FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the complainants, in brief, is that on 12/08/2016, complainants executed an Agreement for Sale for a residential unit at “Eco Homes” comprised in block No.HC being unit No.HC-T-11 on the 3rdfloor by paying Rs.3,30,372/- vide cheque No. 967280 dated 01/01/2016 for Rs.1,000,00/- and cheuqe No. 967281 dated 02/12/2015 for Rs.2,30,372/- d OP issued money receipts against such payments . As per Clause 9(i) of the Agreement for Sale the OP endeavors to complete the construction of the aforesaid schedule – II- Unit and will hand over the possession thereof to the complainant within 30 months from the effective date. After execution the agreement for Sale and payments the complainant noticed that the OP intentionally delay to start the construction work and thus 2 years elapsed. When the complainants visited the office of the OP on January 2018 assurance was given by the OP that the work will start within 2 to 3 months and in the month of February 2019 the flat will be delivered. But by then being frustrated, on 21/01/2018 complainant requested the OPvide mail to cancel the Agreement for Sale dated 12/08/2016refund their money. But the OP did not reply the said mail. Thereafter the complainant again send a notice through mail to the OP for cancellation of sale agreement and refund of deposited money. As the OP remain unturned the complainant has compelled to send a demand notice on 11/10/2018 for the Cancellation of the agreement for Sale dated 12/08/2016 and also for the refund the deposited amount. In spite of receiving the same the OP did not move. Till date the complainant neither got theflat nor got the refund of deposited money. Finding no other alternative complainant has filed the instant consumer complaint for getting reliefs.
OP contested 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 resale 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 and developer cannot be held responsible for such delay. OP denied that there was any verbal communication between the parties and the OP has assured the complainant to deliver the said flat in the month of February 2019. Moreover demand made by the complainant was unacceptable as the complainant is liable to pay the cancellation charge as mentioned in the article 4 of the Agreement for Sale which is around Rs.2,50,000/- . Therefore, 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.
Both parties have tendered evidence supported by affidavit. The complainant replied to the questionnaire set forth by their adversaries. But OP have failed to reply to the questionnaire of the complainant after getting several chances.
It is admitted fact that the complainant executed an Agreement for Sale on 12/08/2016 for hiring Housing Construction service from the OP for one residential apartment being Unit No.HC-T-11 on the 3rd floor in Block-HC situated in the ECO Homesby paying Rs.3,30,372/-out of total consideration amount of Rs.13,96,000/-vide cheque No.967280 dated 01/01/2016 of Rs.1,00,000/- and cheque No.967281 dated 10/11/2015 for Rs.2,30,372/-drawn on State Bank of India. Documents furnished by the complainants supported the averments made out in the complaint petition.
It has been argued by the Ld. Advocate for the complainants that after execution of sale agreement and payments OP did not start the said project work although it is clearly mentioned in the Article 9(i) of the Agreement for Sale that the possession of the said flat will be delivered within 30 months from the effective dates. But after passing of 2 years no construction work has been started in the said project. Photocopies of the E-Mails showing that the complainant requested the OP through e-mailsdated 15/01/2018, 07/08/2018 and 22/08/2018 to cancel the booking and provide full refund as early as possible. Photocopy of the Legal Notice dated 11/10/2018 goes to show that the complainant made the abovementioneddemand to the OP. It is noted that after receiving the mails and legal notice OP did not bother to reply the same by revealing any clear and transparent information about the booked flat. We think it is deficiency in service on the part of the OP. 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, photocopy of several e-mails sent by the complainant to the OP show that complainant requested the OP to cancel the agreement and refund the booking money i.e. Rs.3,30,372/- stating the reason that since the booking was made long back but the OP did not start the construction work of the said flat for which the prayer for refund. In our view, there is justification in such submission from the side of the complainants.
Controverting the allegation made by the complainants, 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 purpose of resale. We do not find any logic in such submission.
We have travelled through the documents on record and found that complainants booked a flat in the said residential project of the OP against Rs.3,30,372/-. We do not find any piece of document where from it would prove that complainants are not consumer under the OP. No such document has been found in the record wherefrom it can be established that OP has started the construction work of the subject flat after receiving booking money. Thus, this gesture of the OP can be termed as unfair trade practice.
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 handover the subject the subject flat in favour of the complainant within the stipulated period and failure on the part of OP to handover the subject flat within the stipulated period amounts to deficiency in services on the part of the OP.
Further Ld. Advocate for the OP submitted that as per Article 4 (vi) of the Agreement for Sale the complainant is liable to pay the Cancellation Charge which is around Rs.2,50,000/-. In this regard we are opined that, the complainant cannot made to wait indefinitely for possession of the flat, when there is absolutely no response from the OP.
In the result, the consumer complaint is allowed on contest in partagainst the OP with a direction to them to refund the principal amount i.e. Rs.3,30,372/- with simple interest@ 8%p.a. from the respective dates of payment is made, together with litigation cost of Rs.10,000/-. This amount to be paidby theOPto theComplainantwithin 45 days from the date of this order, failing which, the amount shall attract interest @12% p.a. for the same period.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
