1.      The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (“the Act”) against the Order dated 03.10.2016 passed by the learned State Consumer Disputes Redressal Commission, West Bengal (“the State Commission”), in Consumer Complaint No. 131 of 2014, wherein the Complaint filed by the Complainants (Respondents herein) was allowed.

2.      There was a delay of 7 days in filing the present appeal. For the reasons stated in the application for condonation of delay, being IA No. 12484/2016, and in the interest of justice, the same is condoned.

3.      For convenience, the parties involved in this Appeal will be referred as per their identification in the Complaint originally filed before the learned State Commission.

4.      Brief facts of the case, as per the complainants, are that on 09.05.2006, they entered into an agreement with the developer, M/s. Canopy Projects Pvt Ltd (OP-1), to purchase Plot No. 171, measuring 7.425 decimals at project ‘Olive Gardens’, Mouja Genragari under PS- Rajarhat, Dist- North 24 Parganas, for a total consideration of Rs.14,85,000/-. As per the terms of agreement, the possession of the plot was to be handed over in two phases: Phase-I to be completed by December 2006 and Phase-II by December 2007. They paid Rs.13,36,500/- as part of the consideration. But the OPs made false excuses and presented frivolous reasons till 2008 and did not hand over the plot. Despite all requests, letters and legal notices, it remained unheeded. Hence, they approached the State Commission seeking refund Rs.13,36,500/- with 12% interest from 01.01.2008 till the date of payment, Compensation of Rs.5 Lakhs and costs.

5.      In reply before the Ld. State Commission, OP-1 & 2 admitted that they received Rs.13,36,500/- from the complainants as advance against plot No. 171 and had started the registration of the plots in favor of the owners in 2007/2008. However, in July 2010, the BL & LRO, Rajarhat of the Government of West Bengal, initiated vesting proceedings against several other landowners, including OP-1. A Writ Petition was filed before the Hon’ble High Court of West Bengal, which is still pending for disposal. Consequently, they claimed they were not in a position to hand over the plot to the complainants and argued that the complaint should be dismissed.

6.      The Ld. State Commission allowed the complaint with the following directives:-

“ORDERED

  That the complaint is allowed on contest against Opposite Parties with cost of Rs.10,000/- to be paid by the Opposite Party no.1/developer in favour of the complainants.

The Opposite Parties are jointly and severally directed to refund Rs.13,36,500/- together with interest thereon @ 12% p.a. from 01.01.2008 till its total realisation.

All the above payments must be made within thirty days from the date otherwise Complainants shall have liberty to execute the same after invoking the provisions of Sections 25/27 of the Act.”

7.      Being aggrieved by the impugned order dated 16.09.2016, the Appellants /OPs filed this present Appeal no. 1602 of 2016 seeking the following:

“(i) to admit and register the appeal;

(ii) to call for LCR;

(iii) after hearing the appeal and considering the above facts pleased to set aside the impugned order dated 16.09.2016 passed in S.C. Case No. CC/131/2014 by the Hon’ble State Commission, West Bengal;

(iv) to call for the LCR of Complaint case no.CC/131/2014 for proper adjudication of the case;

(v) Stay the operation of order impugned till final disposal of appeal;

(vi) to pass other order or orders as deemed fit and proper.”

8.      In the instant Appeal, the Appellants/OPs mainly raised the following issues:

A. The Ld. State Commission failed to note that the delay in delivery of the plot was due to the intervention of government officials and court procedures, which were beyond their control and attract the 'Force Majeure' clause of the agreement.

B. The Complainants intended to purchase the plot solely for investment constituting a commercial transaction. Thus, the complaint is not maintainable.

C. The State Commission failed to note that at the development work stage, the State Govt had initiated vesting proceedings against them. Before this, the Bhangore Rajarhat Area Development Authority (BRADA) vide letter dated 25.06.2008, demanded an explanation regarding the delay in assessment of development charges and vide letter dated 27.06.2008, restricted their development work until payment. Unfortunately, as BRADA failed to fix these charges, they could not clear the same until 14.12.2010, when they finally received clearance from BRADA.

D. The appellants handed over several plots to purchasers and executed deeds of conveyance which indicate their right approach and fair practice. It was due to the intervention of the B.L. & L.R.O. and BRADA, the project was suspended for several years, which does not constitute a deficiency in service on the part of the appellants. Therefore, they are not liable for any compensation.

E. The observation of the State Commission that the High Court matter is still pending and that there is no possibility of providing possession of the plot to the respondents is inaccurate. The order of High Court of Calcutta, along with order from the B.L. & L.R.O. released the property and recorded it in their name. They are in a position to deliver possession of the plot to the respondents.

9.      In his arguments the Ld. Counsel for Appellant/OP reiterated key grounds of appeal and facts of the case. He further argued that the complaint does not allege any deficiency in service but seeks refund of money, which is essentially a sale proceeds. The Consumer Courts are meant to adjudicate deficiencies in service, and since no service was provided by the Appellant, the complaint has no basis under the Consumer Protection Act, 1986. He asserted that the complaint, filed in 2014, is barred by limitation as per the two-year limitation period for filing consumer complaints. He highlighted that no application for condonation of delay was filed by the Complainant, further reinforcing the argument for dismissal on grounds of limitation. He Cited the precedent set by the Hon’ble Supreme Court in Ganeshlal vs. Shyam, arguing that the dispute is not a consumer dispute but rather a simple sale transaction. He stressed that the complainant did not approach seeking specific performance of the agreement. The inability of the Appellant to transfer possession of the plot was due to an illegal vesting procedure initiated by the State of West Bengal. Argued that this does not constitute a deficiency on the part of the Appellant, as the delay and litigation resulted from government actions beyond their control. He further contended that the complaint should have been filed as a suit for specific performance or a money suit, rather than as a consumer complaint seeking monetary relief. He prayed for the dismissal of the complaint on these grounds, asserting that the Consumer Court lacks jurisdiction to adjudicate the matter due to its nature as a sale transaction without any service deficiency.

10.    The learned Counsel for the Complainants/ Respondents asserted that the complainants have entered into a contract on 09.05.2006 with the OP-1 to purchase Plot No. 171, measuring 7.425 decimals for a total consideration of Rs.14,85,000/-. As per the terms of agreement, the possession of the plot was to be handed over in two phases: Phase-I to be completed by December 2006 and Phase-II by December 2007. In the course of agreement, they paid Rs.13,36,500/- as part consideration. But the OPs persisted making repeated false excuses and presented frivolous reasons till 2008 and did not hand over the plot. Despite all requests, letters and legal notices, it remained unheeded. Hence, they approached the State Commission seeking refund Rs.13,36,500/- with 12% interest from 01.01.2008 till the date of payment, Compensation of Rs.5 Lakhs and costs. The Ops failed to deliver the Plot as committed and the grounds advanced are frivolous and ought to have been considered by them prior to entering into the contract. After taking substantial amount of consideration the OPs cannot backtrack from the agreement and deny refund also.

11.    I have gone through the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by learned Counsels for both the Parties.

12.   The core issue in this case hinges on determining whether, on account of delay in delivery of the unit, the complainant is entitled for the refund of amount deposited for the Plot in question.

13.    The appellant contended that there is no deficiency in the service of the OPs under consumer law and, therefore, the claim of the complainant, seeking a refund for a purported sale transaction of a plot, does not allege any deficiency in service.

14.    It is undisputed that 09.05.2006, the Complainants entered into an agreement with OP Builder (M/s. Canopy Projects Pvt. Ltd.) to purchase Plot No. 171 at project 'Olive Gardens' in Mouja Genragari under P.S.- Rajarhat, Dist-North 24 Parganas, for total consideration of Rs. 14,85,000/-. The agreement stipulated that possession of the plot would be handed over in two phases: Phase-I by December 2006 and Phase-II by December 2007. The complainants have paid Rs.13,36,500/- as part consideration. OP Builder admitted receiving Rs.13,36,500/- and acknowledged starting the process of plot registration in favor of the complainants in 2007/2008. In July 2010, the BL&LRO, Rajarhat initiated vesting proceedings against several landowners, including OP Builder, which led to a legal proceeding in the High Court of West Bengal. The vesting proceedings and subsequent legal challenges delayed OP Builder from delivering possession of the plot to the complainants. The complainants approached the Ld. State Commission seeking a refund of Rs.13,36,500/- with 12% interest from 01.01.2008, compensation of Rs. 5,00,000/-, and litigation costs. The Ld. State Commission, after hearing both parties, directed OP Builder to refund Rs. 13,36,500/- with interest @12% and awarded Rs.10,000/- as costs.

15.    It is clear that there was a significant delay in handing over the possession of the plot to complainants as per the Agreement. The complainants cannot be expected to wait indefinitely after paying substantial amount of the total with expectation of timely possession. In several cases, the Hon'ble Supreme Court asserted the right of buyers to receive fair delay compensation when developers unduly and unreasonably delay possession as per the Agreement.

16.    The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, decided on 25.03.2019 has observed that:

“.....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified.”

17.    In another Landmark judgement, the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan, ll (2019) CPJ 34 (SC), decided on 02.04.2019 has held that:

We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent- Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest”.

18.    The objection of the OPs that the delay was due to force majeure circumstances as delay in handing over possession of the plot occurred due to the intervention of government officials and court procedures, which were beyond the control of the appellants and attract the 'Force Majeure' clause of the agreement. This Commission in CC 379 of 2013 Sivarama Sarma Jonnalagadda & Anr vs. M/s Maruthi Corporation Limited & Anr. decided on 21.09.2021 has held that:

“We are of the view that that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on force majeure clause while retaining the amounts deposited by the Complainant, is not on only an act of deficiency of service but also amounts to unfair trade practice.”

19.  As regard to the interest In a recent Order of the Hon’ble Supreme Court in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019 decided on 7.4.2022, it was held as under :-

“We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts.  The Commission in the Order impugned has granted interest from the date of last deposit.  We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.

At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the consumer for enhancement of interest.”

20.    The objection by the Appellants /Opposite Parties was that the Complainants are not consumers under the Act, but investors who had purchased the Unit for commercial purpose is rejected.  In this regard, it would be proper to draw attention to this Commission’s Order in the case of Sanjay Rastogi v. BPTP Limited & Anr in CC No. 3580 of 2017 decided on 18.06.2020 which was upheld by Hon’ble Supreme Court.  It has observed as under:

21.    In the instant Complaint, there is no such Evidence filed or argued by the Opposite Party to establish its case that the said Unit was purchased for the purpose of resale or any real estate activity.

22.    Another objection raised by the Appellants is regarding the continuing cause of action. In this regard, attention is drawn to the Order of the Hon’ble Supreme Court in Meerut Development Authority Vs. Mukesh Kumar Gupta [IV (2012) CPJ 12] decided on 09.05.2012 wherein it was held that:

“the failure to deliver possession of the Plot constitutes a recurrent/continuing cause of action.”

23.    Based on the above discussion and on careful perusal of material on record, I do not find any illegality or infirmity in the order of Ld. State Commission and however, modify the Order of State Commission dated 03.10.2016 as follows:

ORDER

1. The Opposite Parties shall jointly and severally refund Rs.13,36,500/- to the Complainant, along with simple interest @ 9% per annum from 01.01.2008 till its total realization, within a period of one month from the date of this order. In the event of delay beyond one month, the simple interest payable for such extended period shall be @ 12% per annum.  

2. The Opposite Parties shall jointly and severally pay Rs.25,000/- to the Complainant as costs of litigation.

24.    With these directions, FA No. 1602 of 2016 stands disposed of.

25.    All pending applications, if any, also stand disposed of accordingly.

26.    The Registry is directed to release the Statutory deposit amount, if any due, in favor of the Appellant after the compliance with the above order.