FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The fact of the case as per Complainant is that the complainant booked an apartment/flat having a super built up area of 1085 sq.ft along with one covered car parking space lying and situated at Mahishbathan, P. S. – Salt lake electronic Complex, Sector – V, in the District of North 24 Parganasby paying an amount of Rs.3,09,270/- on 17/01/2014 to the OPs and OPs issued an allotment letter whereby Flat No. 10C(2BHK)in Barabet together with one covered basement car parking space bearing No. B-150 was allotted to the complainant at an agreed consideration of Rs.48,93,058/- under Consumer Code No. IAV-45C. Thereafter the Complainant made a diverse payment towards the consideration on 18/02/2014 and 19/02/2014 and an Agreement for Sale was executed between the parties on 31/03/2014. As per Agreement for Sale the first phase of construction of the Blocks C, D and F of the said project would be completed in all respect on or before 30/06/2017 and the second phase of construction of the Blocks A, B and E would be completed on or before 31/12/2017. Clause 9.5 of the said Agreement stated that the completion date may be extended by a period of 12 months. Clause 9.6.2 of the said Agreement stated that a notice for possession would be issued by the OPs whereupon the complainant can take possession of the said property upon compliance of the conditions of the said Clause. Clause 9.8 of the said Agreement provided that the sale of the said property would be completed by execution and registration of a Deed of Conveyance in favour the buyer upon payment in full the agreed consideration amount.Thus the complainant made payment of a sum amounting to Rs.44,03,753/- to the OPs and as such remaining payment of Rs.4,89,304/- was to be paid on the physical hand over of the said flat and car parking space. But the OPs neglected and / or failed to hand over the physical possession of the said flat. Therefore, the complainant by a notice dated 03/10/2020 called upon the OPs expressing her willing to make the payment of the remaining amount to deliver the possession of the said flat and execute a Deed of Conveyance in favour of the complainant and the same was duly received by the OPs on 05/10/2020and 06/10/2020 respectively. Despite receipt of said notice the OPs has not complied with requisition made therein. Hence the complainant has filed this consumer complaint praying for relief/reliefs.

The OPs have contested the case by filing WV wherein they have denied all the allegations made out in the complaint petition. The positive case of the OPs is that for the purpose of developing the property lying and situated in Dag Nos. 490, 489 and 492 in Mouza – Mahishbathan under J. L. No. 18 and in Dag Nos. 852 and 918 in Mouza – Thakdari under J. L. No. 19  both within jurisdiction of P. S. – Salt Lake Electronics Complex within Ward No. 1 of Bidhannagar Municipality, District – North 24 Parganas, the OPs duly applied for obtaining the necessary permission being sanction plan which has duly been issued to them bearing Building Permit No. Z/BM/623 dated 01/11/2013. OPs have also applied for further floors before the concern authorities including before the Airport Authority of India, however the same consumed sometime. Since, permission from the Airport authority could not have been granted, the OPs applied before the Director General of Central Aviation (DGCA, Delhi) and the said permission has been issued on 26/06/2015. The said Building Permit has been modified and the new Building Permit No. is BMC/BPN/A/623(A/12)Rdated 01/11/2017. In or around January 2014 the complainant approached the OPs with an intention of purchasing a flat. The Representative of the OPs duly explained all the details of the subject project and the terms and conditions regarding the sale of subject flat. After being agreed and satisfied with the same the complainant booked a flat being No. 10C on the 10^th Floor measuring super built up area approximately 1085 sq. ft. along with a car parking space in Block named “Barbet” forming part of the Complex named “Ideal Aquaview”, District – North 24 Parganas at the total consideration of Rs.48,93,058/-. Accordingly an allotment letter dated 17/01/2014 was issued in favour of the complainant mentioning the terms and conditions thereof. Thereafter an Agreement for Sale has been executed between the parties on 31/03/2014 containing the terms and conditions of the subject sale. Further it is stated by the OPs that construction of such a large building complex depended on many third party permissions and / or license and as such under the clause Force Majeure “delay on account of receiving statutory permissions” has also been included as one of the circumstances of force majeure. As per Clause 12.3 of the said Agreement the complainant was always vested with the right to cancel the agreement in the event the seller’s fails to comply with terms of the Agreement. The said project has duly been registered under the West Bengal Housing Regulation Act, 2017 (WBHIRA) and completion date for all the block of the subject project registered with the said authority is September 2021, which is accessible to all the customers. At present internal work of the subject block “Barbet” is in progress and is about to be completed soon. Abovementioned circumstances were beyond the control of the OPs for which the subject project was delayed. Presently, the construction of the subject block has duly been completed and internal work is in progress. As such, there is no default on the part of the OPs.

To prove their case both parties have adduced evidence on affidavit. They have also filed questionnaires and replies vis-à-vis relevant documents in support of their respective cases. We have also examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

Fact remains that the Complainant approached the OPs for allotment of Flat by depositing Rs.3,09,270/- and also accepted the terms and conditions. It is also true that the OPs issued allotment letter in respect of Flat No. 10C, on the 10^th Floor measuring super built up area 1084 sq. ft. approx. along with a car parking space in “Barbet” Block of the complex “Ideal Aquaview”, District – North 24 Parganas and an allotment letter dated 17/10/2014 was issued in favour of the complainant. The value of the subject flat was Rs.48,93,058/-. There is also no dispute that OPs failed to complete the construction within stipulated time as per Agreement for Sale.It is also true that complainant has paid Rs.44,03,753/- to the OP1 as part payment against proper documents.

The grievance of the complainant is that in spite of several request and reminders the OPs did not execute and register Deed of Conveyance of the subject flats upon receipt of balance sale price. Except legal notice dated 03/10/2020 no other document is forthcoming on the part of the complainant before the Forum to establish that request and reminders were sent  to the OP-1 in this regard. The OPs denied the grievance of the complainant on the ground that  paragraph 19 of the complaint petition is the evident that complainant never has any intention of purchasing the subject flat for residential purpose and was/is intending to exploit the same commercially for generating monetary gain. It is also submitted by the Ld. Advocate for the OPs that since such big project depends upon taking of  various permissions and statutory approval of the third party, delay caused in construction on account of receiving statutory permission, had duly been mentioned in the Force Majeure Clause.Clause 6.1.1 (c) of the said Agreement for Sale goes to show that:

Above, the Sanctioned Plans have been sanctioned by BidhannagarMunicipality  and other concerned authorities (collectivelySanctioned Authority). In case of additional phases of the project, further building plans shall be got sanctioned for further lands to be comprised in the Said Complex.

And in the Clause 16.1under Force Majeure it is included as No. 14that delay on account of receiving statutory permissions. Further Ld. Advocate for the OPs submitted that as per Clause 12.3 of the said Agreement for Salecomplainant can opted for cancelling the agreement. Material documents is showing that the said flat is in the residential area and as an intended purchaser the complainant bought the same and if the complainant gives it for rent it cannot be come under business . It is also appears to us that the complainant wants to keep the flat as in the prayer portion total refund of the deposited amount of the said flat is not prayed for.

Ld. Advocate for the complainant argued that in the Clause 8.2 of the said Agreement for Saleit is stated that:

The Total Price shall be paid by the Buyer in installments mentioned inPart IIof the6^th Schedulebelow, time being the essence of contract. But at work they did not bother about time. On perusal of the WV filed by the OPs it is found that OPs submitted that:

It is Needless to mention herein that from perusal of the said agreement it would appear that time was never contemplated to be the essence of the said agreement in view of the fact that construction of such a large building complex depend on many third party permissions and / or licenses.

This submission does not seem logical to us as every construction work including this one is a time bound project. If time being the essence in respect of payment by the buyer the same is applicable for the developer in respect of possession of delivery and execution of Deed of Conveyance of the purchased flat. Ld. Advocate for the complainant alleged that   Clause 9.5of the Agreement for Sale stated that:

Ideal shall construct, finish and make theSaid Flathabitable and the Parking Space, if any, usable in accordance with the provision of Clause 9.6.3 below on or before 30^th June, 2017 for Blocks – C,D & F and 31^st December 2017 for Blocks – A,B & E (Completion Date) provided however the Completion Date may be extended by a period of 12 (twelve) months (Extended Period) at the option of Ideal.

In this regard Ld. Advocate for the OPs argued that in the same Clauseit is also mentioned that:

Ideal Shallneither incur any liability nor be held liable for claim of any amount by the buyer, if Ideal is unable to deliver possession of theSaid Flatwithin the Completion Date and/ or the Extended Period dueto Circumstances Of Force Majeure (defined inClause 16.1 below) or for on account of (1) delay on the part of the Buyerin making any payment or complying with any of the buyers obligations recorded in this Agreement and (2) any other reasonable cause wherebyIdealis prevented from Completing theSaid FlatAnd Appurtenancesor any portion thereof. In no event shall theBuyerbe entitled to claim any amount from Ideal on account of consequential losses and damages or

otherwise if the Said Flat And Appurtenances is not completed within the Completion Date and/or the Extended Period.

In this context it is found from the documents on record that Clause 9.6.3.reveals that:

It shall not be obligatory for Ideal to complete the Common Portionsbefore giving the Possession of Notice to the Buyer and the Said Flat and the Parking Space, if any shall be deemed to have been completed in all respect if the same is made fit for habitation and use as per the specifications, the decision of the Architect in this regard being final and binding.It is also mentioned in the said Clause that common portion of the Phase I of the said project shall be completed before the Completion of the Said Complex. Clause 9.8 states that sale of thee Said Flat And Appurtenances shall be completed by execution and registration of a deed of Conveyance in favour of the Buyer provided the Buyer tenders in time all amounts required for the same.

In view of the above facts it is observed by us that in all cases in case of payment on the part of the Buyer it should be paid in time but when it comes to fulfil the obligations on the part of the OPs there are many ways to avoid liability.In judgment beingNo.19 of 2010 Competition Commission of India has observed that all the companies have decided and reserved so many excuses for grabbing the entire amount as non-refundable amount etc. So, sole discretion are of the company but regarding agreement the notable execution is here and there must be proved and if any clauses are there which is abusive one side and shown as dominance of Company in that case such a clause cannot be binding upon the customers because an agreement must be equitable in dealing with both the sides.In the above circumstances, Competition Commission of India rejected all unilateral clauses in the said agreement to sell in between the parties and fact remains by that judgment the agreement of purchase was modified by theCompetition Commission of India on the ground that the agreement form printed by the Company is unilateral one so modified all unilateral clause which has affected the interest of the purchaser and this judgment was also confirmed by the Hon’ble Supreme Court in Appeal. In this regard it is to be mentioned that judgment of Competition Commission of India regarding agreement is binding upon the Fora. Ld. Advocate for the complainant cited the cases of(a)Wing Commander Arifur Khan and Aleya Sultana and Ors. VS. DLF Southern Homes private Limited (Now known as Begur Omr  Homes Private Limited) and Ors(16 Supreme Court Cases 512 : 2020SCC On Line Sc 667and (b) Experion Developers Pvt. Ltd VS. Sushama Ashok Shiroor( 2022 SCC On Line Sc 416 wherein the Hon’ble Supreme Court held the same observations.

Based on the above discussion coupled with pleadings of the parties, evidence and documents on record, we are not inclined to allow any interest and compensation to the complainant for the deposited amount as the complainant prayed for.

In the result, the case succeeds in part.

Hence,

Ordered

That the complaint case be and the same is allowed on contest against the OPs in part.

1. The OPs are jointly and severally directed to deliver the possession of the subject flat and execute and register Deed of Conveyance of the subject flats in favour of the complainant after receiving balance sale price of Rs.4,89,304/- (Rupees Four lacs Eighty Nine thousand Three Hundred and Four).In default, the complainant is at liberty to take recourse of the machinery of this Commission for execution and registration of the Deed of Conveyance.We make it clear that the cost of such registration shall be bore by the complainant.
2. OPs are also jointly and severally directed to pay Rs.20,000/- as litigation cost.
3. Further OPs are jointly and severally directed to pay an amount of Rs.30,000/- as compensation.
4. All these order should be complied within Forty Five (45) days from the date of this order failing which it will carry interest @9% till realization.

Liberty be given to the complainant to put the order in execution, if the OPs transgress to comply the order.