FINAL ORDER/JUDGMENT   

SMT. SUKLA SENGUPTA, PRESIDENT

            One Mr. Debasish   Mishra and his wife Mrs. Sapna Mishra have filed this petition of complaint U/s 11 read with Section 12 of CP Act,   1986.  The fact of the case in brief is that the complainants have entered into an agreement for sale with the OP M/s Greentech IT City Pvt. Ltd.  on 28 Sept, 2013 for purchasing one flat under the name and style Smart Home, containing one bed room flat being No. 5D situated on 5^th floor measuring about 650 sq. ft (super build up area) in block No. 06, Mouza-  Bajetaraf, PS- Rajarhat, , Chaudpur, Gram Panchayat, along with proportionate, undivided share of land along with one covered car parking space with common facilities at a total consideration of Rs.  20,24,500/- (Rupees twenty lacs twenty four thousand five hundred) only out of which the complainants  have paid a sum of Rs. 4,24,000/-  as earnest money  vide cheque No 034530, 089741, drawn on  Axis Bank on 24.08.2013, 13.09.2013 respectively.  In the Agreement for Sale dated 20.09.2013, it was categorically mentioned that the OP-1 committed to provide possession of the subject flat in habitable condition along with car parking space together with common amenities and facilities within  24 months from the date of execution of Agreement for Sale  dated 20.09.2013. (Annexure-1).

            The complainant for purchasing the subject flat obtaining loan from the OP-2 to the tune of Rs. 16,20,000/- payable to the OP-1 after tendering earnest money and in that respect  two  agreement dated  24.12.2013 was executed,  one was by-partite by and between  the OP-2  and the complainants and the other one was tri-partite executed by and between the OP-1, OP-2  and the complainants which are annexed herewith as “Annexure II and III”.   It was agreed by and between the complainant and the OP-2 that the complainant will repay the loan amount along with interest in 60 EMIs @ Rs.  34,620/- per EMI commencing on and from  30.06.2016.  It is the further case of the complainant that before entered into by-partite and tri-partite  agreement. The OP-1 entered into a supplement agreement dated 16.12.2013 with the complainants  wherein the OP-1 committed to “PEMI” which means payment of EMI immediately prior to date of commencement of EMI till date of handing over possession. The agreement is annexed as “Annexure IV”.  

It is alleged by the complainant that  till date of filing of this case,  the OP-1 did not handover the possession of the subject flat rather they paid the EMI irregularly in the OP-2 bank as a result debit balance of loan amount in the names of the complainant is increasing on the head of loan interest on 05.01.2019. The complainant informed by the Branch Manager of Bhawaipore Branch, there was a debit balance amounting  to Rs. 81,451/- interest outstanding in the loan account in the name of the complainants  by email which is annexed as “Annexure V”. The OP-1 failed to keep its commitment that the possession of the subject flat would be handed over to the complainant within 24 months from the date of agreement dated 23.09.2013 . The OP never served any letter or notice upon the complainants but it took away the entire loan sanction amounting of 16,20,000/- from the OP-2  directly as per terms of the tri-partite dated  24.12.2013. Such failure of the OP-1 should be considered  deficiency  in service as well as unfair trade practice. On repeated occasion the complainants requested the OP-1 to complete the project and handover the possession of the  subject flat to them but the OP-1 did not pay any heed to their request rather they were harassed and neglected by the OP-1 which caused mental pain and agony to them.   Hence, the complainants decided not to take subject flat and decided to cancel the Agreement for Sale because there was no  fault on the part of the complainants on payment of the consideration  money to the OP-1 of the subject flat but the OP-1 defaulted to complete the project and handed over the subject flat to the complainants. So, the question of deduction of cancellation charge amounting to  Rs. 1,00,000/-  does not arise at all.  Hence, this case is filed by the complainant with a prayer to give direction the OP-1 to refund earnest money amounting to Rs.  4,24,000/- only along with interest @ 24 % p.a.  on the amount  from the date of deposit till realization to the complainants and also give direction to the OP-2  to place the update statement of loan account which was sanctioned in favour of the complainant on 19.11.2013 by giving direction upon the OP-1 to pay the same.

The complainants  also prayed for  compensation of a sum of Rs. 1,00,000/- for mental pain and agony from the OP-1 along with ligation cost of Rs. 20,000/- only.

The OP-1 M/s Greentech IT City Pvt. Ltd.  has contested the claim application  by filing a WV  denying all the material allegations levelled against It. 

It is the case of the OP-1 that the claim  application as filed by the complainant  barred by limitation  and bad in law.  It is baseless false and fabricate because there was no deficiency in service on the part of the OPs.  

It is also denied by the OP-1 that the complainant is a consumer within the meaning of CP Act, 1986 because the subject flat was for resale and also for commercial purpose.

            The OP-1 was also challenged the pecuniary jurisdiction of this forum in order to try this case.  From the WV of the OP-1, it appears that there was an agreement for sale in respect of the subject flat in and between the complainant and the OP-1. It is alleged by the OP-1 in his WV that the complainants neglected to make timely payment and by such conduct they proved there was a breach of obligation on the part of the agreement which caused the delay of progress of the subject project.

            It is further stated by the OP-1 that the infrastructure sector throughout India including West Bengal is going through a very bad period and has been slow down in the overall development which has adversely affected the progress of the project.  It is admitted by the OP-1 that in the said Agreement for Sale, it was agreed by the parties that in the event  of handover the possession of the subject flat which  is delayed due to force majeure events for which the owners/developer cannot be held responsible.

            It is stated by the OP-1 in its WV that it was agreed in the agreement for sale that any sort of dispute arising in connection with the impugned agreement for sale in between the parties that shall be refund  to arbitration as per provision of Arbitration and Conciliation Act, 1996 but the complainants did not approach the arbitration but filed this case before this forum. So, this case is not tenable by this forum.  Moreover, the delay has caused due to natural calamities such as flood and climatic change. The progress of work has been affected due to continuous rain and flood. Sudden demonetization also added further delay.  It is further stated by the OP-1 that the complainants are in breach of obligation to be fulfilled which they had agreed upon while signing the agreement. So, there is no cause of action of the  complainant to file this case. Thus, the petition of complaint is not maintainable either in law or in fact and are liable to be dismissed.

            On a close scrutiny of materials on record,  it appears that the OP-2 did not appear in this case and filed the WV.  Thus, the case do run exparte against the OP-2 vide order dated 16.01.2020.

In view of the pleadings mentioned above, following points of consideration are as follows:-

1. Is the case maintainable in its present form?
2. has the complainant any cause of action to file the case
3. Is the complainant a consumer?
4. Is there any deficiency in service on the part of the OPs?
5. Is the complainant entitled to get relief as prayed for?
6. To what other relief or reliefs is the complainants entitled to get?

Decision with Reasons

All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.

  On careful perusal of the materials on record and considering the facts  and circumstances of this case and also considering  the evidence on record,   it appears that the complainants have entered into an agreement for sale dated  20.09.2013 with the OP-1 for the purpose of purchasing the subject flat being No. 5D situated on 5^th floor measuring 650 sq. ft. in Block No. 6 along with covering parking space at a consideration of Rs. 20,24,500/- only. It is also admitted fact that  the complainants have paid a sum of Rs 4,24,000/- only as earnest money to the OP-1 vide cheque No.  034530, 089741 drawn on Axis Bank. From which, it is crystal clear that the complainants are the consumer as per provision of 2 (d)  of CP Act, 1986 and the OPs are the service provider.

 On a close scrutiny of material as well as evidence on record, it appears that the complainants partly paid a sum of Rs.  4,24,000/- out of total consideration of Rs. 20,24,500/- for the subject flat but the OP-1 failed to handover the possession of the subject flat to the complainants within the time as per Agreement for Sale dated 20.09.2013. Hence, cause of action arose on and from 12.01.2018 when the OPs did not reply to the complainants anything in respect of handing over the subject flat till 12.11.2018 and it is/was  continuing till filing of this case.

Neither of the parties has challenged that this forum has no jurisdiction either pecuniary or territorial to try this case.  Moreover in order to discharge, it’s  judicial obligation and responsibility  the forum carefully considered the position  of law in respect of its territorial or pecuniary jurisdiction regarding the subject matter of this case and found that the case is well within the territorial as well as pecuniary jurisdiction  of this forum and the complainants  have filed this case within the period of limitation.   

In view of discussion made above, it is held by this forum that the case is maintainable in the eye of law and there was sufficient cause  of action to file the case  and the complainants are the consumer within the ambit of CP Act 1986 and the OPs are the service provider.

Let us discuss whether there is /was any sort of deficiency in service on the part of the OP-1 as alleged by the complainants.

On careful perusal and consideration of the materials as well as evidence on record, it is revealed that admittedly,  the complainants and the OP-1 M/s Greentech IT City Pvt. Ltd.  have entered into Agreement  for Sale dated 20.09.2013 for purchasing the subject flat being flat No. 5D, on the 5th floor of the premises  in question on  5^th floor measuring about 650 sq. ft. in Block No. 6 along with covering parking space at a total consideration of Rs.  20,24,500/- only as mentioned in the petition of complaint.

 It is also admitted in WV by the OP-1 that even on recieved of a sum of Rs. 4,24,000/- from the complainant out of total  consideration  money of Rs 20,24,500/-  of the subject flat in question. The OP-1 M/s Green tech IT City Pvt.  Ltd.  failed to handover the possession of the subject flat with covered car parking space as mentioned above to the complainant within specified period  as per agreement for sale. From the evidence on record as per agreement for sale, (annexure 1). The complainants have paid Rs. 4,24,000/- to the OP-1 vide cheque No. 034530 089741 on Axis bank vide dated 24.08.2013 and 13.09.2013 as earnest money out of total consideration of Rs. 20,24,500/-.  The complainants after laps of the specified period  tried to make contact with the OP-1 but in vain till 12.11.2018.  Hence, the instant case has been filed by the complainant before this forum. From which it is revealed that the OPs even on received of part payment of Rs 4,24,000/- out of the total consideration failed to handover the possession of the subject flat along with covered car parking space  as per agreement for sale (Annexure-1) to the complainant within the  specified period  and did not  communicate the complainants  to that effect. Rather, the OP-1 in his WV as well as E/chief took the plea as the cause of delay that due to force mejure the OP-1 could not be able to complete the subject flat and also count not be able to handover  the possession of the subject flat and car parking space to the complainant within the time.  Rather the contesting OP-1 alleged that the complainants have no cause of action to file this case which has no basis at all.  On the contrary, the complainants have stated in their petition of complaint as well as evidence that for the purpose of purchasing the subject flat and car parking space they have taken bank loan from the OP-2. So, they have suffered from financial loss for the OP-1.

            This Forum is also of same view with the Ld. Advocate for the complainants who argued that the OP-1 with ulterior motive did not co-operate with the complainants and did not handover the possession of the subject flat and car parking space within the specified period and put the complainant in financial stringency ,  harassment mental pain and agony. Such conduct of the OP-1 should be considered as the deficiency in service and negligence.   

In view of discussion made above, this forum is of opinion that  being a consumer within the ambit  of CP Act 1896 the complainants could  be able to  prove their case against the OP-1 beyond  all reasonable doubts.

            The complainants have prayed for giving direction to the OP-1 to adjust loan amount with the OP-2/bank submitting interalia that the OP-1 directly paid the amount of Rs. 4,24,000/- to the OP-2/bank towards the loan account of the complainant. This Forum after careful consideration of the entire facts and circumstances as well as evidence on record is not in a position to allow this prayer of the complainants.   The complainants have taken loan from the OP-2. So, it is their responsibility and liability to re-pay the same.

On the basis of discussion made above, it is held by this forum that the complainants have successfully proved their case beyond all reasonable doubts against  the OP-1 and are entitled to get the decree  as prayed for in part.

All the points of consideration are considered and decided in favour of the complainant.

The case is properly stamped.

Hence,

Ordered

 that the case be and the same is decreed in part on contest against the OP-1 and ex parte against the OP-2 with cost of Rs. 5,000/-.

The OP-1  is directed to refund the earnest money amounting  to Rs. 4,24,000/- to the complainants as paid by them for the subject flat and the   car parking space  along with interest @ 9 % from the date of filing of this case till realisation within 45 days from this date of order .

The OP-1 is further directed to pay a sum of Rs. 30,000/- towards compensation to the complainant for harassment, mental pain and agony along with litigation cost of Rs. 5,000/- within 45 days from this date of order , id the complainants will be at liberty to execute the decree as per law.

Copy of the judgment be supplied to the parties free of cost as per mandate of the CP      Act. The Judgement be uploaded forthwith on the website of the commission for perusal of the parties.