respect to the infrastructure sector is beyond their control for which they cannot be held responsible. By Agreement for sale it was agreed between the parties that in an event that handing over possession of the said flat is delayed due to force majeure events the developer cannot be held responsible for such delay and it was also agreed between the parties that in the event of a dispute arising out of or in connection with the Agreement such dispute shallbe referred to the arbitration in accordance with the provision of the Arbitration & Conciliation Act 1996 , as stated under Article 16 of the Agreement . Moreover as per the  terms of the Agreement Scheduled amount of Rs.27,20,000/- should have been paid , but the complainant paid an amount of Rs.8,16,001/- as part payment . Further demand was made by the OP as per the Allotment letter dated 19.07.2013 and later as per the agreement for sale dated 22.08.2013. . Thereafter demand for one Infrastructure & Development charges and other charges of amount 1,42,500/- was made on 19.07.2013 as per the terms pf Article 10 and schedule VI if the said agreement . Again a reminder of the same made on was made on 07.11.2013. But no amount was received from the complainant for the same .

In support of their case both parties have tendered evidence through affidavit. They have also relied to the questionnaires set forth by themselves. At the time of final hearing BNA has been filed on behalf of the complainant. Though the OP was also represented through their Ld. Advocate yet no BNA has been filed .

The pleadings of the parties and the evidence on record make it quite clear that OP is a company incorporated under the Company’s act and undertook development in respect of the project Known as GREENTECH CITY . Being allured of such advertisement, the complainant booked one flat measuring about 950 sq.ft. being Unit No.03-N1 , on 1^st Floor  at Block – 03 , Smart Home Residency – 1 , lying and situated at “Green City”  at Mouja – Bajetaraf , P.S.- Rajarhat , Kolkata – 700135, Dist – North South 24 Pgs within the local limits of Chandpur Panchayet at a total consideration of Rs. 27,20,000/- . It is also not in dispute that the complainant has already paid Rs.8,16,001/- as part consideration amount towards the said total  consideration amount on diverse dates. As per terms of the agreement , the OP was under obligation to hand over the subjectflat to the complainant within 24 months from the effective date. In this regard Article 9(i) of the agreement for sale between the parties dated22.08.2013 appears to be relevant which is reproduces  below :

“"Expected possession time: Based on the present plans and estimations, the Owner/Developer endeavors to complete construction of the Schedule-II Unit and hand over possession thereof to the Purchaser within 24 months from the Effective Date Provided that the Owner/Developer shall be entitled to reasonable extension of time for giving delivery of the Schedule-II Unit of the aforesaid date, if the Purchaser makes default in making payment and also if the completion of the Schedule-II Unit is delayed on account of Force Majeure Events; including (i) any delay in payments stipulated in this Agreement by the Purchaser; (ii) any delay is obtaining any approval, sanction of the authorities concerned; (iii) any delay due to any order, notification of authorities concerned; (iv) any delay in obtaining electricity and/or water connections; and (v) any default by the Purchaser of the terms and conditions of this Agreement.  In case of delay in delivering possession, the Developer shall be allowed a grace period of 6 (six) months".

The confirmation letter issued by the OP relates to payment schedule and as per payment schedule, the complainant was under obligation to pay the consideration amount in the following manner:

1. On Allotment Letter                            1,00,000/-
2. On Agreement                                    4,44,000/-
3. On Agreement                                    2,72,000/-
4. On completion of 1^st Floor Casting     2,72,000/-
5. On completion of 2^nd Floor Casting    2,72,000/-
6. On completion of 3^rd Floor Casting     2,72,000/-
7. On completion of 4^th Floor Casting     2,72,000/-
8. On completion of 5^th Floor Casting     2,72,000/-
9. On completion of Brick Work              1,36,000/-
10. On completion of Flooring                   2,72,000/-
11.  On Possession    1,36,000/-

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                                          Total                27,20,000/-

Evidently, it was a construction linked payment plan.  There is no evidence that the OP No.1 Company has ever informed the complainant to pay amount on the basis of progress of construction, but sent a notice dated 03.06.2016 demanding a sum of Rs.2,84,239/- , almost after 10 months from the date of handing over possession. Although there was no whisper about the date of completion and/or handing over possession or the present possession of the said Unit.

In the written version, the opposite party took a plea that due to slowdown in respect of the infrastructure sector, the development of the project could not be done and as such they cannot be held responsible.  It is undisputed proposition of law that the parties are bound by the terms of the agreement.  In the agreement, the developer undertook to handover the possession of the flat andwithin 24 months from the date of agreement subject to force majeure circumstances for a grace period of six months.  The fact remains that the OP has failed to advance any force majeure circumstances.  The economic slowdown of the housing infrastructure as alleged by the OP is not a force majeure circumstances for which they can shirk off their responsibility in handing over the subject flat within the time frame.

On evaluation of materials on record, it transpires that the complainant being 'consumer' as defined in Section 2(7)(i)(ii) of the Act hired the services of OP No.1 on consideration  and OPs have failed to fulfil their part of obligations as per Agreement for Sale dated 22.08.2013 and thereby deficient in rendering services towards the complainant within the meaning of Section 2(11) read with Section 2(42) of the Act.  Therefore, the complainant is entitled to some reliefs.  Despite payment of bulk consideration amount and agreed to pay the balance amount, when the complainant was deprived from having a roof of his own over his head for long five years, certainly it caused tremendous mentally agony and harassment for which he is entitled to compensation and considering the loss suffered by him .  Under compelling circumstances, the complainant has to knock the door of Ld. Commission constituted under the Act .

          In that perspective, keeping in view the decision of the Hon'ble Supreme Court reported in (2018) 5 SCC 442 (Fortune Infrastructure - Vs. - Trevor D'Lima) it can be held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and in such circumstances entitled to seek refund of the amount paid by him along with compensation.  Keeping in view the of late decision of the Hon'ble Supreme Court reported in (2019) 5 SCC 725 (Pioneer Urban Land & Infrastructure Ltd.  Vs.- Govindan Raghavan) it appears to us that in the facts and circumstances when there is clear deficiency in rendering services on the part of the OP in handing over the possession within the time frame, the complainant is entitled to refund  the amount along with compensation in the form of simple interest @8% p.a. from the date of each payment till its realization.

In view of the above, the complaint is allowed on contest with the following directions:

(i) the OP is directed to refund the amount of Rs.8,16,001/- along with compensation in the form of simple interest @ 8% p.a. from the date of each payment till its realisation;

(ii) the OP is directed to make payment of Rs.25,000/- to the complainant as costs of litigation;

            (iii) the above payments must be made within 30 days from date.