FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The brief facts as stated in the complaint are that the OP-1 is engaged in the business of real estate including developing and construction of multi storied building. OP-2 is one of the Director of OP-1 Company. Complainants booked a residential duplex being Unit No. B, Upper Duplex, Block-17 having a super built up area of 2023 sq. ft. along with a car parking space located in the front side of the duplex unit and user right of roof/terrace of 684 sq. ft. in the project Green Tech City situation at Mouza-Bajetaraf, PS-Rajarhat within the district of 24 Pgs (N) against payment of Rs. 5,00,000/-. An agreement for sale dated 09.09.2012 was executed between the complainants and OP-1. Total sale price of the duplex and car parking space are Rs. 62,00,000/-. Under the Agreement for Sale, the OP-1 is liable to complete construction of the project and handover possession thereof to the complainants within a period of 18 months from the date of execution of the agreement dated 09.09.2012. The agreement further provided that in the event of delay in delivery of possession, the OP-1 would be entitled to a grace period of 06 months, in default the OP-1 would compensate the complainants by paying interest at the rate of 12 percent per annum over the sale price. Complainants have already paid Rs. 38,34,958/- to the OP-1 on different dates against money receipts. OPs miserably failed and neglected to perform their obligations under the Agreement for Sale dated 09.09.2012 by completing construction of the project. Complainants have all along ready and willing to pay the balance consideration amount to the OP-1. Complainants refrained from making any further payment on account of non- completion of construction of the project. Construction of the project has been completed in 2017 and despite that the OP-1 did not offer possession of the booked Unit to the complainants though the agreement is still subsisting. Despite legal notice dated 02.01.2019, the OP-1 did not response the same. Alleging deficiency in service and unfair trade practice complainants have prayed for handover physical possession of the booked unit with demarcated car parking space alternatively for refund of deposited money along with interest at the rate of 12 percent per annum, compensation and litigation cost.
Notice of the complaint was issued upon the OPs. In spite of service of notices, OPs did not file their WV. Thus, the consumer case runs ex parte against the OPs.
Sri Sourav Das, Constituted Attorney of the complainant has filed evidence supported by an affidavit. We have heard argument on merit and have also perused the record including documents annexed with the complaint petition.
The complainants made allegation that despite payment of Rs. 38,34,958/- the OP-1 did not handover physical possession of booked Duplex being Unit No. B. Upper Duplex, Block-17 having a super built up area of 2023 sq. ft. along with demarcated car parking space and roof/terrance about 684 sq. ft. at Green Tech City Project situated at Mouza-Chandpur Chapagachi, PS-Rajarhat within the district of 24 Pgs (N).
On bare perusal of the evidence and documents on record, it emerges that an Agreement for Sale dated 19.09.2012 was executed between the parties. In terms of the said agreement, possession of Unit No. B, Upper Duplex, Block-17 along with demarcated car parking space and roof/terrance is to be handed over on or before March 18, 2014. Also it is apparent from the Agreement for Sale that in the event of delay in delivery of possession, the OP-1 would be entitled to a grace period of 06 months in default they are liable to pay interest at the rate of 12 percent per annum over the sale price. Sale price of the booked Upper Duplex, demarcated car parking space and right of roof terrace is Rs. 62,00,000/- and the complainants have paid Rs. 38,34,958/- out of total sale price to the OP-1 against money receipts. Possession of the Duplex and demarcated car parking space has not been offered to the complainants within the schedule date or even the grace period of 06 months. Thus, the complainant refrained themselves from making any further payment to the OP-1. Despite demand notice dated 02.01.2019, the OP-1 did not response the said notice. Ultimately, the OP-1 completed the Duplex inhabitable and defective condition. Onus is on the complainants to establish that the booked Duplex is defective and inhabitable. There is no report and/or evidence of Civil Engineer to that effect. Thus, the allegation of the complainants is based on assumption or presumption only.In our opinion, the act of the OPs is not only an act of deficiency of service but also unfair trade practice.
Now the question which arises for our consideration is how much interest/compensation is to be paid to the complainants on the amount deposited by them with the OP-1. Though it is the complainants’ case that in the event of failure on the part of the Developer to handover the possession of the allotted Duplex and demarcated car parking space, they are liable to pay interest at the rate of 12 percent p.a. (Annexure-B). Neither the said letter dated 19.09.2012 is not signed by the Authorized Signatory of the OP-1 nor accepted by the Complainants. Thus, we do not take any judicial notice over the said letter dated 19.09.2012.
Vide letter dated 19.09.2012 (Annexure-E) the complainants are offered fixed rental of 9 percent per annum of the booked Duplex Unit No. B for a period of 03 years, handing over of possession of the aforesaid Duplex to the OP-1 for the period of 03 years on completion of the project. Complainants fail to produce any document to establish that they opt the offer dated 19.09.2012 of the OPs. Thus, the complainants are not entitled to any fixed rental of 9 percent per annum of the booked Duplex. But the complainants are entitled to get simple interest at the rate of 9 percent per annum from the respective dates of deposit till the date of handover physical possession of the booked Duplex and demarcate car parking space.
In view of the above discussion, the present consumer complaint is allowed in part ex parte against the OPs with following directions:-
- OPs are directed to handover physical possession of the booked Duplex being Unit No. B, Upper Duplex, Block-17 having a super built up area of 2023 sq. ft. along with demarcated car parking space and user right of the roof/terrace together with undivided proportionate share of land fully described in schedule-II & V of the Agreement for Sale dated 19.09.2012 on receiving balance sale price, if payable after adjustment of simple interest at the rate of 9 percent p.a. from the date of deposit till the date of delivery of physical possession of the booked Duplex and demarcated car parking space and are further directed to execute and register Deed of Conveyance in favour of the complainants. Alternatively, the OPs are directed to refund Rs. 38,34,958/- (Rupees thirty eight lacs thirty four thousand nine hundred fifty eight) only to the complainants with simple interest at the rate of 9 percent p.a. from the respective dates of deposittill the actual date of payment.
- OPs are also directed to pay Rs. 1,00,000/- (Rupees one lac) only to the complainants for unfair trade practice.
- OPs are further directed to pay Rs. 20,000/-(Rupees twenty thousand) only to the complainants towards costs of litigation.
The aforesaid directions shall be complied within a period of 08 weeks from today. It is also made clear that for non-compliance, the provisions enshrined U/ss. 71 & 72 of the Consumer Protection Act, 2019 would be also attracted.
Copy of the Judgment be supplied to the Parties as per Rules. Judgment be uploaded on the website of the Commission for perusal of the parties.
