SHRI REYAZUDDIN KHAN,MEMBER
This is an application U/s.35 of the Consumer Protection Act, 2019 is at the instance of an intending purchaser against GreenTech IT City Pvt.Ltd on the allegation of deficiency of service in a dispute of flat construction.
The complainant was allured by the advertisement of a residential project namely “Eco Homes”and he made an application for booking of one residential unit with bike parking,club house facilities etc being No.HD-FF-27 on 4th floor in Block No.HD situated at Mouza Uttar Gazipur,P.S-Kashipur,South 24 parganas,Kolkata-700135 against payment of Rs,2,66,575/-( Rupees Two Lakh Sixty Six Thousand five hundred seventy
five)only inclusive of service Tax to the OP1 vide Cheque No.242103 dated 15.08.2015 drawn on Indian Overseas Bank.The OP1 confirmed the said booking by issuing an allotment letter dated 31.10.2015.As per allotment letter the total consideration amount of the flat was fixed Rs,12,03,000/ (Rupees Twelve Lakh three thousand)only plus applicable service tax.Apart from the aforesaid consideration money the complainant have to pay other charges to the tune of Rs,13,800/- and club membership fee Rs,25,000/ plus service tax.OP1 failed and neglected to start the project.The complainant stated that he was compelled to cancel the said booking vide letter dated 20.10.2017 and requested the OP1 to refund the earnest money within 30 days from the date of cancelation of booking.OP1 did not bother to reply to the same.Finding no other alternative,complainant issued an advocate letter on 08.11.2019 upon the OP1 and demanded refund of the said sum of Rs,2,66,575.The acts and conducts of the OP1 clearly establish that the developer is guilty of deficiency in service and unfair trade practice. Finding no other way the complainant has approached the Commission for justice with relief as detailed in the complaint petition.
The OPs have contested the case by filing their Written Version.On behalf of OP1 & OP3 one Mr Uday Modi (OP2),son of Mr.Raj Kishore Modi stated that the consumer case is bad in law also barred by limitation. The complainant is not a consumer within the meaning of Consumer Protection Act,1986. The OPs stated that there has been economic slowdown in overall development in the infrastructure sector which adversely affected the progress of the project.The demonetization, the change in real estate law,and further the Covid-19 Pandemic delayed the project.The change in construction and handing over of the concerned unit has been owing to intervening “Force Majeure” events which was beyond the control of the Opposite parties.There is no deficiency in service and or unfair trade practice on the part of the answering OPs.Therefore,the complaint should be dismissed with cost.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs is deficient in rendering proper service to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainants are entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
Complainant Sayed Abrar Imam,has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by the OPs.
On perusal of the pleadings, evidence led by the parties coupled with the documents annexed therewith, it would reveal that on 17.08.2015 complainant submitted an application for booking of one residential Unit No. “HD-FF-27 on 4th floor in Block No.HD with one bike parking situated at Mouza Uttar Gazipur,P.S-Kashipur,South 24 parganas,Kolkata-700135 against deposit of Rs,2,66,575/-( Rupees Two Lakh Sixty six Thousand five hundred seventy five)only to the OPs.The overwhelming evidences on record further goes to show that the super built-up area of residential unit measuring 460 sq.ft.and the cost of unit and bike parking space Rs,12,03,000/- (Plus service tax as applicable).
It remains undisputed that OP1 issued allotment letter dated 31.10.2015 in respect of Unit No.“HD-FF-27 on 4th floor in Block No.HD situated in “Eco Homes” at Mouza Uttar Gazipur,P.S-Kashipur,South 24 parganas,Kolkata-700135.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 of Rs,2,66,575/-( Rupees Two Lakh Sixty six Thousand five hundred seventy five)only against the subject unit on15.08.2015.
It is true that OP1 failed to construct the “ECO HOMES” project till the date of filling the instant consumer case.It is well settled that after making payment of Rs,2,66,575/ as a advance payment of the consideration amount,the purchaser can not wait indefinitely for having a roof over his head.In the perspective, when the OP1 has failed to complete the project this itself amounts to deficiency in service.
It is admitted fact that no Agreement for sale was executed between the parties of the subject unit.The project was not launched till 2019 though the allotment letter was issued on 31.10.2015.Complainant has lost his faith and patience and cancelled the booking of the subject flat vide letter dated 20.10.2017 with a request to the OP1 to refund the booking money.
No Agreement for sale for the subject unit was executed between the complainant and the OP1.Thus the question of force majeure events does not arise.
The OP1 did not deny regarding issuance of allotment letter on 31.10.2015 and also receiving payment of Rs, 2,66,575/-( Rupees Two Lakh Sixty six Thousand five hundred seventy five)only 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 for construction of flat and OP1 has failed to construct the project and thereby deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
In this regard a Judgement of the Hon’ble Delhi State Consumer Disputes Redressal Commission under reference 2022(2) CPR 137(Del.) in the matter Mrs.Jasveen Kaur v. Parsvnath Developers Ltd., Complaint Case No.1618 of 2016 decided on 05.05.2022 is also found relevant to the present context. The Hon’ble SCDRC has been pleased to observe in Para 34 of the said Judgement “ A failure of the Developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service.”
Keeping in view of the above cited Judgments and based on the fact and circumstances of the present case,we are of the considered opinion that the Complainants have established the case against the OP1.No privity exists between the complainant and the OP2 and OP3.Complainant has no occasion to implead OP2 and OP3 as a party to this case.Thus,instant consumer case against the OP2 and OP3 is dismissed .
In view of above,the complainant is disposed of on contest against the OP1 with the following direction:-
Hence,
Ordered
i).The OP1 is directed to refund the balance booking amount of Rs, 2,66,575/( Rupees Two Lakh Sixty six Thousand five hundred seventy five)only along with compensation in the form of simple interest @9% P.A in favour of the complainant from the date of conciliation of booking( i.e,20.10.2017) till its realization.
ii) The OP1 is directed to make payment of a sum of Rs,10,000/ as cost of litigation in favour of the complainant
Complainant put the order into execution, if the OPs transgresses to comply the order according to Consumer Protection Act, 2019 after the expiry of 60 days.
