Brief facts of the case are that the OP Green Tech IT City Project Limited is engaged in the business of real estate including developing and construction of multi-storied building. Complainant booked a flat being Unit No. HC-S-9 on 2^nd floor of Block – HC measuring an area of 460 sq. ft. in the project Green Tech IT City identified as “ECO HOMES” situated at Mouza – Uttar Gazipur, J L No. 50, P S Kashipur, under Chandpur Gram Panchayet, Kolkata – 700135 against payment of Rs. 1,03,500/-. OP issued allotment letter dated  31.10.2015  of the subject unit to the complainant. Complainant has already paid Rs. 4,18,500/- to the OP on different dates against money receipts. OP assured to execute an Agreement of Sale within 30 days from the date of booking and possession of the unit shall be delivered within 24 months of the date of booking. Despite several request, OP did not execute any Agreement for Sale in respect of the unit. Even the OP did not offer the possession of the unit. Complainant had been to the project site and surprised that no development work started at the project site. Thereafter, complainant demanded refund of money. OP flatly refused it and illegally demanding payment of EMIS without showing any intention as and when they will hand over the subject unit. Alleging deficiency in service and unfair trade practice, complainant has filed the consumer complaint before the commission.

The complaint is resisted by the OP by filing written version. OP pleads that the infrastructure sector throughout India including in West Bengal is going through a very bad period. There has been a slowdown in the overall development which has adversely affected the progress of the project. The economic slowdown in respect to the infrastructure sector is beyond their control for which they being the OP cannot be held responsible as the entire infrastructure of the industry is affected. The delay has been caused due to force majeure events. As such, the OP/Developer cannot be held responsible for such delay. Moreover, the complainant did not pay the installment amount fully mentioned in the allotment letter dated 31.10.2015. Thus, the complaint is liable to be dismissed with costs.

Complainant Somen Chandra Hazra has tendered evidence through affidavit. Complainant has also given reply against the questionnaire set forth by the OP. OP failed to file their evidence through affidavit.

Both parties have relied upon several documents. In course of final hearing both parties have filed brief notes of arguments in support of their respective cases.

The overwhelming evidence on record make it abundantly clear that the complainant had booked a flat being Unit No. HC-S-9 on the 2^nd floor of Block – HC measuring an area of 460 sq. ft.  in the project Greentech City identified as “ECO HOMES” situated at Mouza – Uttar Gazipur, J L No. 50, P S Kashipur, under Chandpur Gram Panchayet, Kolkata – 700135 against payment of booking amount of Rs. 1,03,500/-.

It remains undisputed that the complainant has paid Rs. 4,18,500/- to the OP on  different dates for the subject Unit and no agreement for sale was executed between the parties. It should also not be out of place to mention that the OP/Developer issued allotment letter dated 31.10.2015 with regard to the subject unit to the complainant and payment schedule has been mentioned there. The materials on record make it quite clear that the complainant has paid total Rs. 3,18,500/- out of total sale price. It has been mentioned in the complaint petition that besides the payment of Rs. 3,18,500/- complainant has issued an account payee cheque bearing No. 930059 dated 12.04.2017 drawn on SBI for Rs. 1,00,000/- to the OP. The complainant, however, has failed to produce any scrap of paper, bank statement or receipt showing payment of Rs. 1,00,000/- to the OP on 12.04.2017. In that perspective, the claim of the complainant about total payment of Rs. 4,18,500/- cannot be accepted. However, it has been proved beyond any doubt that the complainant has paid a sum of Rs. 3,18,500/- to the OP towards the payment of sale price of the subject unit.

During final hearing of the case, Ld. Counsel for the OP has submitted that in the Agreement for Sale it has been agreed between the parties that in handing over possession of the unit/flat is delayed due to force majeure events, the Developer cannot be held responsible for delay, if any. He has further contended that force majeure events including (i) any delay in payments stipulated in this agreement by the purchaser; (ii) any delay in obtaining any approval, sanction of the authority concern; (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 the agreement. Giving emphasis to the first sentence of the agreement for sale, Ld. Advocate for the OP has submitted that the complainant is not entitled to get any relief as prayed for as payments is not made within the stipulated time mentioned in the agreement.

On evaluation of materials on record, it is quite evident that no agreement for sale for the subject unit/flat was executed between the parties. OP issued allotment letter dated 31.10.2015 to the complainant in respect of Unit No. HC-S-9, Block – HC on the 2^nd floor in the proposed project identified as ECO HOMES against booking amount of Rs. 1,03,500/-. Thus, the complainant being the “Consumer” hired the  service of the OP in a disputed unit/flat and the OP has failed to construct the project and keep their promise in handing over the unit/flat as per commitment in favour of the complainant within a stipulated period and thereby deficient in rendering services within the meaning of section 2 (11) of the CP Act, 2019. It is well settled that after making payment of a part consideration amount, a purchaser cannot wait indefinitely for having a roof over his/her head. In that perspective, when the OP has failed to construct the project and deliver the possession within a reasonable period, this itself amounts to deficiency in service. In the above premises, complainant is entitled to some reliefs. In our view, when there is hardly any chance to construction the project in near future, an order directing the OP to refund the amount of Rs. 3,18,500/- along with compensation in the form of simple interest @ 10% p.a. from the date of each payment till its realization will meet the ends of justice. Under compelling circumstances, the complainant has come up in this commission for which he is entitled to litigation costs which we quantify at Rs. 10,000/-.

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

1. The OP is directed to refund the amount of Rs. 3,18,500/- along with compensation in the form of simple interest @ 10 % p.a. in favour of the complainant from the date of each payment till  its realization;
2. The OP is also directed to make payment of a sum of Rs. 10,000/- as costs of litigation in favour of the complainant;
3. The above payments should be paid within 90 days from the date in terms of the above order.

It is also made clear that for non-compliance, the provisions enshrined U/s 71 & 72 of the C P Act, 2019 would be also attracted.

The complaint case could not be decided within the stipulated period due to heavy pendency of cases and also due to pandemic of Covid – 19.

Copy of judgment be supplied to the parties free of cost as per CP Act. Judgment be uploaded on the website of the commission for perusal of the parties.

Order No.  33                        Dated –  20.10.2022

On careful scrutiny of the judgement dated 22.08.2022 passed in this Consumer Complaint that in the cause title the CC No. has been typed as 95/2019 inadvertently instead of 115/2019.  Seen the Consumer Complaint and the Order No. 1 while registration of the Consumer Complaint. 

In view of the above, we are of the opinion that this should be rectified and as such the same is rectified in such a manner that CC No. be read as 115/2019 in the cause title at the first page. 

Parties are to act accordingly.  The decree will be executed henceforth. Let the rectified copy of the judgement be supplied to the parties as per CP regulation.