Hon’ble Mrs. Dipa Sen (Maity), Presiding Member
The instant complaint is on behalf of the intending purchasers Smt. Swati Das and her husband Sri Probal Das against the developer on the allegation of deficiency in service on the part of the builder/developer in a dispute relating to housing construction.
The brief fact of the case is that being intending purchasers complainants decided to purchase one residential flat from the OP/developers and made an application dt. 29.05.2013 for booking of one residential flat at Green Tech City in Smart Home Residency. One Agreement for sale was executed in between the parties on 19.07.2013 for purchasing a flat being unit No. 1H on the first floor measuring about 650 sq. ft. (super built up area) in block No. 03 along with one car parking space. On the submission of the application dt. 29.05.2013, the complainants have paid sum of Rs. 1,00,000/- through cheque as an application money against the total consideration amount of Rs. 18,90,000/- for the said flat and car parking space (16,90,000+ 2,00,000/-). The complainant has already paid the sum of Rs. 17,87,436/- from time to time as per the payment schedule till date which have been duly acknowledged by the OPs but the construction work as per the schedule of payment did not progress and the project was delayed unnecessarily and negligently. Despite of several request and reminders of the complainant, the OP did not handover the flat till date which was supposed to be hand over within 30.06.2017 as per the contract the agreement dt. 19.07.2013. Without getting any other way complainants approach before this Commission for redressal of their grievances with a prayer for direction upon the opposite parties to deliver the possession of the flat together with one car parking space as per the schedule one and refund of excess payment of service tax along with prayer for payment of Rs. 5 lakh for indulging unfair trade practise along with another prayer for compensation of Rs. 10,000/- and litigation cost with an alternative prayer for refund of entire amount along with cost and compensation.
By filing W.V, OP denied and disputed all allegations made against them. They have categorically stated that they have no deficiency in service and the complaint made herein is frivolous, manufactured, concocted. Complainant is not a consumer within the meaning of C.P Act and the petition of complaint should be dismissed with cost. The delay for handing over the possession of the concerned flat is due to force majeure events and the OP/developer are not responsible for the said delay. As per the agreement for sale agreed between the parties it is clearly mentioned in Article No. 4 of the Agreement for Sale that the complainant did not pay instalments in spite of repeated request within the stipulated time period. It is an admitted fact that they have entered into an agreement for sale dt. 19th July, 2013 and as per the said agreement complainant was liable to pay Rs. 18,90,000/- as total consideration amount for the said subject flat. But the complainant neglected to make timely payment which delayed the progress of the project. As per article No. 4 of the agreement which deals with cancellation terms it is clearly mentioned that if the purchaser defaults to make their timely payment, shall be construed as a breach committed by the purchaser. But as a good gesture and in order to continue the business relationship the OP did not take any step for cancellation of agreement in spite of non payment of instalment amount after repeated reminder and request. The economic slowdown in respect to the infrastructure sector is beyond their control. It is also mentioned in the agreement for sale dt. 6th September, 2013 that in the event of a dispute in connection with the agreement shall be referred to an arbitration in accordance with the provision of the arbitration and conciliation Act,1996. The complainant have signed the said agreement for sale and thereby agreed upon by the terms and condition of the said agreement that there is no cause of action of the complainant against the OP and the present complaint is not maintainable either in law or in facts and thereby should be dismissed of cost.
It appears from the record that the OP files W.V on 7th September but in spite of getting opportunity no questionnaire has been filed by OP. OP files evidence on affidavit. Complainant files evidence on affidavit as well as questionnaire and reply.
The record is taken up for argument in presence of both the parties.
Ld. Advocate for the D.hr argued that as an intending purchaser the complainant has booked one residential flat at Green Tech City in Smart Home Residency being unit No. 1H, on the 1st floor measuring about 650 sq. ft. super built up area in block No. 08 Kolkata- 700135 together with one car parking space. On the date of submission of the said booking application on 29.05.2018 complainant paid sum of Rs. 1 lakh by cheque. One agreement for sale in respect of the said flat together with one car parking space is duly executed in between the parties on 19.07.2013. As per Article 9 of the said agreement the total consideration amount of the subject flat was decided as Rs. 18,90,000/-. The complainants have already made payment a sum of Rs. 17,87,436/- through different cheques and the same fact is duly admitted by the OPs. Complainants have already paid more than 90% of the consideration amount but the OP/developer failed to deliver a flat within 24 months from the date of booking as per agreement and subsequently failed to keep assurance of their own promises and did not deliver the flat within June, 2017 that can be considered as a gross deficiency of service of their part. Despite several requests and reminders of the complainant the OP on one pretext to another causing inordinate delay for the construction of the said project. However, long after three years the OP/respondent apologist for the delay and agreed to handover the flat by June of 2017. But in spite of that, delay continues and the possession of the subject flat was not handed over to the complainant.
Ld. Advocate for OP argued that due to force majeure events they could not able to complete the construction of the said flat within due period of time. The complainant did not make payment of their dues within due stipulated period of time as per agreement. Even, the total payment of full consideration amount has not paid to the OP till date. OP is ready and willing to handover the possession of the flat to the complainant after receiving full payment of total consideration amount. They have no deficiency in service.
Having heard both parties and after perusal of materials on record it appears to us that as an intending purchaser the complainant has booked one residential flat along with a car parking space as per one agreement was executed by and between the parties on 19.07.2013. The complainant has already made payment of Rs. 18,90,000/- as part consideration amount. It was agreed between the parties that the said flat along with car parking space and was supposed to be handed over within 24 months i.e. 30.06.2017. But in spite of expiry of the said stipulated period, OP did not complete the construction work and did not handed over the possession of the said flat.
Needless to say, that the parties are bound by the terms of the agreement and as such we can say, that the developer is under obligation to complete the construction within (24 + 6) months after date of agreement. It appears from page 5 para 14 that complainants have made payments of Rs. 17,87,436/- out of total consideration amount of Rs. 18,90,000/- through different cheques and the said payment was duly accepted by the OP. The OP has stated in affidavit that as a good gesture and in order to continue the business relationship the OP did not take any step for cancellation of agreement in spite of non payment of instalment amount after repeated reminder and request. Once they have admitted the payment without cancellation simultaneously they cannot deny the same on the ground of mode of delay payment. The OP has stated that due to economic slowdown and force majeure events like huge rainfall they could not deliver the possession within due period but on careful perusal of Article 9 it appears to us that only for force majeure causes 6 months grace period was allowed for delivery of the said flat. But the developer/OP did not file any paper wherefrom we can say that OP has offered possession within due period of time. On perusal of schedule II (payment schedule) it appears that a sum of Rs. 94,500/- (plus service tax) to be paid on possession. The complainants have paid more than 90% of the consideration amount and willing to make payment of the balance consideration amount. But in spite of that the possession could not be delivered till date. Regarding arbitration clause it can say that the matter has already been decided in the Apex Court and complainants have choose and only approached before this Commission not before the arbitrator. Above all the fact remains that the OP did not handed over the possession not even refund the amount after expiry of the grace period of six months after cancelling the agreement. They just simply holding the hard earned money of the complainants unethically. From the above discussion it becomes quite clear that the plea for force majeure circumstances does not stand. Hon’ble National Commission in a case in CC/1315/2018 Alok Kumar –vs- M/s Golden Peacock Residency Pvt. Ltd. has already observed that the complainant cannot be made to wait indefinitely for possession of the unit. In another judgment delivered by the Hon’ble Apex Court in Civil Appeal No. 6239,6303 of 2019 held that the developer must compensate the buyer the delay in delivery of possession of the flat.
On evaluation of materials on record it transpires that the complainant being ‘consumer’ as defined u/s 2 (1) (d) of the C.P. Act 1986 as he has hired the service of the developer after making payment of part consideration amount of Rs. 17,87,436/- in relation to housing construction but the developers failed and neglected to fulfil their part of obligations and thereby deficient in rendering service towards that complainants within the meaning of Section 2 (1)(g) read with section 2 (1)(o). Therefore the complainant is entitled to get some relief.
In view of the above discussion and considering the fact of the case the complaint case is allowed on contest against OP /developer.
Considering the fact of the case
(i)The OP (developer) are directed to deliver the physical possession of the schedule flat as per agreement dt. 19.07.2013 and register deed of execution in the name of the complainants within 60 days after receiving the balance consideration amount of Rs. 1,02,564/-. Alternatively, the OP has directed to refund of Rs. 17,87,436/- to the complainants within 60 days from the date of judgment;
(ii) The OP (developer) are further directed to pay Rs. 1,00,000/- as compensation along with litigation cost of Rs. 25,000/- within 60 days from the date of judgment;
The aforesaid amount (17,87,436/-+ 1,00,000/-+ 25,000/-) aggregating to Rs. 19,12,436/- is required to be paid within 60 days from the date of this order i.d. it shall carry interest @9% p.a. from the date of this order till the date of actual payment.
Accordingly, IA/386/2018 is also disposed of as infructuous at this stage.
