Hon’ble Mr. Ajeya Matilal, Presiding Member

This is a case u/s 17 of the Consumer Protection Act 1986 valued at Rs.82,17,811/-.

The fact of the case is in short like that the Deponent Sourindra Nath Datta is the Complainant No.1 and also the Authorised Signatory/Lawful Attorney of the Complainant  Nos. 2 & 3 namely Mrs. Anima Datta and Mrs. Nandini Ghorai both residing at  76B/1, Beadon Street Kolkata 700006. The Complainant in pursuance of an advertisement published by Green Tech City Pvt. Ltd. i.e. the Opposite Party No.1 applied for a 2 BHK flat along with an open car parking space under the project named “Green Tech City” which has been identified and demarcated as “Smart Home Residency I” at L.R. Plot Nos.91, 97, 102 to 110, 113, 226, 232 to 234, 232/1233, 233/1234, 233/1245 within Mouza Bajetaraf under Rajarhat P.S. In pursuance of a proposal made by the Complainant the OP issued a confirmation letter on 05.06.2013. Thereafter an agreement was executed between the Complainants and Opposite Parties on 04.07.2013 for allotment of an residential unit being No.”03-L2” on 2^nd Floor in Block No.”03” in “Smart  Home Residency I” situated in “Green Tech City” having a total land area of 950 sq. ft. The total consideration money was Rs.26,70,000/- to be paid by the Complainant as mentioned in schedule III of the agreement. A copy of letter dated 05.06.2013 was issued by Opposite Parties and the agreement dated 04.07.2013 was annexed as annexure “C” and “D” respectively. As per the Agreement the Opposite Parties were supposed to hand over the possession of the flat with an open car parking space within 24 months from the date of execution of the agreement with a grace period of six months. The Opposite Parties failed to deliver the possession of the flat within the stipulated period and issued a letter on 29.12.2016 to the Complainants apologising for unwarranted situation faced by the Complainants. The copy of letter is exhibit “E”. Being requested by the Opposite Parties the Complainants entered into a fresh agreement and considering the financial hardship of the Opposite Parties the Complainants entered into a fresh agreement with Opposite Parties on 09.01.2017 and by dint of such agreement the Opposite Parties once again got a fresh tenure of 24 months to hand over the possession of the said flat. The copy of the said agreement is annexed as “F”. Out of total consideration money the Complainant paid Rs.23,64,569/- vide different cheques.   The copy of statement of accounts maintained by the Complainant and money receipts issued by the Opposite Parties are enclosed as Annexure “G”. Subsequently on 13.11.2019 the Complainant through his Advocate served a notice to the Opposite Parties through Speed Post demanding delivery of possession of the flat or returning the amount paid by the Complainant. In spite of receiving the said notice, which would appear from postal receipts and dispatch proof along with the letter as annexure “H” the OPs did not do the needful. So the Complainant filed this case praying for direction upon the Opposite Parties to hand over the possession of the flat with an  alternative prayer for refunding of Rs.23,64,569/- along with an interest 18% per annum on the said amount.  They prayed for compensation for Rs.2 Lakhs, Rs.2 Lakhs for unfair trade practice and Rs.50,000/- for litigation cost.

The Opposite Parties contested the case filing Written Version denying the material allegations of the complaint petition along with the technical pleas. According to them, the infrastructure sector throughout India including West Bengal was going through a very bad period at that time. There was a slowdown in the overall development which adversely affected the progress of the project. The further contention of the Opposite Parties handing over possession of the concerned flat was delayed due to “force majeure” events. So the owner/developer could not be held responsible for delay.

The Complainants filed their evidence on affidavit in chief and they were also cross-examined. The Opposite Parties so filed their evidence in chief. The questionnaire was put to them by the Complainants. But they did not give any reply to such questionnaire.

Now the points for consideration are framed in the following way:

1. Are the Complainants consumers?
2. Whether there is any cause of action in respect of the present complaint?
3. Whether there is any deficiency of service on the part of the Opposite Parties?
4. Whether the project was delayed due to “force majeure” as stated?
5. Whet her the Complainants are entitled to get relief as prayed for?
6. To what other relief/reliefs the Complainants are entitled to?

The decisions with reasons:-

All the points are taken together for convenience.

We perused the agreement dated 04.07.2013 entered into between the parties. It appears from the same that the total consideration money was Rs.26,70,000/-. Out of the same the Complainant paid Rs.23,64,569/- through different cheques and Bank transfer, which would reveal from the statement of accounts, money receipts issued by the Opposite Parties marked as Annexure “G” along with a letter. It appears from the evidence that within the stipulated period the Opposite Parties did not deliver the possession of the same. At the request of the Opposite Parties the Complainant entered into a fresh agreement on 09.01.2017 and as per the said agreement the Opposite Parties got a fresh tenure of 24 month. But in spite of execution of the said agreement the Opposite Parties did not deliver the possession of the same.

It appears that in spite of receiving consideration amount, in part, the Opposite Parties did not perform their legal duties. There is no whisper in the Written Version to the effect that the flat was ready for delivery of possession. Although the Opposite Parties pleaded that the delivery of flat was delayed due to force majeure events, but there is no clause in the agreement regarding force majeure events.

The Advocate for the Complainant referred to a decision of Hon’ble Apex Court in the case of Fortune Infrastructure & Anr. vs. Trevor D’lima (2018) 5 SCC 442: ((2018) 2 CPR 198, wherein the Hon’ble Apex Court   referring to its decision in Balbir Singh Case observed that when a party sustains loss by reason of a breach of contract, the damages are to be granted so as to the place the suffering party in the same position as if the contract had been performed. The Ld. Advocate for the Complainant also referred to the decision of Hon’ble Supreme Court in GDA vs. Balbir Sinch (2004) 5 SCC 65: (2004) 5 Supreme Court 51. It is observed, but in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot, he has been deprived of that flat/plot. So, the compensation in such case necessarily has to be higher.

In 2016 (1) CPR NC 503, the NCDRC has held that “....In event of delay complainants are within their right to ask for refund for refund with interest..”

In Arifur Rahman Khan & Others v. DLF Southern Homes Pvt. Ltd., reported at 2020 (16) SCC 512, Hon’ble Justices Dr. Chandrachud and K.M. Joseph held that:

“...The failure of the Developer to comply with the contractual obligation to provide the flat within the contractually stipulated period, would amount to a deficiency of service. Given the one-sided nature of the Apartment Buyer’s Agreement, the consumer fora had the jurisdiction to award just and reasonable compensation as an incident of the power to direct removal of deficiency in service...”

So, in view of the above observation, we find that the Complainants are consumers, they paid a major portion of consideration money and in spite of getting the money the Opposite Parties did not do the needful. So, there is deficiency in service and the doctrine of force majeure will not come to rescue the Opposite Parties and the Complainants are entitled to get relief.

All the points are decided accordingly in favour of the Complainants.

Hence it is ordered -  

The Consumer Complaint Case being No.CC/974/2019 is allowed on contest against the Opposite Parties with a litigation cost of Rs.30,000/-. The OPs are directed to refund of Rs.23,64,569/- along with a simple interest @9% per annum from the date of last payment with compensation of Rs. One Lakh along with the litigation cost within 90 days from this order failing which the Complainants will be at liberty to put the order into execution.

Let a copy of this order be supplied to the parties free of costs.