Dtd. 02.12.2022

Final Order/Judgment

Debasis Bhattacharya:- Presiding Member

                        Having been agitated over the denial of the opposite parties i.e. a promoter developer company (hereinafter referred to as OP1) and its directors to hand over a flat in terms of a prior agreement and offering of a suggestion to take refund of the earnest money instead, the instant complaint petition has been filed by the complainant u/s 12 of the Consumer Protection Act 1986.

Now the backdrop of the instant case is as follows.                                           

An agreement appears to have executed on 04.10.2010 between the complainant i.e. the purchaser in this case and the opposite party No.1 i.e. promoter and developer, for purchase of a flat and a garage along with proportionate share of land for a consideration of Rs.5,00,000/-.

 The complainant claims to have made a payment of Rs.2,00,000/- to the opposite party as advance consideration money.

The agreement contained specific time of delivery, specific stipulation regarding construction and details of several amenities of the project and OP1 agreed to deliver ‘vacant and peaceful’ possession of the said residential property to the complainant within 24 (twenty four) months from the date of execution of the agreement.

So far as the construction process of the project was concerned, allegedly there was very slow progress and delivery of possession was deferred on one pretext or the other.

However in the month of May 2016 i.e. six years after execution of the agreement the OP1 intimated the complainant that they had to stop the construction work in pursuance of some communications sent by Kolkata Port Trust and Uttarpara-Kotrang Municipality. The complainant was also requested to cancel the registered agreement. Simultaneously OP1 expressed their desire to pay back the booking money of Rs.2,00,000/- paid by the complainant at time of execution of the agreement.

However, this explanation for non-completion of the project appeared ‘frivolous, evasive and baseless’ to the petitioner. Proposal for cancellation of the agreement and the offer for the refund of the advance booking money also sounded like unfair trade practice to the complainant.

The complainant is of the view that the notification of Kolkata Port Trust creates no impediment on the OPs to complete the construction of the project. The complainants put stress on the point that whatever be the situation, the flat should be handed over to them by way of lawfully dealing with the said notification. The complainant in his petition expresses absolute reluctance to accept refund on cancellation of the agreement, as mentioned in the preceding paragraph of this order.

Now, in this forum the complainant prays for imposition of direction upon the opposite party to hand over the possession of the flat, execution and registration of the deed of conveyance of the said property, to pay compensation to the extent of Rs.3,00,000/- for harassment and mental agony and Rs.30,000/- towards litigation cost.         

All the opposite parties are resident/having their office address within the district of Hooghly and the claim preferred by the complainant does not exceed the limit of Rs.20,00,000/-. 

Thus, this Commission has both territorial and pecuniary jurisdiction to proceed in the instant case.

 Materials on records viz. the complaint petition, annexed documents viz. copy of the agreement, subsequent notice sent to the complainant by the lawyer of the promoter developer requesting for the cancellation of the agreement, communications made by Kolkata Port Trust, Uttarpara-Kotrang Municipality, written versions filed by the OPs are perused.

However, apart from submitting the written versions only, the OPs did not appear before this Commission and eventually the case ran ex parte against all the OPs.

It transpires from the communications made by Kolkata Port Trust and Uttarpara-Kotrang Municipality that on one hand Kolkata Port Trust was not inclined to grant permission to raise any permanent construction on the piece of land on which the construction was proposed and on the other, Uttarpara Kotrang Municipality in their communications dtd.13.08.13,  expressed their inability to sanction the building plan in view of some Gazette Notification of the Ministry of Shipping of Government of India. Subsequently the said Municipality repeatedly directed the promoter developer to stop the construction work in their letters dtd.06.02.15 and 14.05 15. Besides, the copy of the letter appears to have been forwarded to IC Uttarpara Police Station with a request to take appropriate steps so that no further construction takes place at the particular place.

In this connection the OPs in their written version draws attention to clause 4 of the registered agreement which reads as follows.

‘Notwithstanding anything contained in this agreement, the vendor/developer shall not incur any liability if it is unable to deliver possession of the said flat within24 (twenty four) months from the date of agreement by reason of civil commotion or notification of the Government and/or public body or authority or on account of withholding or delay in granting the building completion certificate or occupation certificate, water connection or on account of an order of any court affecting the construction work of the building by of injunction or any other restraints.’

Now in view of the above, this Commission is of the opinion that the vendor/developer had no other way than to stop the construction work, in compliance of the instructions of the authorities like Kolkata Port Trust and Uttarpara-Kotrang Municipality and this Commission is not supposed to pass any order compelling the vendor/developer to complete the construction of the project and hand over the flat to the complainant.

But gross irresponsibility and deficiency of service on the part of the OPs are apparent from the fact that the petitioner was intimated about the discontinuation of the project on 13.05.2016 whereas the communication of Kolkata Port Trust was dtd.21.02.2014 and the communication of Uttarpara-Kotrang Municipality was dtd.13.08.2013. 

Hence, it is     

ORDERED

that the opposite parties will be jointly responsible to pay  back Rs.2,00,000/-  to the complainant with 9% interest per annum for the period from the date of agreement to the date of intimation about the stoppage of the construction work in compliance of the instructions of the statutory authorities. Apart from the same, the OPs will also pay Rs.25,000/- as compensation for harassment and mental agony. These amounts will be payable within 45 (forty five) days from the date of this order.  In the event of failure to comply with this order the opposite parties will pay cost of Rs.10,000/- by depositing the same in the Consumer Legal Aid Account. The complaint case partly succeeds on contest.

Let a plain copy of this order be supplied free of cost to the parties or their authorized Advocates/Agents on record, by hand against proper acknowledgement or sent by ordinary post for information and necessary action.

The final order will be available in the respective website i.e. www.confonet.nic.in