Order No.07    Date-07.02.2022

Today is fixed for passing order in respect of MA No. 35/2022 filed by the complainants. The matter was heard on  28.01.2022 in presence of Ld. Advocates of both the parties. WO has also been filed by the OP.

While perusing the said Miscellaneous application it is observed that the complainants have entered into a sale agreement dated  26.08.2016 with the OP for purchasing four flats of the entire second floor of the building under the address at 265D/1, B. L. Saha Road, Kolkata-700053 measuring super built up area of 1939 sq. ft. with a covered car parking space. The total agreed price was Rs. 77,56,000/- along with Rs. 3,50,000/- for covered parking under certain terms and conditions. It is also agreed that the building will be completed within 18 months from the date of execution of this agreement failing which the OP shall pay compensation for delay @ 2.5 % per month or part thereof on the total amount paid by the complainants.

In terms of the said agreement, the building as well as the flats are scheduled be ready within 26.02.2018. From the communications made between the parties, it appears that the building as well as the flats were not ready within  26.02.2018. The matter was referred to the Consumer Affair Department for mediation which took place on  07.08.2019 and both parties were advised to arrange an inspection of the flats in dispute jointly within October 2019 and to submit a detailed report on the same on 27.11.2019. Because of interference of the Consumer Affair Department there was substantial improvement of the pending works while perusing the communications between the parties vide letter dated 26.12.2019,  02.01.2020 and so on. The dispute was not settled because of non-execution of penalty clause of the agreement for sale dated 26.08.2016 for delay in delivery of the flats in concern and also non-payment of the dues to be paid by the complainants. There are so many questions and there are so many replies in between the parties which are to be adjudicated at the time of hearing of the consumer complaint. The facts of the case is that the complainants have paid a total sum of Rs. 46,53,000/- against the total cost of Rs. 77,56,000/- along with Rs. 3,50,000/- for car parking space. The above facts of payment is undisputed. For getting justice and relief, the complainants have approached the commission by filing the instant consumer complaint. While perusing the said MA it is observed that the OP is inclined to sell the said flats of the petitioners to third party during the pendency of the instant case and if the said sale happens the petitioner will be seriously prejudiced and suffer irreparable loss for which they have prayed for an ad interim order restraining the OP from transferring, parting with possession or creating any third party interest with respect to the said flat during the pendency of the instant case.

The OP has filed the WO against the said MA. The OP submits that the complainants have opted to avail remedies provided under section  31 of West Bengal Housing Industry Regulation Act,  2017 and in such an event they loose the right to simultaneously exercise the option to file a complaint under the provisions of CP Act, 2019. Hence, the present complaint itself is barred by doctrine of election. Moreover, the complainants approached the Consumer Affair and Fair Business Practice Department, Government of West Bengal for mediation. The mediation process was concluded with the settlement that neither the complainant claim any penalty for delay not the OP shall claim for extra cause of penal interest in terms of the agreement and it was directed to get the execution and registration of conveyance deed done on  05.02.2020. But for some reason or other the mediation did not materialize and the complainant vide letter dated  13.02.2020 inform the department that the mediation process had been closed without any fruitful result. Thereafter, the OP vide their letter dated 16.06.2020 requested the complainants to pay the balance consideration amount and complete the transaction within a period  of  15 days from the date of receipt of the said notice. The complainants did not respond the said notice and the period is expired and consequently, the agreement for sale stands cancelled. The complainants as such loose their right to make any demand on the basis of the agreement  which has been cancelled.

On perusal of both the MA and its WO it is observed that the complainants have booked the impugned flats for which they have paid a substantial amount which has been agreed by and between the parties. It is also fact that mediation process initiated by the Consumer Affair and Fair Business Practice Department did not yield any result and the complainants have preferred complaint before the WBHIRA which the complainants have not mentioned in their complaint petition as well as in their MA. The OP has not submitted any document of cancellation of the agreement for sale which they have mentioned in their WO. The adjudication of the consumer complaint is in the very initial stage and the subject matter will be taken care of in due course of time. Since huge amount of the cost of the flat has been paid by the complainants and the OP has not delivered possession on the due date as per the agreement for sale the OP cannot wash out his hand by cancelling the agreement for sale and throw the complainant on road and can not enter into further agreement by creating third party interest on the same property. The balance of convenience and inconvenience will go in favour of the complainant. Moreover, the West Bengal Housing Industry Regulatory Authority Act,2017 has been declared unconstitutional as per the judgment dated  04.05.2021 of the Hon’ble Supreme Court of India in the case of Forum for People’s Collective Efforts (FPCE) & Anr. Vs. The State of West Bengal  & Anr.

In view of the above, we are inclined to allow the MA petition and pass order of temporary injunction restraining the OP from transferring, parting with possession or creating any third party interest with respect to the said flats described in the complaint petition till disposal of the instant consumer complaint.

Thus, the MA Petition No. 35/2022 is disposed off. 

Fix 10.03.2022 for appearance of the parties and for further order  the OP may submit their WV within the stipulated period if they like.