Judgement MR. SUDIP NIYOGI PRESIDENT FACTS Briefly stated, the case of the complainant is that in order to purchase a residential accommodation in Kolkata, complainant visited the office of the Opposite Party No. 1 and after discussion with their representative decided to purchase the flat/apartment along with car parking space as mentioned in the schedule to the petition of complaint at a consideration of Rs.95,87,729/- and complainant made a payment of Rs.2,00,000/- on 23rd May, 2011. Later, he also made payment of Rs.28,76,191/- as the second, third and fourth installment and then one agreement for sale was executed between the parties on 2nd November, 2011 containing certain terms and conditions. According to the agreement, the project would be completed within 36 months from the date of signing of the agreement and the developer would be entitled to 6 months grace period for completion of the project. Subsequently, on 12/11/2013 Opposite Party No. 1 revised a clause of the said agreement for sale and extended the time limit for completion of the project till 31st March, 2017. Accordingly, the payment schedule was also revised. Thereafter, between 06/01/2014 to 18/10/2014 complainant made payment of sum of Rs.14,48,866/- in favour of the Opposite Parties which were the amount of fifth, sixth and seventh installment of the consideration. But the Opposite Parties failed to complete the project within the time schedule of 31st March, 2017. On being aggrieved, complainant opted for cancellation for agreement for sale. The Opposite Parties also admitted their failure and decided to terminate the said agreement for sale. Opposite Parties also issued a payment schedule in favour of the complainant for refund of the total deposited amount along with simple interest from 23/05/2011 to 05/03/2020 and Opposite Parties agreed to refund Rs.54,54,311/- which the complainant duly acknowledged. Opposite Parties refunded Rs.18,00,000/- in between 13/03/2020 to 21/12/2020 but failed and/or neglected to refund the balance sum of Rs.36,54,311/-. Complainant also issued legal notice through his Lawyer demanding the payment of the said balance amount along with 7 % interest from 1st January, 2021 to till date of payment. Opposite Parties received the said notice but neglected to pay the amount. Complainant alleged deficiency in service and fraudulent act on the part of the Opposite Parties. So, by filing the instant complaint he prays for refund of the said balance amount and also Rs.85,268/- being the amount of interest @ 7 % p.a. He also prays damages for his financial loss and harassment and legal expenses. Opposite Parties No. 2, 4 and 5 did not contest the case by making appearance after service of summons. So, the case was heard ex parte against them. However, Opposite Parties No. 1 and 3 by filing a written version and also evidence and brief notes of argument, contested this case. These Opposite Parties more or less, admitted the contention of the complainant about booking of the flat and payment made towards consideration but denied the allegations as made in the petition of complaint. Therefore, the points for consideration in this case are- - Is the instant complaint is maintainable?
- Is the complainant is entitled to the relief as prayed for?
- To what other relief, if any, is the complainant?
FINDINGS Brief Notes of Argument are also filed by the complainant and the contesting OP Nos.1 & 3. We have gone through the evidence adduced on behalf of both the contesting Opposite Parties, also perused the documents filed by them. Complainant filed several money receipts showing payment made to Opposite Party No. 1 in connection with the flat allotted to him, Letter of Allotment dated 23rd May, 2011 and agreement for sale entered into between the parties. On behalf of Opposite Parties No. 1 and 3, it was argued that the instant complaint is not at all maintainable and bad for non-joinder of necessary parties on the ground that M/s Supernova Private Limited as the vendor was a party to the agreement for sale between the parties. Said vendor was not made a party to the instant proceeding. Further there is no privity of contract between the Opposite Parties No. 2 to 5 and the complainant. The agreement for sale dated 02/11/2011 reveals said M/s. Supernova Private Limited has been shown as the vendor/ 1st part, while Ideal Heights Private Limited is the developer/2nd part and the complainant/purchaser is the 3rd part. The complaint as also the cash memos reveal that payment towards consideration was made by the complainant from time to time to Opposite Party No. 1, the developer. So, non-inclusion of the name of said M/s. Supernova Private Limited in the category of Opposite Party this case cannot make the instant case bad for non-joinder of Opposite Parties. Again, Opposite Parties No. 3 to 5 are said to be the directors of Opposite Party No. 1, company. It is true that a company has its own entity and at the same time, it is also true that the company cannot perform of its act on his own. All the acts of company are performed following decisions of the Board of Directors and their executives. So, the inclusion of Opposite Parties No. 3 to 5 being the Directors of Opposite Party No. 1 cannot also make this suit for mis-joinder of parties. This apart, going through the nature of the complaint and the reliefs sought for we find the instant complaint is quite maintainable. Points No. 2 & 3: From the contention of both the parties, it is admitted that complainant had entered into one agreement for sale with Opposite Party No. 1 for purchasing the flat and car parking space as mentioned in the schedule to the complaint at a consideration of Rs.95,87,300/-. It is also admitted that the complainant made payment from time to time following the schedule of payment. Allotment Letter was issued to the complainant. The project was to be completed within 36 months with a grace period of six months. It is also admitted that by way of a revised agreement, the time for completion was extended and made the limit to 31st March, 2017. We find further admitted fact that the complainant wanted to cancel the said agreement as the flat was not made ready as per schedule. So, he sought for refund of the money and Opposite Parties admittedly agreed to refund Rs.54,54,311/- being the principal sum paid by the complainant along with interest @ 4 % p.a. which was duly acknowledged by the complainant. Following the said proposal, the Opposite Party No. 1 paid Rs.18,00,000/- towards refund to the complainant. So, the balance amount of Rs.36,54,311/- is still to be paid as admitted by both the parties. Now, the complainant prays for refund of this amount along with interest. The Opposite Parties’ contention is that there was delay in completion of the project for various reasons which are under the clause of Force Majeure as pointed out in Point No. 12.1 of the agreement. This apart, the complainant claimed that due to advent and emergence of the Covid-19 and declaration of lockdown, the business of the Opposite Parties got severely affected and that is why, the balance amount could not be refunded. Though they pointed out in the brief notes of argument that the company is taking steps to refund the said balance amount to the complainant in installment but nothing was produced by the parties during hearing to show that the Opposite Parties were willing to pay the balance amount in instalments and the same was communicated to the complainant. In this situation, we think the complainant should get balance amount of Rs.36,54,311/- towards the amount of refund from the Opposite Parties along with interest, otherwise complainant would suffer immensely. We find that complainant prays for interest on the said balance amount @ 7 % p.a. We find that this rate of interest is quite reasonable. Complainant is also found to have prayed for damages and legal expenses etc. However, considering the nature of the case and regard being had to the submissions of both the parties, we are of the opinion that the complainant should get said balance amount of refund along with interest of 9 % p.a. with no separate amount for damages/compensation. This apart, complainant is also entitled to Rs.5000/- towards cost of litigation. With this, all the points are thus, disposed of. Hence, it is ORDERED That the instant case be and the same is allowed on contest against Opposite Parties No. 1 and 3 and ex parte against Opposite Parties No. 2, 4 and 5. Opposite Parties are directed to pay Rs.36,54,311/- Rupees (Thirty-Six Lakhs Fifty-Four Thousand Three Hundred Eleven Only) being the balance amount of refund along with interest @ 9 % p.a. to the complainant within a period of 60 days from the date of this order. Opposite Parties are also directed to pay Rs.5,000/- (Rupees Five Thousand Only) towards cost of litigation. All the Opposite Parties are jointly or severally liable to pay the said amount. If the said above order is not complied with by the Opposite Parties, the complainant shall be at liberty to proceed in accordance with law. Dictated and corrected by me. | 
