FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is an application U/s.35 of the C.P. Act, 2019.

The fact of the case in brief is that the above mentioned Complainants being interested in the project of Ideal Greens  of the OPs at Premises No. 591A, Moti Lal Gupta Road, Kolkata-700008 applied for booking of one flat being No. 11H, (3BHK), on 11^th floor, block/tower, ‘ACACIA’ measuring about 1400 sq. ft. super built up area along with one open car parking space. Accordingly, the said flat was booked in favour of them by issuing  the allotment letter dated 18.03.2019. and afterwards Agreement for Sale dated 16.05.2019 was executed by and between the complainants and the OP-1 at a consideration price of  Rs. 65,94,000/- excluding GST and other charges and a booking amount of Rs. 7,38,528/- was accordingly paid to the OP-1. The Complainants were assured of possession of the subject flat by March, 2021. Subsequently, in terms of the said agreement and as per demand of OP-1 further payment of Rs. 6,92,370/- was made to the OP-1 on 27.06.2019. It is also submitted by the complainants that a home loan of Rs. 57,07,462/- was sanctioned to them  from State Bank of India, Behala Branch and the aforesaid amount of Rs. 6,92,370/- was paid to the OP-1 towards part consideration from the home loan account of the  said SBI branch. There was no communication from the OPs since the date of subsequent payment i.e. 27.06.2019. Even, no construction of work of the said project has been started. On enquiry, it is told by the OPs that the project will be completed within the stipulated period as promised. But the fact is, the OP-1 has not laid the foundation of the said tower ‘ACACIA’. It is under stood by the petitioners that the OPs have no intention of carrying out the construction of the said project in spite of accepting the sum of Rs. 14,30,898/- for the subject flat. It is also understood by the complainants that similar incident has taken place from the several buyers from the said project. It is also mentioned that the complainants were asked to take flat at some other project of the OP-1 which indicates no possibility of construction of the subject project in near future. This is absolutely a deficiency in service and unfair trade practice on the part of the OPs. Considering the conduct of the OPs the complainants sent legal notice dated 20.10.2020 asking them to cancel the said agreement for sale and to refund the sum of Rs.  14,30,898/-  already paid to the OPs within 07 days from the date of receipt of the notice. The notice was received by the OPs on  22.10.2020 but the OPs have failed and neglected to return the aforesaid amount.

Thus, the OPs have not discharged their obligations and misappropriated money of the complainants for their wrongful gain. Such acts and omissions of the OPs tantamount to unfair trade practice as well as cheating and fraud and for the misdeeds of the OPs the complainants have to bear the interests to the tune of Rs.38,074/- for the aforesaid Home Loan. Finding no other way the complainants have approached the Commission for justice with relief as detailed in the complaint petition.

The OPs have contested the case by filing their Written Version contending inter alia that the complaint is not maintainable either in law or on fact. The complaint is a premature one since the project is to be made ready for handing over possession by September, 2022 for which the complaint petition is liable to be dismissed. The OPs submit that the subject project is registered with the West Bengal Housing Industry Regulatory Authority and completion date is already updated with the said authority which is accessible to all the customers. After obtaining the sanctioned plan from the authority and other sanctions the work has been started but due to Covid 19 and consequent lockdown the work has been severely affected and stalled and in view of that the WB Housing Industry Regulatory Authority vide order dated 29.05.2020  has extended  the completion date of the said project. The revised completion date is duly updated  and accessible to the website of WBHIRA. The delay is due to the reason mentioned above and the OP has no control over the same. The status of the project has been duly informed to the complainants.  The OPs strongly denied the allegation that the project has not been started for which they have asked the complainants to prove the same. It is also submitted by the OPs that the complainants were offered to take flat at different project which they have not accepted. The OPs have further stated that under clause No.  7.5 of the said agreement, the parties have agreed that “provided that where the allottee  proposes the cancel/withdraw from the project without any default of the promoter under this agreement, the promoter herein is entitled to forfeit the booking amount paid for the allotment”. The OPs have denied all the allegations leveled  against them for the situation which are absolutely beyond their  control and for that reason  there is no deficiency in service and unfair trade practice on the part of the OPs.

Points for Determination

In the light of the above pleadings, the following  points necessarily have come up for determination.

1)  Whether the OPs are 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.

            We have travelled over the documents placed on record. Both parties have submitted their evidence on affidavit. Reply to the questionnaire set forth by their adversaries have also been filed.   Both parties have submitted their BNAs.

While perusing the records, it is observed that the Complainants have entered into agreement for sale with the OP 1 on 16.05.2019 for purchasing the subject flat at a total consideration price of Rs. 65,94,000/- excluding GST and other charges. The subject flat is scheduled to be handed over by March,  2021 as per the said agreement. Out of the total consideration price as mentioned above the Complainants have paid a sum of Rs. 14,30,898/- as on 27.06.2019 out of which Rs.6,92,370/- has been paid from the home loan account sanctioned by the  State Bank of India, Behala Branch. From the facts and circumstances of the case, it is established that the OPs have not been able to hand over possession of the subject flat to the complainants within the stipulated period as mentioned in the sale agreement dated 16.05.2019. The delay of handing over possession of the subject flat is also established from their offering of another flat at different project in lieu of the subject flat which has not been accepted by the complainants. The said fact of delay has been admitted by the OPs in their submission on various documents. The OPs have repeatedly reiterated that the delay caused in this regard  is due to emergence of covid-19 situation and subsequent lock down declared by both the Central and the State Government and the situation went beyond their control. But while traveling over the replies of the OPs to the questionnaire   of the complainant under serial No. 4, 5 and 6 we observe the following.

Question No. 4:  When was construction of the project started ?”

Question No. 5: Do your company have any certificate from concerned authority regarding commencement of said project and extent of construction?

  Question No. 6: Can you say what is the present status of construction of the said project is and what is the expected date of completion of construction?

Replies :  In reply to question No. 4 to 6 I say that the OPs duly obtained the approved sanctioned plan from the Municipal Corporation on 03.09.2014 and have also obtained several other permissions etc. After permission and sanction the OPs duly started the construction of the subject project on  09.09.2014. I repeat that due to advent of covid-19 and lock down declared by the Government in March, 2020, the construction of the subject project got severely affected. I further submit that as present the subject project has been completed upto June,  2025.

From the above replies, we are not in a position to ascertain the present status of the construction. Moreover,  the  date of sanction of the plan of the project has not been supported by any document and it has been admitted by the OPs that the flat/project cannot be handed over within the stipulated period of March,  2021. They have clearly admitted that the project will be completed in June,  2025.

We are very much astonished to observe that the plan was allegedly  sanctioned on 03.09.2014 and the construction work is hampered  for the pandemic  situation  of Covid-19 in the year 2019. There is no specific reply of the present status of construction even after lapse of 07 years as on the date of filing the complaint. No document from  any authority has been furnished to justify the inordinate delay in that respect. 

Now let us come to the Question No. 12: When did the construction of the said project resume after lock down period?

In reply to Question No. 12: I say that on  10.09.2020 we  have offered flat in another block in same project.

 From the said reply it is quite evident that the OPs have willfully avoided the specific question of commencing the work after lock down period. This reply actually conclude that the OPs have not been able to substantiate that the construction work of the said project has already been started. Accordingly, this is well established that the OPs have failed to perform their duties and responsibilities as per the sale agreement dated  16.05.2019 in respect of handing over the subject flat to the complainants. The complainants being the flat purchasers cannot be made to wait for indefinite period which definitely tantamount to deficiency in service   and unfair trade practice on the part of the OPs.

 The Ld. Advocate of the complainants has cited the judgment of the Hon’ble Supreme Court vide (2019) 5 Supreme Court  cases  725 in the matter of Pioneer Urban Land and Infrastructure Ltd. vs. Gobindanan Raghavan under the Civil Appeal No. 12238/2018 where the Hon’ble Court has observed that “ the inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. in Fortune Infrastructure vs. Travor D’ Lima, this 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 the amount paid by him along with compensation.

The respondent flat purchaser had made out a clear case of deficiency in service on the part of the appellant builder. The respondent flat purchaser was justified in terminating the apartment buyers agreement by filing the consumer complaint and cannot be compelled to accept the possession whenever it is offered by the builder. The respondent purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation”. 

Now the question which arises for our consideration is how much interest/compensation is to be paid to the Complainants on the amount deposited by him with the Developer.

 Though, it is the complainant’s case that in the event of failure on the part of the Developer to handover the possession of the allotted flat and parking space within the stipulated period, there is no mention of payment of compensation in the form of interest specifically but having regard to the fact that the Banks have lowered the interest rate and the Hon’ble Supreme Court has been awarding interest keeping in view of the current market situation and the recent decline in the cost of borrowing and return on the investment made with the Banks, we are of the opinion that simple interest  at the rate of 7  percent p.a. would be met for the ends of justice.

In this regard another 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.”

The learned Advocate for the OPs has cited one Judgement of the Hon’ble NCDRC vide Revision Petition No 2548 of 2019 in the matter of Mange Ram v. Logix InfraBuild Pvt. Ltd. , date of Order : 18.06.2020 where the Hon’ble NCDRC has observed that Hon’ble DCDRC awarded sufficient interest @ 10% on the deposited amount for which separate compensation is not necessary. But here in this case  the interest awarded is much less than 10% and the same is not sufficient but appropriate only in terms of interest generally charged by the Housing Loan Companies to their borrowers  for which the said judgement is not found applicable here.

Keeping in view of the above cited Judgements 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 OPs. All the points under determination are answered accordingly.

In the result, the Consumer Complaint succeeds .

Hence,

Ordered

That the Complaint Case be and the same is allowed on contest against the OPs  with the following directions:-

1. The OPs are directed to refund  the sum of Rs.14,30,898/-  to the complainants with interest @ 7% calculated from the date on which each installment/payment was received by the OPs till 21.09.2022 ( being the date of the present Judgement).
2. The rate of interest payable as per Order No. 01 is subject to the condition that the OPs pay the entire amount on or before 21.11.2022.
3. Being guided by the principles as discussed above, in case the OPs fail to refund the amount as per the aforesaid order on or before 21.11.2022 the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment /payment was received by the OPs till the actual realization of the amount.
4.  The OPs are further directed to pay Rs.40,000/-  to the complainants  as compensation  for causing harassment and mental agony to the complainants.
5. The OPs are also directed to pay Rs.20,000/- to the complainant as litigation costs.

The above orders are to be complied within the specified time limit as mentioned above i.e. on or before21.11.2022.

In the event of non compliance of the order, liberty be given to the Complainants to put the order into execution U/ss 71 & 72 of the C.P. Act,2019.

The judgment be uploaded to the website of the Commission forthwith for perusal of the parties. Copy of the Judgement be supplied to the parties free of cost as per the C.P. Act.