APPEARED AT THE TIME OF ARGUMENTS For the Complainants : Mr. Sushil Kaushik, Advocate with Ms Himanshi Singh, Advocate and Mr Karan S Negi, Advocate For the Opposite Party : Mr. Babanjeet Singh Mew, Advocate ORDER C.VISWANATH 1. The Complainants stated in the Complaint that the Opposite party launched a new project “UNIWORLD CITY-AIR” in Kolkata which comprised of high rise apartments to be constructed in the land claimed to be acquired by the Opposite Party in Action Area –III, New Town Kolkata and promised to handover possession by 30.09.2011. On seeing the advertisement, the Complainant No.2 i.e. Nimish Gadodia applied for two flats (i.e. Flat no. 1902 & 1903) one for himself and other for his brother, Rajesh Gadodia. His brother was not available so both bookings were done in his name initially. House bearing No. 1903 was for Complainant No.2 own usage and House No.1902 was booked for his brother Rajesh Gadodia i.e. Complainant No.1. On 11.07.2008, Complainant No.2 applied for House No. 1902 for the purpose of his brother usage/residence and formally got his brother name (i.e. Complainant No.1) added as a second applicant on 30.12.2008. The Complainant No.2 also paid booking amount/application money of Rs.16,07,040/- to the Opposite Party. Vide Buyers Agreement dated 24.07.2008, the Complainants was allotted Flat/Apartment No. 1902 on 18th floor Tower 01 in the above complex, having a super area of approximately 3348 sq. ft., against a sum of Rs.1,68,22,160/- which comprised of Rs.1,60,70,400/- as basic price, Rs.3,50,000/- as Car Parking Charges and Rs.4,01,760/- as Preferred Location Charges (PLC). Apart from the above, the Opposite Party also demanded Rs.1,00,000/- towards club membership charges. After adjustment of the booking amount of Rs.16,07,040/-, the remaining consideration was to be discharged by the Complainants as per a time bound payment plan given in the Buyers Agreement. As per the Buyer’s Agreement, the Opposite Party committed/promised to deliver the possession of the apartment to the Complainants, complete in all respect on 30.09.2011. The Complainants took a housing loan of Rs.86,00,000/- from Axis Bank to pay the above amount and to this effect an agreement was also executed between the Complainants and the Financier i.e. Axis Bank. The Complainants paid regular EMIs. However, due to endless delay in possession, the Complainant after sometime repaid the entire loan to the financier bank. It was also mentioned that the buyer’s agreement was not shown to the allotee at the time of applying for the apartment/house and payment of earnest money. On 11.07.2008, the application, earnest money payment and allotment was carried out by the Opposite Party. The Buyer’s Agreement was shown and sent for signature to the Complainants almost after 12 days. It was alleged that the Complainants paid Rs.1,60,68,640/-, out of the total consideration of Rs.1,69,22,160/- which was approx. 95% of the total consideration, but the possession of the Apartment had not been given by the Opposite Party, despite commitment by the Opposite party to deliver the possession by 30.09.2011. Seeing no progress in construction and no response from the Opposite Party to the calls of the Complainants, a legal notice was sent on 01.06.2016 seeking date of possession, else taking Opposite Party to Court for redressal of grievance, but to no avail. The Opposite Party caused inordinate delay to initiate and reach the planned milestones of the project. Construction of the project had not yet been completed, despite lapse of seven years. Hence, the Complaint was filed. 2. Alleging deficiency on the part of Opposite Party, Complainants filed a Complaint before this Commission under Section 21 of the Consumer Protection Act, 1986, praying relief as under:- · Direct the Opposite Party to handover the possession of the aforesaid apartment, complete in all respects to the Complainants immediately as per the Buyer’s Agreement and execute all the necessary and required documents in respect of the said apartment in favour of the Complainants or in the alternative to provide a ready to move in apartment to the Complainants of identical size and in similar locality or pay a sum calculated as per sq. area multiplied by Rs.7,000/- per sq. ft. being the available market rate of a similar house to enable the Complainants to purchase another house of their own. · Direct the Opposite Party to pay a sum in form of interest @12% p.a. on the amount paid to the Opposite Party till date as compensation from the committed date of possession till the actual possession of the apartment. · Grant immunity to the Complainants from payment of any charges incurred due to any escalation in cost, including enhanced service Tax. · Direct the Opposite Party to pay a sum of Rs.1,00,000/- to each of the Complainants towards the cost of litigation. · Any other order(s) as may be deemed fit and appropriate be passed. 3. The Complaint was contested by the Opposite Party by filing Written Statement in which it was contended that the Complaint was barred under the provisions of the Consumer Protection Act, 1986. It was stated that there was delay in Complex Air due to delays in grant of statutory approvals and permissions relating to infrastructural provisions pertaining to road, electricity, water, sewerage and sanctions etc. which are beyond the control of the Opposite Party. It was also stated that in terms of the said agreement it has been agreed between the parties that for any delay in delivery of the said flat, the opposite party would pay compensation to the complainants @Rs.5/- sq. ft. per month for the period of delay in offering the delivery of the same beyond the period indicated in the said agreement save and except for reasons beyond the reasonable control of the opposite party and the Force Majeure events specified in the said agreement and the same would be adjusted at the time of issuance of Final Notice of Possession to the complainant. It was stated that as clause 5 a) of the said Agreement the Developer shall make its best endeavor to deliver the possession of the said flat to the purchaser by 31st March, 2011 subject, however, to ‘Force Majeure’ circumstances and after all dues in respect of the apartment including stamp duty and registration charges as applicable have been paid. It is further stated and submitted that it was clearly agreed in terms of the said agreement that various blocks/towers comprised in the complex shall be ready and completed in the phases. It is also stated that the construction of the said Tower is steadily progressing. 4. Further, the Complainants failed to prove any defect in the said Flat and /or deficiency in service of the Opposite Party. The said Complaint had no merits and therefore, the same was liable to be dismissed. There was no deficiency of service and/or defects in the Flat and therefore, the Complainants were not entitled to any reliefs as prayed for therein. 5. Heard the Learned Counsels of the Complainants as well as the Opposite Party. Also carefully perused the record. 6. The Learned Counsel for the Complainants citied the judgement passed by this Commission in C.C. No. 1434 of 2015 i.e. “Vikas Poddar & Anr. Versus M/s Bengal Unitech Universal Infrastructure Pvt. Ltd.”, wherein the complaint was partly allowed and the Opposite Party was directed as under: a. Complete the construction work and handover the physical possession of the flat complete in all respects as per agreement till 30th June, 2018 after obtaining occupancy certificate. b. The Opposite Party shall pay interest @6% p.a. on the deposited amount by the Complainant till the date of possession from the due date of possession till the actual date of possession over and above the charges admissible for delay in possession @Rs.5/- per sq. ft. per month. The receivables regarding interest and the delay charges @Rs.5/- per sq. ft. month shall be adjusted at the time of possession before any due amount is taken from the Complaint by the Opposite Party. c. If the possession is not delivered till 30.06.2018, the Complainant shall be at liberty to take refund of the total deposited amount along with interest @11.5% p.a. from the date of respective deposits till actual payment. The Opposite Party shall be liable to pay the same within a period of six weeks after receiving the request letter from the Complainant. If the Complainant does not ask for refund, he shall be entitled to get interest @6% p.a. as already ordered till possession is handed over. d. The Opposite Party shall also pay litigation cost of Rs.7,000/- to the Complainant. 7. It is seen that as per the agreement, possession was to be given by the Opposite Party by 30.09.2011, subject to force majeure conditions. No force majeure conditions have been substantiated. There was clearly an inordinate delay in handing over the possession. Facts in this case are similar to the case referred, vide judgement quoted above. In view of the above, following directions are issued: a. Complete the construction work and handover the physical possession of the flat complete in all respects as per agreement within 90 days from the date of the order after obtaining occupancy certificate. b. The Opposite Party shall pay interest @6% p.a. on the amount deposited by the Complainants from the due date of possession till the actual date of possession, over and above the charges admissible for delay in possession @Rs.5/- per sq. ft. per month. The receivables regarding interest and the delay charges @Rs.5/- per sq. ft. month shall be adjusted at the time of possession before any amount due is taken from the Complainants by the Opposite Party. c. If the possession is not delivered by the time stated above, the Complainants shall be at liberty to take refund of the total deposited amount along with interest @10% p.a. from the date of respective deposits till actual payments as per the Buyer’s Agreement. The Opposite Party shall be liable to pay the same within a period of six weeks after receiving the request letter from the Complainants. If the Complainants do not seek refund, they shall be entitled to get interest @6% p.a. alongwith Rs.5/- per sq. ft. per month, as already ordered till possession is handed over. d. The Opposite Party shall also pay litigation cost of Rs.7,000/- to the Complainants. 8. The present Complaint is disposed of, on the above terms. | 
