FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the Complainant, in brief, is that on 21/11/2016, Complainant executed an Agreement for Sale with the OP1 for a luxury apartment at TERRACE HEIGHTS comprised along with a covered car parking area in Block 08 being Unit No.B1 measuring about 1835 sq.ft super built up area at Mouza- Bajetaraf, J.L. No. 50, P.S. Rajarhat, under Chandpur Panchayat, District - North 24 Parganas, by paying Rs.14,07,900/- towards advance amount out of total consideration of Rs.72,44,550/- vide cheques No. 512667 for Rs.2,50,000/- and 512668 for Rs.11,57,900/-dated 02/10/2016 drawn on S.B.I, and OP1 issued Money Receipts against such payments vide No. MR-GCTH/00566/16-17 dated 04/10/201 for Rs.2,61,250/- and MR-GCTF/00568/16-17 dated 28/10/2016 for Rs.12,10,006/-.Thereafter as per corporate tie up between OP1 and OP2 the Complainant is instructed to apply for home loan from the OP2 and a loan of Rs.56,18,000/- is sanctioned by the OP2 vide letter no.Br:CR:2016-17/301 dated 05/12/2016. Few months after the booking the OP1 raised a demand notice dated 18/01/2017 of Rs.8,54,327/-.The OP2 transferred Rs.1,26,615/- on 20/01/2017 and Rs.7,20,434/- on 06/04/2017 directly to the OP1 overlooking its internal policy as per the Point No. 9 of the Loan Sanction letter and guideline of inspecting the development of construction before disbursing any loan amount to the OP1. As per Article 9 Clause (i) of the Agreement for Sale the OP endeavors to hand over the possession of the residential flat to the complainant within 24 months from the effective date with a grace period of 6 months. As per Loan Sanction Letter the Complainant had enjoyed a moratorium period of 36 months and the repayment was supposed to start from one month after the moratorium period or 6 months after the possession, whichever is earlier. On 10/02/2020 the OP2 asked the Complainant to start repaying the EMIs of Rs.62,980/-per month as the loan had become due after expiry of the stipulated period. On receipt of such letter the Complainant sent an email dated 24/02/2020 to the OP2 asking them to reconsider and revise the repayment of the loan. On reply the OP2 expressed their inability to do anything and asked the Complainant to repay the loan/EMIs. Thereafter the father of the Complainant who is a co-applicant for the said loan sent a letter dated 20/032020 to the OP2 requesting them to revise the EMI from Rs.62.980/- to smaller amount as the complete loan was not disbursed and only Rs.10,14,680/- was disbursed/moratorium period. Being frustrated, on 24/02/2020 the Complainant requested the OP1 vide mail to cancel the booking and to refund the deposit amount. But the OP1 did not reply the same. Finally on 04/07/2020 the Complainant sent Legal Notice to the OP1stating all the facts. In spite of receiving the same the OP did not move. Till date the complainant neither got the flat nor got the refund of deposited money. Finding no other alternative complainant has filed the instant consumer complaint for getting reliefs.
OP contested the case by filing W.V. contending inter alia that the instant complaint is baseless, suppression of facts, false, barred by limitation and is not maintainable for non-joinder of necessary party of Ujjal Kanti Das and also this Forum has no jurisdiction to hear the case. The case of the OP is that complainant has booked the said flat for resale purpose hence not consumer within the meaning of Consumer Protection Act. Further it is known to everyone that due to slow down economy, infrastructure sector is going through a bad period which beyond the control of OP. The delay has been caused due to Force Majeure events and developer cannot be held responsible for such delay. Thus, the OP has prayed for dismissal of the instant complaint.
Despite service of notice OP2 neither appeared before the Commission nor file WV within stipulated period. Thus, the case do proceed ex parte against the OP2.
The complainant has tendered evidence supported by affidavit. But OP1 has failed to reply to file the E-chief.
We have gone thoroughly evidence adduced by the parties including documents on record and gave careful consideration to the arguments advanced by the Ld. Lawyers for the parties.
It is admitted fact that the Complainant executed an Agreement for Sale on21/11/2016 with the OP1 for one residential luxury apartment being Unit No. B1in Block-08on the 1st Floor situated in the TERRACE HEIGHTS by paying Rs.14,07,900/-.out of total consideration amount of Rs.72,44,550/-vide cheques No. 512667 for Rs.2,50,000/- and 512668 for Rs.11,57,900/- dated 02/10/2016drawn on State Bank of India. Documents furnished by the Complainant supported the averments made out in the Complaint Petition. OP1 issued Money Receipts against such payments vide No. MR-GCTH/00566/16-17for Rs.2,61,250/- dated 04/10/2016[BEING RECEIVED AGAINST NEW BOOKING (UNIT A/C RS 2,50,000/- & FOR S.T. A/C RS 11.250)]and No. MR-GCTF/00568/16-17 dated 28/10/2016 for Rs.12,10,006/-(BEING RECEIVED AGAINST UNIT A/C RS 11,57,900/- & FOR S.T. A/C RS52,105/-). It is also admitted that as per corporate tie-up the OP2 has sanctioned a Loan Amount of Rs.56,18,000/- to the Complainant vide letter dated 05/12/2016 and the Total Repayment Period is360 Months with a Moratorium period of 36 Months.
It has been argued by Ld. Advocate for the Complainant that despite executing the Sale Agreement and receiving the Payments on Agreement the OP1 did not start the said project work. It is clearly mentioned in the Article 9 Clause (i) of the Agreement for Sale that the possession of the said flat will be delivered within 24 months from the effective dates. But after passing of 2/3 years no construction work has been started in the said project. In spite of that the OP1 raised a Demand Notice dated 18/01/2021 to Complainant for making payment of Rs.8,54,327.It is also argued by the Ld. Advocate for the Complainant that the OP2 disbursed an amount of Rs.8,47,049/-directly into the Account of the OP1 without inspecting the progress of construction work. Photocopy of the said Sanction Letter dated 05/12/2016of Loan Account bearing No. 3980258351 reveals that:
9.The loan amount will be disbursed by Credit in to CD account of the builder with our Branch directly to the Seller/Builder as per the provisions in the Sale agreement after getting suitable instruction from you.
Therefore we are not inclined to consider the submission of the Ld. Advocate for the Complainant.
On perusal of the record it is found the OP2asked the Complainant to start repayment vide letter dated 10/02/2020.In reply the Complainant sent an E-mail dated 24/02/2020to the OP2 stating the ground reality of the said project. OP2 replied the mail on 19/03/2020 intimating the Complainant that:
Arrear in your loan account is Rs.62980/- (interest w.e.f 19/01/2017 to 29/02/2020) which needs to be paid upfront for the repayment schedule to be amended as per the disbursement amount.
It is also noticed that the father of the Complainant who himself is a co-owner of the flat in question requested the OP2 to revise the EMIs and consider Rs.10,14,680/- as the final amount. In this regard we may refer the Sanction Letter dated 05/12/2016 issued by the OP2 to the Complainant wherein it is mentioned that;
13(j) As the loan is for purchase of Flat, the repayment will begin as per sanction irrespective of Delivery or Non Delivery of possession of the Flat by the seller, for what so ever reasons, it may be.
On the other hand, the Complainant sent an E-mail dated 24/02/2020to the OP1 for cancelling the booking of the said flat and for refunding total amount deposited by him with interest @18%. The OP1 did not reply the said E-mail. At last the Complainant sent a Legal Notice dated 29/06/2020 to the OP1. Photocopy of the said Legal Notice dated 29/06/2020 served to the OP1 goes to show that the Complainant made a demand to refund the deposited amount of Rs.22,62,227/- along with interest@18%. It is noted that after receiving the mail and legal notice OP1 did not bother to reply the same by revealing any clear and transparent information about the booked flat. We think it is deficiency in service on the part of the OP1. Moreover, photocopy of E-mail dated 19/03/2020 and Legal Notice dated 29/06/2020 sent by the Complainant to the OP1 show that complainant requested the OP1 to cancel the Agreement and refund the booking money i.e. Rs22,62,227/- for the reason that since the booking was made long back but the OP1 did not start the construction work of the said flat for which the prayer for refund. In our view, there is justification in such submission from the side of the complainants.
Controverting the allegation made by the Complainant, Ld. Advocate for the OP argued that the alleged dispute in the petition of Complaint is not a consumer dispute within the meaning of the C. P. Act as the Complainant booked the said flat for the commercial purpose. We do not find any logic in such submission. We have travelled through the documents on record and found that Complainants booked a flat in the said residential project of the OP1against Rs.22,62,227/-. We do not find any piece of document where from it would prove that Complainant is not consumer under the OP1. No such document has been found in the record wherefrom it can be established that OP1 has started the construction work of the subject flat after receiving booking money. Thus, this gesture of the OP1 can be termed as unfair trade practice.
Another submission has been placed before us from the side of the OP1 that throughout India including in West Bengal infrastructure sector is going through a very bad period due to Demonetization and for such reason there has been a slowdown in overall development, which has adversely affected the progress of the said project. As the economic slowdown beyond the control of OP1, they herein cannot be held responsible and the delay has been caused due to Force Majeure event. As such, the owner and / or developer are not liable for such delay. In our considered view, such a plea cannot be construed as Force Majeure circumstances because referring a decision of Hon’ble Supreme Court reported in II (2000) CPJ 1(Ghaziabad Development Authority Vs. Union of India) the Hon’ble National Commission in a decision reported in III (2007) CPJ 1( Kamal Sood Vs. DLF Universal Ltd.), has observed that it is unfair trade practice on the part of builder to collect money from the prospective buyers without obtaining the required permissions, such as zoning plan, layout plan etc. It is the duty of the developer to obtain the requisite permissions or sanctions, in the first instance and, therefore, recover the consideration money from the purchaser. Therefore, the alleged obstructions or hindrance cannot be considered as Force Majeure circumstances. So, OP1 was under obligation to handover the subject flat in favour of the Complainant within the stipulated period and failure on the part of OP1 to handover the subject flat within the stipulated period amounts to deficiency in services on the part of the OP1.
Further Ld. Advocate for the OP1 submitted that the Complainant is liable to comply as per Agreement for Sale and also liable to pay the Cancellation Charge. In this regard we are opined that, the Complainant cannot made to wait indefinitely for the possession of the flat, when there is absolutely no response from the OP1.The primary responsibility of a builder is to construct the flat and deliver the possession of the said flat to the purchaser within stipulated period as per Agreement for Sale for which the developer has received the money from the purchaser. If the builder does not deliver upon his contractual obligations and at the same time show the reason for the delay in completion of the said flat and offering its possession to the purchaser was on account on circumstances beyond his control, this would constitute deficiency on the part of the developer in rendering service to the consumer.
In the result, the Consumer Complaint is allowed on contest in part against the OP1 and dismissed on ex parte against the OP2 with a following direction:
- OP1 is directed to refund the deposited amount of Rs.22,62,2277/- with simple interest @8%p.a. from the respective dates of payment is made, together with litigation cost of Rs.10,000/- to the Complainant.
- This amount to be paid by the OP1 to the Complainant within 45 days from the date of this order, failing which, the deposited amount shall attract interest @12% p.a. for the same period.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
