MR. SHYAMAL KUMAR GHOSH, MEMBER
The instant consumer case has been filed by the complainant against the opposite parties (OPs) praying for refund amounting to Rs. 67,71,866/- alongwith interest @ 12% p.a., compensation , cost , etc.
The factual matrix of the case is that the complainant being an intended purchaser has approached to the OP /developer for purchasing a flat alongwith car parking space. The fact reveals that the OP No. 1 is a developer and he has taken the responsibility to complete the project under the name and style “Greentech City Duplex Natura”. OP No. 2 is a marketing partner of the OP No. 1. OP No. 3 is a nationalised bank and has provided bank loan to the complainant for purchase of aforesaid flat in question. The complainant has applied for the flat and in terms of the said application /allotment , the apartment being no. DN 20 UD has been allotted in favour of the complainant. The agreement for sale has been executed on 3rd July, 2014. The OP/developer was supposed to deliver the said apartment measuring area about 2326 sq.ft. super built up at a consideration amounting to Rs. 72,10,600/- only . As per demand of the OP/developer, the complainant has paid the consideration amount of Rs. 15,65,087 from this own contribution. As per agreement for sale the aforesaid apartment /flat would be completed within 24 months from the date of allotment. Due to avail financial assistance, the complainant has prayed for housing loan before the concerned bank/OP No. 3 and the aforesaid loan has been sanctioned vide sanctioned letter dated 27.10.2014 Thereafter, complainant, as per request of the OP/developer , has made a payment of Rs. 7,84,565/- only to the OP No. 1/developer from the home-loan fund. It is very astonished that as per promise, the OP No. 1/developer has failed to deliver the aforesaid flat/apartment to the complainant. The OP No. 1/developer has requested the complainant for shifting to the another apartment/flat instead of previous flat as the new flat /apartment would be completed within a short period of time. The agreement for sale, to that effect, has been amended and the same has been executed on 15.09.2016 by and between the complainant and OP No. 1/developer in respect of the new apartment being no. DN 11 UD. As per aforesaid amendment, the bank has also entered into an loan agreement and the sanctioned loan has been shifted to new apartment/flat. Thereafter, the bank i.e. OP No. 3 has disbursed the amount of Rs. 43,85,033/- to the OP No. 1/developer on 07.10.2016. On 08.07.2017, the complainant has come to know from one of the representative i.e. OP No. 2 ( Shri Prodipto Dutta) that the shifted apartment i.e. DN 11 UD was a disputed property as the same has already been allotted to another person who has also availed home-loan from the concerned bank i.e. OP No. 3. In this respect, complainant has sent an e-mail to both OP No. 1 and OP No. 2 but both the OPs remained silent. OP No. 3/bank also remained silent. The complainant has suffered a lot mentally and physically. Complainant has already made the payment of Rs. 15,85,087/- from his own contribution and in total the complainant has paid the consideration amount of Rs. 67,71,866/- to the OP No. 1/developer from availing said home-loan fund . In the meantime , the complainant has paid Rs.16,54, 870/- to the concerned bank towards repayment of home-loan. A complaint has been lodged against the OPs on the above referred issue at the office of the Consumer Affairs Department, Govt. of West Bengal. But , the matter has not been settled . There is a clear gross negligence and deficiency in service on the part of the OP. The subsequent agreement for sale has been executed by and between the parties in the year 2016. The OPs No. 1 & 2 both have failed to provide the possession of the said flat and also to execute and register the deed of conveyance in favour of the complainant causing gross negligence, deficiency in service and unfair trade practice on the part of the OPs 1 & 2 . The project has been totally failed, There was no chance to provide the possession of the flat to the complainant. Having no other alternative ,the complainant has rushed to this Commission and prayed for refund of money alogwith cost and compensation.
The OP No. 1/developer contested this case by filing written version stating inter-alia that the complainant is not a consumer within the meaning of Consumer Protection Act, 1986. This Commission has no jurisdiction to entertain the case. The complainant has failed to make payment within the stipulated period of time causing breach of obligation on the part of the complainant. As per article 4 of the agreement deals with the cancellation clause and as default payment on the part of the complainant , the developer shall be entitled to cancel the agreement. The aforesaid consumer case should be dismissed on the ground of barred by law of limitation The slow down process has adversely affected the progress of the project which was beyond control of the OP No. 1/developer and as such, the construction work has not been completed within the stipulated period of time. By filing written version OP No 1/developer has also raised the ground of force majeure and for that reason the developer/OP No. 1 cannot be held responsible for aforesaid delay. In pursuant to the agreement for sale dated 03.07.2014 there was clause of arbitration and conciliation but instead of availing the said clause the complainant has rushed to this Commission for getting relief. The complainant has purchased the said property for the purpose of resale. So, the investment in respect of the aforesaid flat does not come within the purview of the Consumer Protection Act, 1986. No amount has been received from the end of the complainant for the above reason. So, there is no reason to deliver the possession of the flat. There is no negligence and deficiency in service on the part of OP No. 1/developer and accordingly the OP No. 1/developer has prayed for dismissal of the consumer case with exemplary cost.
OP No. 2 has also contested the instant consumer case by filing written version stating inter alia that OP No. 2 is neither a party to the agreement for sale dated 03.07.2014 nor the agreement dated 15.09.2016 . Therefore, in the light of the fact there is no contract with the concerned company i.e. OP No. 2 herein. The OP No. 2 did not receive any consideration amount from the complainant in respect of aforesaid flat. So, the complainant in this particular point does not come well within the purview of C.P. Act, 1986. Actually, the OP No. 2 is only a facilitator who tries to provide various facilities and to maintain the communication between the developer and the client. There is no such legal relationship of privity of contract between the complainant and OP No. 2 and accordingly, the OP No. 2 has prayed for dismissal of the consumer case with exemplary cost.
OP No. 3 has also contested the instant consumer case by filing written version stating inter alia that the complainant does not and cannot have any cause of action against the OP No. 3. The complainant has availed a loan facilities from the concerned bank amounting to Rs. 60,47,000/- alongwith monthly interest @ 10.25% in respect of flat super built up area of 2326 sq.ft. in the year 2014. Thereafter, the complainant has entered into a fresh tripartite agreement on 15.09.2016 for changing the flat from DN 20 UD to DN 11 UD . The OP No. 3 has sent a mail to the OP No. 1/developer regarding providing loan to another person in respect of the said flat. But till date no clear answer/reply has been given. Since the complainant has not claimed any relief against the answering OP No. 3 so the name of the OP No. 3 should be expunged from the cause title of the aforesaid proceeding. There is no negligence or deficiency in service on the part of the OP No. 3/concerned bank and accordingly the OP No. 3 has also prayed for dismissal of the consumer case with exemplary cost.
We have carefully perused the agreement for sale dated 03.07.2014 wherefrom it appears to us that the complainant has booked one apartment being no. DN 20 UD measuring area (super built up area 2326 sq.ft.) at a total consideration amount of Rs. 72,10,600/-. It is admitted that the said flat has been allotted in favour of the complainant. We have carefully perused the money receipts dated 07.05.2014, 20.05.2014 and 26.05.2014 wherefrom it appears to us that the complainant has paid Rs. 2,57,725/- + 1,000/- + 13,06,362/- respectively i.e. total amount of Rs. 15,65,087/- only to the OP No. 1/ Greentech IT City Pvt. Ltd.
It is admitted that for getting financial assistance, the complainant has taken house building loan from Central Bank of India i.e. OP No. 3 and to that effect we have carefully perused the sanctioned letter for home scheme issued by Central Bank of India i.e. OP NO. 3 herein. The said sanctioned letter clearly reveals that the amount of Rs. 7,47,000/- has been sanctioned in favour of the complainant and his wife . The Bank statement issued by Central Bank of India / OP No. 3 herein clearly reveals that the amount of Rs. 43,85,033/- has been paid to the OP No. 1/developer on 04.10.2016 for the purpose of payment of consideration amount in respect of the flat being No. DN 11 UD. It is admitted that the complainant has entered into a fresh tripartite agreement on 15.09.2016 for changing the flat from DN 20 UD to DN 11 UD.
Now, we have carefully perused two receipts issued by the OP, Greetech IT City Pvt. Ltd. wherefrom it appears to us that the complainant has paid Rs. 6,64,936/- and Rs. 1,56,810/- on 18.12.2014 and on 23.12.2014 respectively to the OP No.1/developer. It is admitted that the complainant has further entered into an agreement for sale dated 15.09.2016 with the developer wherefrom it appears to us that the said agreement has been executed by and between the parties in respect of apartment/ flat being no. DN 11 UD instead of DN 20UD. If we sum up the matter it is revealed that the complainant, in respect of his allotted flat, has paid Rs.15,65,087/- + Rs. 43,85,033/- + Rs. 6,64,936 + Rs.1,56,810/- = Rs.67,71,866/- only to the OP No. 1 /developer and to that effect the OP No. 1/developer has acknowledged the same.
From the above discussion , it is clearly evidence that the complainant comes well within the purview of the definition of the ‘Consumer’ under C.P. Act, 1986.
The OP No. 1 has raised a question whether this Commission has any jurisdiction to entertain the case. From the four corners of the record, it is revealed that the instant consumer case has been filed in the year , 2018. So, the matter should be guided by the provision of Consumer Protection Act, 1986. The bare reading of Section 17(1)(a)(i) of C.P. Act, 1986 clearly reveals that the State Commission shall have ample jurisdiction to entertain the complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs. 20,00,000/- but does not exceed Rs. 1.00 crore.
Upon careful perusal of all relevant documents and papers it is revealed that the instant consumer case has been filed by the complainant against the OPs praying for refund amounting to Rs. 67,71,866/- alongwith interest , compensation and cost which is within the permissible limit of Rs. 1.00 crore. So, there is no hesitation to hold that this Commission has an ample jurisdiction to entertain the instant consumer case.
It is admitted the first agreement has been executed in the year, 2014. Thereafter, the second agreement has also been further executed in the year, 2016 due to non delivery of the flat being no. DN 20 UD. Now, we are in 2023. The flat in question has not yet been delivered to the complainant till date. The mere plea of force majeure and slow down process do not show any cogent and reasonable cause for non-delivery of the flat in favour of the complainant. The plea of arbitration and conciliation has no leg to stand upon as in M/S, National Seeds Corporation Ltd. –VS- M. Madhusudan Reddy and another, reported in ILC-2012-SC-Civil Jan 6, the Hon’ble Supreme Court has been pleased to hold that it is the option of the complainant to approach before the arbitrator or the Consumer Forum for getting his/her proper relief/ reliefs. In the instant case when the complainant has come before this Commission for getting his relief, we cannot simply throw out this case without proper adjudication of the matter. So, from the above observation, it is clear to us that the complainant is entitled to file his case before this Commission rightly.
It is settled principles of law that the complainant cannot be expected to wait for possession of the apartment / flat for indefinite period of time.
In this respect, we can safely rely upon the decision Suniti Kumar Bhat and others Vs Unitech Acacia Projects Pvt Ltd and others reported in 2018(3)CPR 795 (NC) wherein the Hon’ble National Commission held that when the builder fails to construct the flat on time, he is entitled to pay compensation in the form of interest and cost of litigation. In this respect of we can depend upon another remarkable decision FORTUNE INFRASTRUCTURE AND ANOTHER VS TREVOR D’LIMA AND OTHERS REPORTED IN (2018) 5 SCC 442 wherein Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of amount paid by him along with compensation.
Hon’ble National Commission , in Neena Mehrotra and Anr. Vs M/s Unitech Limited, reported in 2017 (3) CPR 376 (NC) has been pleased to pass that in absence of any cogent explanation for failure to comply with stipulation of delivery of possession , opposite party has committed deficiency in service as also has indulged in unfair trade practice. When the OPs are not in a position to offer the possession of the apartment , the said opposite party/company shall refund the amount with simple interest without any further liability and the allottee cannot be expected to wait for possession of the aforesaid apartment for indefinite period of time.
Keeping in view of the above observation and for finality of litigation, there is no bar to hold that there is a clear gross negligence and deficiency in service on the part of OP No. 1/ Greentech IT City Pvt. Ltd. So, the order of refund should be passed against the OP No. 1 /developer.
No order should be passed against the OP No. 2 /India Bulls Distribution Services Ltd. as the OP No. 2 is neither a party to the agreement for sale dated 03.07.2014 nor the agreement dated 15.09.2016. Actually, the OP No. 2 is only a facilitator who used to provide various facilities and to maintain the communication between the developer and client.
No order should be passed against the OP No. 3/Central Bank of India as the concerned Bank has only disbursed the amount of Rs. 60,47,000/- for financial assistance in respect of the purchase of flat being no. DN 11 UD.
The instant consumer case is allowed against the OP No. 1/developer on contest with cost and dismissed the same on contest against the OPs No. 2 & 3 without any order as to costs.
Hence,
It is,
ORDERED
That the OP No. 1/Greentech IT City Pvt. Ltd. is hereby directed to make the refund amounting to Rs. 67,71,866/- (Rupees sixty-seven lakhs seventy-one thousand eight hundred sixty-six) only to the Complainant within 60 (sixty) days from the date of this order alongwith simple interest @ 9% p.a. from the date of each payment (in the form of compensation) till full realisation.
That the OP No. 1 is further directed to pay litigation cost of Rs. 20,000/- (Rupees twenty thousand) only to the complainant within the aforesaid period of time , in default, the said amount shall carry interest @ 9% p.a. till full realisation.
Thus the consumer case stands disposed of as per above observation.
Note accordingly.
