SAMIKSHA BHATTACHARYA, MEMBER
The complainants have filed the instant case under Section 17(1)(a)(i) of the CP Act, 1986, against the OPs alleging deficiency in service.
The facts of the case, in brief, are that the complainants being husband and wife have wanted to purchase a residential plot for their residential accommodation. With such intention, the complainants approached the OP No. 1 who was developing and demarcating the residential plots in the name and style of “Lord City Sonarpur” wherein residential bungalows were to be constructed subsequently by the OP No. 1. OP No. 1 vide their agreement for sale dated 04.08.2014 decided to develop land by the construction of building under the brand name “Lord City Sonarpur” with several hundred bighas of land lying and situated within P.S. Sonarpur, District 24 Parganas (South). The complainants were agreed to purchase one residential plot in such project measuring 4 cottahs at the rate of 2.5 lakh per cottah including cost of filling the land and other incidental expenses. The complainants were also agreed to pay further consideration for construction of residential building to be constructed over the plot. Accordingly, a plot measuring 4 cottahs of land more or less being Unit No. B-73 within Zone- 9 comprised in Dag No. 302, JL No. 108, within Mouja:- Sangur, P.S. Sonarpur, District South 24 Parnagas, was allotted to the complainants. The complainants duly paid the booking amount of Rs.2,00,000/- to the OP No. 1 and agreed to pay balance amount of Rs.8,00,000/- within 12 equal installments of Rs.66667/- per month. The complainants made the subsequent payment as per stipulation and paid a total consideration of Rs.10,00,000/- and the lest payment was made on 04.05.2015. But the OP failed and neglected to develop the plot in question. They neither offer the possession nor executed the registered deed of conveyance and mutated the plot in spite of receiving full and final payment from the complainants. Therefore, the complainants have stated in their petition that there is severe deficiency in service on the part of the OP No. 1.
Complainants demanded a refund of Rs.10,00,000/- by their letter dated 16.05.2018. The OP No. 1 agreed to refund of Rs.10,00,000/- to the complainants without deducting any cancellation charge by 31.08.2018 and it was intimated through their letter dated 31.05.2018. Then the OP handed over an A/c payee cheque dated 31.08.2015 for a sum of Rs.10,00,000/- in favour of the complainant No. 1.
Upon receipt of the aforesaid cheque, the complainants duly presented the same before the bank and the cheque was dishonoured by the Standard Chartered Bank/OP No. 2 due to insufficient fund. The complainants have further stated that there is deficiency in service on the part of the OP No. 1 is apparent on the face of the record and the complainants have suffered loss and damages due to such deficiency in service on the part of the OP No. 1. The complainants No. 1 is suffering from serious physical ailments and is unable to bear the mental pain and physical harassment of visiting the office of the OP No. 1 repeatedly pursuing his legitimate demand. Hence, the complainants filed the instant case praying for compensation of Rs.20,50,000/- within 30 days from the date of final order.
Though the notice was served upon the OP No. 1, but none appeared before this Commission to contest this case by filing written version. Hence, the case was proceeded ex parte against OP No. 1.
OP No. 2, being proforma OP, filed their written version. In their written version, they have prayed for dismissal of the complaint case, against them on the ground that the complainant is not a consumer of this OP within the meaning of CP Act, 1986. Moreover, no allegation whatsoever, were made against OP No. 2. No relief has been sought against the OP No. 2. OP No. 2 has provided its service with utmost diligence and there is no deficiency on the part of OP No. 2. The OP No. 1 is maintaining an account bearing No. 32405078831 with the OP No. 2. OP No. 1 through the OP No. 2 issued a cheque bearing No. 002021 dated 31.08.2018 for an amount of Rs.10,00,000/- in favour of Complainant No. 1 and the cheque was dishonored due to insufficient fund. The OP No. 2 is in no manner responsible/liable for the dishonor of the cheque. No cause of action ever arose against the OP No. 2. Therefore, OP No. 2 has prayed for dismissal of the complaint against OP No. 2 with exemplary cost.
In course of argument, Ld. Advocate for the complainants has submitted that as per agreement for sale dated 04.08.2014, the complainants entered into an agreement with the OP No. 1 for purchasing a plot measuring 4 cottahs (2880 sq. ft.) more or less having a Unit No. B-73 within Zone No. 9 comprised in Dag No. 302, JL No. 108, within Mouja:- Sangur, P.S. Sonarpur, District South 24 Parganas.
As per agreement, the complainants paid Rs.2,00,000/- as booking amount. Thereafter, the complainants paid Rs.8,00,000/- by installments. When the OP No. 1 failed to develop the land, the complainants prayed for refund and accordingly the OP No. 1 issued a cheque amount of Rs.10,00,000/- but the said cheque was dishonoured. Hence, the Ld. Advocate for the complainants has prayed for order upon OP No. 1 to refund Rs.10,00,000/- along with compensation and litigation cost.
On the date of final hearing, none appeared on behalf of the OP No. 1. Ld. Advocate for the OP No. 2 has submitted that the complainants have no allegation against the OP No. 2. The only reason the complainants have made the OP No. 2 as a party since the OP No. 1 is maintaining an account with the OP No. 2 bank. It is admitted by OP No. 2 that OP No. 1 issued a cheque for refund of Rs.10,00,000/- to the complainants but the cheque was dishonoured due to insufficient fund.
Upon hearing the parties, the Ld. Advocates appearing for the complainants and the OP No. 2 and on perusal of entire materials on record there is no dispute that the complainants entered into the agreement for sale with the OP No. 1 on 04.08.2014 for purchasing 4 cottahs of land in Zone-9 being Unit No. B-73 to be developed by OP No. 1. It was specifically written in the agreement for sale that the Developer i.e., OP No. 1 has agreed to sell the land @ Rs.2,50,000/- per cottah, including cost of filling the land and other incidental expenses in connection thereof free from all encumbrances whatsoever and further consideration for construction of building over the said Unit and such construction shall be executed by the other reputable and experienced Firm or Company fully conversant with such jobs to be selected by the Developer which is accepted by the purchasers (running page 2 of the agreement for sale dated 04.08.2014.
Therefore, as per terms and conditions, complainants paid Rs.10,00,000/- in total. The complainants have annexed customer ledger issued by OP No. 1 wherefrom it reveals that complainants have paid Rs.66666/- on 05.09.2014, Rs.66669/- on 01.10.2014, Rs.66666/- on 07.11.2014, Rs.66666/- on 03.12.2014 and Rs.66669/- on 05.01.2015 through NEFT. From the customer ledger, it is crystal clear that net amount paid Rs.10,00,000/- by the complainants. As per Clause 6 of General Terms and Conditions of the agreement for sale, the unit shall be completed within 48 months from the date of commencement of construction of the building unless such construction is stopped by the reasons beyond the control of the Firm or Company selected by the developer. The Clause 6 (i) of the General Terms and Conditions is reproduced as under:
Date of delivery of units in Zone-9
- Subject to making timely payment of dues and observing the terms and conditions herein by the Allottee his Unit shall be completed within 48 (fort-eight) months from the date of commencement of construction of the building unless such construction is stopped by reasons beyond the control of the Firm or Company selected by the Developer as aforesaid and subject to Force Majeure reason namely flood, earthquake, tempest, mob violence, civil unrest, air-raid, lock-out, labour dispute, shortage of materials, Government restriction and all other reasons or act of God over which the said Firm or Company has got no control. In case of delay in delivering possession, the said Firm or Company shall be allowed a grace period 6 (six) months and in case of failure on the part of the said Firm or Company to construct the said Unit even within such grace period then the only in such event the Developer shall pay compensation at the rate of eight per cent per annum on the amount paid against construction of building comprised in the Unit of the Allottee for the period of delay beyond the grace period provided that the Developer/the said Firm or Company shall not be liable for delay occasioned due to Force Majeure and other reasons as elsewhere herein stated nor shall be liable in case the Allottee defaults in compliance of its obligations herein contained (including default or delay in payment of the consideration and other amounts payable hereunder and/or in terms of the document of allotment of the Allottee.
The agreement for sale was executed and signed on 04.08.2014. The stipulated period of time of four years has been elapsed on 03.08.2018 without the grace period and it has been elapsed on 03.02.2019 including the grace period. After elapsing four years, OP No. 1 company neither informed the complainants about the whereabouts of the project nor intimated the complainants what prevented them to complete the project within the stipulated period which is beyond their control. No single scrap of paper has been sent by the OP No. 1 company that due to some force majeure clause they were prevented to construct the building within the stipulated period of time. The payment was made by the complainants in between 05.09.2014 to 05.01.2015. After receiving the last installment on 05.01.2015, the OP No. 1 company did not send a single scrap of paper informing the commencement of construction of the building. The agreement for sale is a bilateral agreement and it is the bounden duty of the developer to complete the project within the stipulated time and to inform the complainants within the time if the construction has not been completed for the reasons beyond control of the company. Time is the essence of contract but in the instant case, the OP No. 1 has not bothered to inform about the project rather it has kept itself mum over the issue. When the complainants sent a letter dated 16.05.2018 requesting the OP No. 1 to cancel the allotment of the said land/property on the grounds of failure of completing the process of registration of land/property with specific/defined physical demarcation of the land/property. Then the OP No. 1, replied the complainants by their letter dated 31.05.2018 informing that they accepted the proposal of the complainants regarding the refund of full amount of Rs.10,00,000/- and without deduction on cancellation. Then the OP no. 1 issued a cheque on 03.08.2018 drawn on Standard Chartered Bank but unfortunately the cheque was dishonoured. Therefore, there is no dispute that OP No. 1 has agreed to refund the amount but ultimately they did not refund. Moreover, they have opined in their letter dated 31.05.2018 that they would not deduct any cancellation charge. But it is also the deficiency in service on the part of the OP No. 1 that they have opined not to deduct any cancellation charge where no question of deduction of any cancellation charge actually does ` arise. The OP No. 1 has failed to show any document which can suggest that the construction work is going on and the project has been delayed due to reasons which are beyond their control. The complainants wanted to cancel the booking since no progress was seen in the project after elapsing approximately four years of commencement of the agreement for sale and finding no other alternative, complainants have prayed for cancellation and no refund. The OP No. 1 was willing to refund the full amount to the complainants, so it is proved that the OP No. 1 has failed to develop the plot in question and to deliver the possession of the plot to the complainants. In the facts and circumstances and on perusal of materials on record, more particularly, relying upon evidence on affidavit filed by the complainants, it is palpably clear that the OP No. 1 has not followed the terms and conditions of the agreement for sale and has not kept their promise and as such they are deficient in rendering service towards the complainant/consumers.
In this connection, we can rely upon the judgment passed in 2016 CPJ 328 (NC) where the Hon’ble National Commission held that:
“Para 9. As far as the allottees in tower E & F are concerned, they have already sought refund as an alternative relief, along with compensation under several heads. Therefore, we have no hesitation in holding that in the facts and circumstances of the case the allottees in both the complaints are entitled to refund of the money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them. They are also entitled to appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the opposite party to deliver possession of the flats booked by them. In this regard, it is to be kept in mind that a person books a residential flat for the purpose of having a roof over his head, and in the hope that on completion of the construction within the time promised by the builder he will be able to live in a house of his own. Therefore, he is bound to feel disappointed and frustrated when the builder does not deliver upon its promise for years together.”
We can also rely upon the judgment reported in 2016 (3) CPR 279 (NC) where the Hon’ble National Commission held that:
“Para 10. Since the opposite party has failed to offer possession of the flat agreed to be sold to the complainants by the date stipulated in the Buyers Agreement in this regard and 5/6 years have already expired from the said committed date for delivery of possession. The complainants cannot be compelled to wait any more for the builder to deliver and they are entitled to seek refund of the money paid by them along with appropriate compensation.”
The Ld. Counsel for the OP No. 1 has submitted with all fairness that they have received the amount of Rs.10,00,000/- from the complainants for the project in question as per Agreement dated 04.08.2014.
We find no deficiency in service on the part of OP No. 2 and as such the case is liable to be dismissed against OP No. 2.
Relying upon the above judgments and upon observation as discussed earlier we think that complainants cannot wait for indefinite period. Accordingly, they have prayed for cancellation of the land in question and prayed for refund. The OP No. 1/company was agreed to refund but ultimately they failed. Therefore, the complainants have substantiated their case and as such they are entitled to get relief.
Consequently, the complaint case succeeds.
Hence,
it is
O R D E R E D
The Complaint Case be and the same is allowed ex parte against OP No. 1 with cost and dismissed against OP No. 2 on contest without cost.
The OP No. 1 is directed to refund Rs.10,00,000/- (Rupees ten lakh) only to the complainants along with compensation in the form of simple interest @ 8% p.a. with effect from the date of each payment till full realization.
OP No. 1 is also directed to pay litigation cost of Rs.15,000/-(Rupees Fifteen thousand) only to the complainants.
The payment in terms of this order shall be made within 60 (sixty) days from the date of passing of this order.
If the OP No. 1 fails to comply with the direction made above with the period mentioned above, then the complainants are at liberty to get the order implemented with due course of law.
The complaint case is disposed of accordingly.
