MR. SHAYMAL KUMAR GHOSH, MEMBER
The instant consumer case has been filed by the Complainants against the opposite parties (OPs) praying for delivery of the completion certificate, handing over possession of the subject flat, execution and registration of deed of conveyance, compensation and litigation cost alternatively praying for refund of entire consideration amount already paid by the complainants alongwith interest.
The factual matrix of the case is that OP No. 1 is a partnership firm. OPs No. 2 & 3 both are partner of the OP No. 1 and OPs No. 4 to 7 are the landowners. Be it mentioned here that the OPs No. 5, 6 & 7 are the legal heirs of Amitrajit Chakraborty who was the owner of land alongwith OP No. 4. The complainants have intended to purchase one new flat alongwith modern facilities near South Kolkata. An agreement for sale dated 19.05.2010 has been executed by and between the parties herein for purchasing of the flat on the 4th floor, Block B measuring area about 1150 sq.ft. at a consideration price of Rs. 24,00,000/-. Another agreement for sale dated 19.05.2010 has been executed by and between the parties in respect of purchasing car parking space measuring area about 100 sq.ft. at a total consideration price Rs. 1,20,000/-. Out of total consideration amount of Rs.25,20,000/- , the complainants have already paid Rs. 22,77,000/- on the various dates. As per agreement the opposite parties were supposed to provide the possession of the flat to the complainants within 18 months from the date of the agreement (clause no. 2) of the agreement dated 19.05.2010 which is within the month of December, 2011. But they have failed and neglected to provide the possession of the flat to the complainants till date. The complainants have tried to contact with the OPs in order to get the possession of the flat, but in vain. Not only that the OPs have failed to obtain the completion certificate of the building which is mandatory for all newly constructed building in Kolkata Municipal Area. The Complainants both, despite payment of consideration amount, have failed to enjoy the flat alongwith covered car parking space peacefully. There is a clear gross negligence and deficiency in service on the part of the opposite parties and having no other alternative , the complainants have knocked at the door of this Commission for getting proper relief/reliefs as prayed for against the opposite parties.
No written version was submitted by all OPs within the stipulated period of time before this Commission after availing the reasonable opportunities. As such, the matter has been fixed for exparte hearing against them.
Ld. Advocate appearing for the complainants has fairly submitted that the complainants have intended to purchase one newly constructed residential flat measuring area 1150 sq.ft. alongwith the car parking space measuring area 100 sq.ft. at a total consideration of Rs. 25,20,000/- and to that effect two agreements for sale dated 19.05.2010 have been executed by and between the complainants and the opposite parties herein. The Ld. Advocate has further argued that the complainants have already paid Rs. 22,77,000/- to the developer. As per agreement the opposite parties were supposed to provide the possession of the flat to the complainants within the month of December, 2011 but the OPs have failed to deliver the possession of flat in habitable condition within the stipulated period of time. Not only that the opposite parties have failed to obtain the completion certificate of the said building which is mandatory for all newly constructed flat in the Kolkata Municipal area. Ld. Advocate has also submitted that it is very unfortunate and unhealthy situation for the complainants that after payment of lion shares of money the complainants have deprived to enjoy the said flat. There is no chance to deliver the aforesaid flat to the complainants as long 11years have already been elapsed and accordingly the Ld. Advocate appearing for the complainants has prayed for refund of the consideration amount already paid by the complainants alongwith interest.
At the time of final hearing none appeared on behalf of the opposite parties.
We have heard the Ld. Advocate appearing for the complainants at length and in full.
We have considered the submission of the Ld. Advocate.
We have meticulously perused all materials available on the record.
The final hearing has been concluded.
Upon careful perusal of the agreement for sale dated 19.05.2010 , it appears to us that Goutam Ghosh and Smt. Saswati Ghosh have entered into aforesaid agreement with the developers and the landowners in respect of purchasing newly constructed flat measuring a super built up area about 1150 sq.ft. South East facing more or less on the 4th floor, Block B together with undivided proportionate share and interest of the land alongwith car parking space and common facilities like lift, generator and other civic amenities.
Upon careful perusal of the money receipt and Bank statement, it appears to us that the complainants have made the following payment :
Date | Amount( in Rs.) |
22.03.2010 | 20,000/- |
19.05.2010 | 2,32,000/- |
20.12.2010 | 10,25,000/- |
17.01.2014 | 5,00,000/- |
27.03.2014 | 5,00,000/- |
Total consideration | 22,77,000/- |
In pursuant to the above discussion, it is crystal clear that the complainants have paid aforesaid consideration amount of Rs. 22,77,000/- to the OPs/developers for purchasing the aforesaid flat in question and as such the complainants come well within the purview of the definition of the ‘consumers’ as per Section 2(d) (ii) of the Consumer Protection Act, 1986.
It is pertinent to mention here that the agreement for sale has been executed in the year 2010 between the parties. Now it is the year 2023. So, it is very unfortunate that after expiry of long 13 years, the OPs have failed to deliver the possession of the flat to the complainants in habitable condition causing clear gross negligence and deficiency in service on the part of opposite parties.
Upon careful perusal of the record, it is crystal clear to us that the OPs No.1 to 3 have received the total consideration amount of Rs. 22,77,000/- from the end of the complainants and as such it should be the bounded duties of the OPs No. 1 to 3 to deliver the flat in question to the complainants but in vain. From the detailed hearing and upon careful perusal of the record, there is no hesitation to hold that it is not possible at the behest the OPs/developers to deliver the subject flat to the complainants in habitable condition as the project work has totally failed. It is the settled principles of law that the complainants should not wait for indefinite period of time to get the flat in question and the order of refund should be passed in order to meet the proper justice to the complainants.
The gross negligence and deficiency on the part of the OPs/developers are hereby proved. In this respect, we can safely rely upon the decision 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 held 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. In this respect we can depend upon another remarkable decision FORTUNE INFRASTRUCTURE AND ANOTHER VS TREVOR D’LIMA AND OTHERS REPORTED IN (2018) 5 SCC 442 wherein 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 alongwith compensation.
It is not last but least that the allegations against the OPs clearly stated in the petition of complaint remain unchallenged as no written version has been filed by them in order to take the defence against the said petition of complaint. Moreover, the OPs kept mum against the said allegations brought in the aforesaid consumer case filed by the complainants and accordingly there is no hesitation to hold that such silence clearly proves the negligence /fault on the part of the opposite parties/developers.
No order should be passed against the OPs No. 4 to 7/ landowners as they did not receive any consideration amount from the complainants.
Keeping in view of above observations and finality of the litigation, there is no hesitation to hold that there is a clear gross negligence and deficiency in service on the part of OPs 1 to 3 and accordingly we allow the instant CC case exparte against OPs 1to 3 with cost and dismiss the same exparte against the OPs 4 to 7 without any order as to cost.
Hence,
It is
ORDERD
That the OPs No. 1 to 3 /developers are directed to refund of Rs. 22,77,000/- (Rupees twenty-two lakhs seventy-seven thousand) only to the complainants within 60 (sixty) days from the date of this order alongwith interest @ 9% p.a. (in the form of compensation ) from the date of each payment till full realisation.
That the OPs No. 1 to 3/developers are further directed to pay litigation cost of Rs. 20,000/- ( Rupees twenty thousand) onlyto the complainants within the aforesaid stipulated period of time , in default the awarded amount shall carry interest @ 9% p.a. till full realisation.
No order is passed against the OPs No. 4 to 7 /landowners as they did not receive any consideration amount from the end of the complainants.
In case of non-compliance of the order by the OPs No. 1 to 3 /developers, the complainants are at liberty to put the final order in execution.
The instant CC case is, thus, disposed of .
Note accordingly.
Let a copy of this order be supplied to the parties free of cost.
