SRI SHYAMAL KUMAR GHOSH, MEMBER
The instant consumer case has been filed by the complainants against the opposite parties stating inter alia that there is gross negligence and deficiency in service on the part of the opposite parties and to that effect the complainants has prayed for certain relief/reliefs clearly enumerated in their petition of complaint.
The brief fact of the case is that the complainants have intended to purchase one self contained flat along with a car parking space in and around the area of Jadavpur, Kolkata. The opposite party no – 1, being a developer has offered to sell one flat situated at 3rd floor, back side, South-East portion measuring about 1600 sft super built up along with two car parking space being nos 3 and 4 on the ground floor (road facing ) measuring area 240 sft within the jurisdiction of Jadavpur Police Station, Kolkata – 700032 with a total consideration amount of Rs.80,00,000/- to be paid to the op no – 1/developer. It is stated that the opposite parties 2 to 5 are recognized as the land owners of the property.
Thereafter, the complainants have executed one agreement for sale in respect of the aforementioned flat in question with the opposite party no – 1/developer on 26/04/2017. The complainants have already paid the consideration amount of Rs.66,00,000/- by various instalments to the opposite party no – 1/developer.
The developer has failed to complete the project work within the stipulated period of time. The ops/developer has always tried to disobey the terms and conditions of the aforesaid agreement for sale. The op/developer has failed to execute and register the deed of conveyance in favour of the complainants till date. On several occasions the complainants have requested the op/developer to complete the aforesaid project and to execute and register the flat in question forthwith but the opposite party no – 1/developer has avoided and neglected the complainants on different pretext.
The project work would certainly be completed within time and the developer shall have the bounded duty to deliver the flat question to the complainants within the month of June 2018 including the grace period. The execution and registration of the deed of conveyance is still pending. No possession has been given to the complainants till date though the developer has received lion’s share of consideration amount from the complainants.
The fact reveals that there is gross negligence and deficiency in service on the part of the opposite party/developer. The complainants have been suffering from irreparable loss and injury due to disobeying the terms and conditions of the aforesaid agreement for sale from the end of the opposite party/developer. Having no other alternative the complainants have knocked at the door of the Commission for getting proper reliefs as prayed for.
No written version has been filed despite serving the notice upon the opposite parties. Ultimately the case has been fixed for ex parte against all the opposite parties.
Ld advocate appearing for the complainants, at the time of final hearing, has argued that an agreement for sale dated 26th April 2017 has been executed by the parties in respect of the flat along with car parking space. The total consideration amount has been fixed at Rs.80,00,000/- and to that effect the complainants have already paid Rs.66,00,000/- to the op no-1/developer. The ld advocate has also argued that despite receiving the lion’s share of the consideration amount from the complainants, the op/developer has failed to execute and register the deed of conveyance in respect of aforesaid flat in question along with car parking space in favour of the complainants till date. On several occasions the complainants have requested the op/developer to complete the flat in all respect, to provide vacant possession of the same and to execute and register the deed of conveyance in respect of flat along with car parking space in favour of the complainants. But the op/developer has failed to perform his duties properly causing clear gross negligence and deficiency in service on the part of the opposite party/developer. Accordingly, the ld advocate has prayed for necessary order/orders so that the complainants are entitled to get proper reliefs as prayed for against the opposite parties.
We have heard the ld advocate appearing for the complainants at length and in full.
We have considered the submissions of the ld advocate.
We have perused the materials available on the record.
The final hearing has been concluded.
It is admitted that the agreement for sale in respect of subject flat has been executed between the parties to the case on 26/04/2017 wherefrom it appears to us that the purchasers/complainants have intended to purchase one self contained flat measuring super built up area 1600 sft along with two car parking space measuring area 240 sft. The total consideration amount has been fixed at Rs.70,00,000/- to that effectg. The op/developer has promised to complete the construction of the said flat and car parking space in all respect and to deliver the same to the complainants/purchasers within the month of April 2018 from the date of executing of the said agreement dated 26/04/2017 with all fittings and fixtures/arrangements with good standard quality. The said agreement also reveals that if the op/developer would fail to deliver the possession within 30/04/2018, in that event, the op/developer would be entitled to get extra grace period of 50 days only in respect of delivery of the possession of the flat in question to the complainants, failing which the op/developer would pay the charges @ 4% pa on the amount paid to the complainants/purchasers.
Now we have carefully perused the Memo of Consideration appended at the page no – 30 of the said agreement wherefrom it appears to us that the confirming party/developer has already received Rs. 10,00,000/- at the time of execution of the said agreement and to effect the confirming party/developer has acknowledged the same and to that effect the said developer has endorsed his signatures upon the said agreement.
Thereafter, we have also carefully perused the money receipt wherefrom it appears to us that the complainants have further paid Rs. 6,00,000/- in cash to the confirming party /developer on the different dates and to that effect the op/developer has acknowledged the same and endorsed his signatures upon the said receipt.
We have meticulously perused the summary of account issued by the ICICI Bank wherefrom it appears to us that the complainants, on the different dates, have paid the amount of Rs.50,00,000/- to the op no – 1/M.B.Construction in respect of aforesaid flat in question.
To sum up the matter relating to the payment of consideration amount, it is crystal clear to us that the complainants have paid total consideration amount of Rs.(10,00,000/- + 6,00,000/- + 50,00,000/-) = Rs.66,00,000/- only to the op/developer (proprietor of M.B. Construction) in respect of aforesaid flat in question.
So from the detailed analysis upon the payment of consideration amount there is no hesitation to hold that as per Consumer Protection Act, the complainants come well with the purview of the definition of the consumers.
Now we try to discuss whether there is any gross negligence or deficiency in service on the part of the opposite parties or not.
In pursuant to the agreement for sale dated 26/04/2017, it is clear to us that the op/developer has promised to complete the construction work of the said flat and car parking space in all respect and to deliver the same to the complainants/purchasers within the month of April 2018 from the date of executing of the said agreement dated 26/04/2017 with all fittings and fixtures/arrangements with good standard quality. The said agreement also reveals that if the op/developer would fail to deliver the possession within 30/04/2018, in that event, the op/developer would be entitled to get extra grace period of 50 days only in respect of delivery of the possession of the flat in question to the complainants, failing which the op/developer would pay the charges @ 4% pa on the amount paid to the complainants/purchasers.
Upon careful perusal of the letter dated 30/10/2019 written by the complainants herein, addressed to Sri Mithilesh Bhattacharya, proprietor of M.B. Construction ie opposite party no – 1 herein, it appears to us that complainants, by issuing said letter, have requested the op no – 1/developer to complete the building and flat in all respect, to give vacant possession of the flat in question, execute and register the deed of sale, to provide completion certificate etc.
The another remainder has been given to the op -1/developer by issuing an letter dated 02/12/2019 with a request of compliance with the aforesaid prayers at the behest of the complainants. But no fruitful result has been come out from the end of the op/developer. Actually, the complainants cannot be made to wait indefinite period of time for getting their possession of the flat already allotted to them and under such circumstances it would be better for the op/developer to make the refund of the consideration amount to the complainants immediately.
It is fact that till date the project work has not yet been completed and as such there is no question to make the delivery of the possession of the subject flat as well as the execution and registration of the deed of conveyance in favour of the complainants. At this juncture, it is our clear findings and observations that if the builder/promoter fails to complete the project work/construction within the stipulated period of time, under such situation, it should be the duty of the said builder/promoter to make the refund of the consideration amount to the complainant with immediate effect.
In this respect we can safely rely upon the decision Fortune Infrastructure and another vs Trevor D’lima and others reported in 2018 5 SCC 442 wherein the Hon’ble Apex 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 amount paid by him along with compensations.
We further rely upon another case law ie Suniti kumar Bhat and others vs Unitech Acacia Projects Pvt Ltd and others reported in 2018 (3) CPR 795 (NC) wherein the Hon’ble National Commission has been pleased to hold that when the builder fails to construct the flat on time, he is entitled to pay compensation in the form of interest and cost of litigation.
Be it mentioned here that the case has been fixed for ex-parte against all the opposite parties and as such it is the settled principle of law that when the petition of complaint has remained unchallenged and un-rebutted, there is no reason to disbelieve the testimonies of the petition of complaint.
Keeping in view of above observations and regard being had to the submissions of the ld advocate and profound respect to the aforementioned citations of Hon’ble Apex court and Hon’ble NCDRC, we are of the view that there is a strong materials in favour of the complainants and the complainants has proved that there is clear gross negligence and deficiency in service on the part of the op/developer. Accordingly we are constrained to allow the instant petition of complaint against the op no – 1/ developer ex-parte with cost and to dismiss the same against the op nos – 2 to 5/landowners without any order as to costs. Hence
It is
Ordered
That the opposite party no -1/developer is directed to make the refund the consideration amount of Rs.66,00,000/-( sixty six lakh) only to the complainants within 45 days from the date of this order along with interest @8% p.a. from the date of each payment till the date of full realization in the form of compensation.
That the opposite party no – 1/developer is also directed to pay litigation cost of Rs.20,000/- twenty thousand only to the complainants within 45 days from the date of this order in default the said amount shall carry interest @ 8% p.a. till full realization.
The complainants are at liberty to put the said order in execution when the opposite party no – 1/developer will be defaulter to comply with the above order.
No order is passed against the ops 2 to 5/landowners as the whole responsibilities have already been delivered by the landowners upon the op no – 1/developer and for that reason the op no – 1/developer has endorsed his signature as a confirming party upon the aforesaid agreement dated 26/04/2017.
The instant consumer case stands disposed of accordingly.
Let a copy of this order be supplied to the parties free of cost.
Note accordingly.
