DR. INDER JIT SINGH, MEMBER

1.      The present  Consumer Complaint (CC) has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainant  against Opposite Party (OP) as detailed above, inter alia praying for:-

i)                    Refund of total amount of Rs.92,54,866/- along with 24% interest.

ii)         Rs.5000/- per day from 02.01.2015 along with 24% for delay in handing over the possession,

iii)        Compensation of Rs.20,00,000/- for mental agony,

iv)        Damages of Rs.6,00,000/- as compensation for the rental accommodation paid, commutation costs incurred and Rs.3,00,000/- towards cost of litigation.

2.       Notice was issued to the OP on 17.05.2018 with direction to file written statement within a maximum stipulated period of 45 days from the date of receipt of notice. 

3.       Briefly stated, the facts of the case are that:-

i)        Initially, Complainant booked a flat/unit named ‘Duplex Natura’ in North 24 Parganas, Kolkata, West Bengal by entering into an agreement to sell with the OP on 05.09.2013 and paid EMIs as per agreed payment plan/agreement to sell totaling Rs.47,79,220/- during September 2013 to December 2014.

ii)       Subsequently, in December 2014, OP advertised a new Independent Villas Project named “AQUA GOLF VILLA’ in North 24 Parganas, Kolkata, West Bengal (hereinafter referred to as the project).  Complainant applied for upgradation of villa in the said ‘Aqua Golf Villa’ project instead of the flat/unit of ‘Duplex Natura’ and entered into an agreement to sell on 02.01.2015 for an agreed sale consideration of Rs.1.50 crore.  The payments totaling to Rs.92,54,866/- were paid.

iii)      As per sale agreement, villa was to be handed over to the Complainant within 24 months from the date of its execution i.e. before 02.01.2017 (with a grace period of 6 months).  The construction is still not complete and possession of the villa has not been handed over to the Complainant yet.

4.       It is averred in the Complaint that:-

i)        OP by delaying the construction work and handing over the possession of the villa, has committed deficiency of service; the quality of construction of villas are extremely poor; the Complainant aggrieved by the irresponsibility of the OP, has sought refund of the payment made. 

ii)       It is alleged that OP has utilized the funds paid for the villa for some other project, and the Complainant has been subjected to unfair trade practices by the OP by deceitfully inducing the Complainant to believe and act in purchasing the villa.

iii)      It is claimed by the Complainant that Rs.92,54,866/- has been paid  as per mutually agreed payment plan opted by the Complainant.  The balance amount of Rs.57,45,134/- had to be paid to OP at the time of possession of the said villa.

5.       The OP in its written statement/reply dated 18.09.2018 stated that:-

5.1.    Complaint is barred by limitation, not maintainable on account of Arbitration Clause, Commission lacks pecuniary jurisdiction, Complainant not a Consumer, has booked flat for resale purpose/commercial purpose, there is no deficiency of service on the part of OP.  Complainant has not paid the entire consideration amount, Complainant failed to make timely payments within due date of demands/schedule III, there has been a breach of obligation on the part of Complainant, there is misjoinder of necessary parties, as agreement is signed by Mr. Vikash Singh and Barkha Chauhan but Complaint is filed by Mr. Vikash Singh and cause of action arises out of breach of contract and hence is a Civil Suit and not a consumer dispute and the remedy lies before Civil Court, delay was caused due to force majeure conditions and reasons beyond the control of OP, there has been a slowdown in the infrastructure sector, delivery of possession of unit was dependent upon terms and conditions mentioned in the agreement for sale.

5.2.    OP has denied that amount of Rs.57,45,134/- had to be paid to the OP at the time of possession of the said villa.  OP has also denied that construction work at the site is at completely standstill and that quality of construction is extremely poor, and that material used till now, are of sub-standard qualities.

5.3.    As per Article 8 of the Agreement for Sale, handing over of possession depends upon conditions.

5.4.    OP has denied having utilized funds paid for Villa in some other project.

6.       Complainant in his rejoinder dated 03.12.2018, filed in this Commission on 15.01.2019, while addressing to various pleas taken by the OP in its written statement, has stated that Mrs. Barkha Singh is wife of Complainant and  was pregnant and Complainant was already undergoing family pressures due to loans taken, doctors advised Mrs. Barkha Singh bed rest and stay away from stress, hence, Complainant did not want to bring to the notice of his wife that his hard earned money and savings were at stake and did  not want to bring her under any pressure and stress. 

7.       Evidence by way of an Affidavit was filed by the Complainant on 07.05.2019 broadly on the lines of averments made in the complaint dated 27.04.2018. Further an Affidavit of admission/denial to the documents was also filed by the Complainant on 15.01.2019. OP filed its Evidence by way of an Affidavit on 27.12.2021.

8.       Written Synopsis was also filed by both the sides.

9.       The details of the Villa allotted to the Complainant:-

10.     Heard counsels of both sides.

11.     The contention of OP that this Commission lacks pecuniary jurisdiction is not valid.  Full bench of the Commission in the case of Ambarish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure and Parikshit Parashar  Vs.  Universal Buildwell Pvt.Ltd.& Ors.  held that for the purpose of pecuniary jurisdiction, the amount of compensation claimed in the complaint would determine the pecuniary jurisdiction of the Commission. The objection that the Complaint is barred by limitation and not maintainable on account of arbitration clause, is also not accepted. The OPs have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. In this regard, attention is drawn to the orders of the Hon’ble Supreme Court in Meerut Development Authority vs. Mukesh Kumar Gupta (IV (2012) CPJ 12 decided on 09.05.2012 wherein it was held that “the failure to deliver possession of the plot constitutes a recurrent continuing cause of action.” The contention that complainant is not a consumer as he has purchased the unit for commercial purpose is also rejected. In the case of Sai Everest Developers Vs. Harbans Singh Kohli, 2015 SCC Online NCDRC 1895 decided on 21.7.2015, it was held that the opposite party should establish by way of documentary evidence that the complainants were dealing in real estate or in the purchase and sale of the subject property for the purpose of making profits.”  In the instant case, no such evidence has been adduced by the OPs in this regard.

12.     The plea of OPs that delay was due to force majeure circumstances is not valid. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure.’  It was held in this Commission order in CC No.379 of 2013 Sivarama Sarna Johnalagadda & Anr. Vs. M/s Maruti Corporation Ltd. & Anr. decided on 21.9.2021 that the complainant cannot be made to wait indefinitely for delivery of possession and the act of the OP in relying on force majeure clause while retaining the amounts deposited by the complainant is not only an act of deficiency of service but also amounts to unfair trade practice.  

13.     Reasoning given by the Complainant in his rejoinder for not impleading the second signatory to the Agreement viz Mrs. Barkha Chauhan, his wife is accepted.  As regard payments of the amount, the contention of both the sides does not appear to be correct.  The claimant has stated that the balance amount of Rs.57,45,134/- had to be paid to the OP at the time of possession of the said Villa, while OP has stated that Complainant has not paid the entire consideration amount, and has failed to make timely payments within due date of demands/schedule-III of the Agreement.  OP has denied that amount of Rs.57,45,134/- had  to be paid to the OP at the time of possession of the said villa.  A perusal of schedule-III of Agreement to Sell dated 02.01.2015, which contains the payment schedule, show that out of a total consideration of Rs.1,50,00,000/- , Rs.15,00,000/- was to be paid on possession and balance in stages as detailed below:-

As the construction is not complete and exact status of construction is not known, it is not possible to pin-point the amount, which became due from the Complainant on each of the event contained in the above table.

14.     For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for both the Parties, judgments of Hon’ble Supreme Court in various cases cited and orders of this Commission in various cases cited containing similar facts/issues, all the Consumer Complaint is allowed/disposed off with the following directions/reliefs:-

(i) The OP shall refund the entire principal amount of Rs.92,54,866/- (Rupees ninety two lacs fifty four thousand eight hundred and sixty six only) to the Complainant, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund.  The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.

(ii) The OPs shall pay a sum of Rs.25,000/- as cost of litigation to the    complainants. 

(iii) The payment in terms of this order shall be paid within three  months from today.

(iv) In case the complainant has taken loan from Bank(s)/other financial institutions and the same/any portion of the same is still outstanding,  the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.  The complainant would submit the requisite certificates from the concerned bank(s)/financial institution to the OPs four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.

15.     The pending IAs, if any, also stand disposed off.