SHRI REYAZUDDIN KHAN,MEMBER
This is an application U/s.35 of the Consumer Protection Act, 2019 is at the instance of an intending purchaser against GreenTech IT City Pvt.Ltd on the allegation of deficiency of service in a dispute of flat construction.
The complainants made an application for booking of one residential flat along with open car parking space in Smart Home Residency situated in the Green Tech City at Mouza-Bajetaraf,P.S-Rajarhat,North 24-Parganas.The OP issued allotment letter dated 27.11.2013.The area measuring about 650 sq.ft super built up area along with one open car parking space at the total consideration price of Rs,17,55,000/ plus service tax and Rs,2,00,000/-plus service tax against car parking, total consideration amount of Rs,19,55,000/ plus service tax and other charges separately.
An agreement for sale was executed on 27.12.2013 between the parties and as per agreement for sale under –Article-9 delivery of possession would be made within 24 months from the date 27.12.2013.The complainants have paid a total amount of Rs,6,04,623 which includes cost of flat and service tax against proper money receipts on different dates.
1.Rs,1,03,090 vide cheque no.003656 dated11.11.2013,drawn on Central Bank of India
2.Rs,2,99,992/vide cheque no.033372 dated..06.12.2013, Central Bank of India
3.Rs,2,01,541 vide cheque no.038813 dated..01.02.2014 ,Central Bank of India
In-spite of payment of such part amount OP failed to start the construction work on Block-05 till date, though it has to be handed over within 24 months from the date of agreement for sale ie,27.12.2013.The complainants on repeated occasions requested the OP to complete the construction work and deliver possession of the apartment. The complainants stated that they were compelled to cancel the said booking vide letter dated 11.11.2020 and requested the OP to refund the entire money along with interest @18% P.A but the OP did not pay any heed to the request.
The acts and conducts of the OP clearly established that the developer is guilty of deficiency in service and unfair trade practice. Finding no other way the complainants have approached the Commission for justice with relief as detailed mentioned in the complaint petition.
The OP has contested the case by filing their Written Version.On behalf of OP one Mr Uday Modi ,son of Mr.Raj Kishore Modi stated that the consumer case is bad in law also barred by limitation. The claim mentioned in complaint petition is baseless,false and fabricated.The complainant is not a consumer within the meaning of Consumer Protection Act,1986. The OP stated that there has been economic slowdown in the country which effected the overall development in the infrastructure sector and adversely affected the progress of the project.The demonetization, the change in real estate law,and further the Covid-19 Pandemic delayed the project.The change in construction and handing over of the concerned unit has been owing to intervening “Force Majeure” events which was beyond the control of the Opposite party.There is no deficiency in service and or unfair trade practice on the part of the answering OP.Therefore,the complaint should be dismissed with cost.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OP is deficient in rendering proper service to the Complainants?
2) Whether the OP has indulged in unfair trade practice?
3) Whether the complainants are entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
Complainants have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by the OP.
On perusal of the pleadings, evidence led by the parties coupled with the documents annexed therewith, it would reveal that on 11.11.2013 complainant submitted an application for booking of one residential apartment in Green Tech City at Mouza-Bajetaraf,P.S-Rajarhat,North 24-Parganas with an open car parking space.Out of total consideration amount of Rs,19,55,000/(Rupees Ninteen Lakh Fifty Five Thousand )only plus service tax and other charges the complainants have paid Rs,6,04,623/ (Rupees Six Lakh Four thousand Six hundred twenty three)only to the OP.
It remains undisputed that OP issued allotment letter dated 27.11.2013 in respect of Unit No.“05-P5 on the 5th floor ,Block no.5 situated in “Green Tech City” at Mouza-Bajetaraf,P.S-Rajarhat,North 24 parganas, It should also not be out of place to mention here that there is a payment schedule in the allotment letter.The materials on record make it clear that the complainants have paid of Rs, 6,04,623/ (Rupees Six Lakh Four thousand Six hundred twenty three)only against the subject unit.
It is true that OP failed to construct the “Green Tech City Block-05” project till the date of filling the instant consumer case.It is well settled that after making payment of Rs, 6,04,623/ (Rupees Six Lakh Four thousand Six hundred twenty three)only as an advance payment of the consideration amount,the purchaser can not wait indefinitely for having a roof over his head.In the perspective, when the OP has failed to complete the project this itself amounts to deficiency in service.
It is admitted fact that Agreement for sale was executed between the parties of the subject unit.The project was not constructed till 2019 though the allotment letter was issued on 27.11.2013.Complainant has lost his faith and patience and cancelled the booking of the subject flat vide letter dated 23.11.2019 with a request to the OP to refund the advance money.
The OP did not deny regarding issuance of allotment letter on 27.11.2013 and also receiving payment Rs, 6,04,623/ (Rupees Six Lakh Four thousand Six hundred twenty three)only as booking money from the complainants.Thus,the complainants are consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act.
On evaluation of materials on record it is quite evident that the complainants being the “Consumer” hired the services of the OP for construction of flat and OP has failed to construct the project and thereby deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
In this regard a Judgement of the Hon’ble Delhi State Consumer Disputes Redressal Commission under reference 2022(2) CPR 137(Del.) in the matter Mrs.Jasveen Kaur v. Parsvnath Developers Ltd., Complaint Case No.1618 of 2016 decided on 05.05.2022 is also found relevant to the present context. The Hon’ble SCDRC has been pleased to observe in Para 34 of the said Judgement “ A failure of the Developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service.”
Keeping in view of the above cited Judgments and based on the fact and circumstances of the present case,we are of the considered opinion that the Complainants have established the case against the OP.
The complaint is disposed of on contest against the OP with the following direction:-
Hence,
Ordered
i).The OP is directed to refund the advance booking amount of Rs, 6,04,623/ (Rupees Six Lakh Four thousand Six hundred twenty three)only along with compensation in the form of simple interest @9% P.A in favour of the complainants from the date of issuance of allotment letter ( i.e,27.11.2013) till its realization.
ii) The OP is directed to make payment a sum of Rs,20,000/ as cost of litigation in favour of the complainants
Complainant put the order into execution, if the OPs transgresses to comply the order according to Consumer Protection Act, 2019 after the expiry of 60 days.
