HON’BLE MR. NITYASUNDAR TRIVEDI, MEMBER
This is a very uncommon type of a consumer dispute filed before this Consumer Disputes Redressal Commission of the State Level relating to flat purchase, we have seen consumer disputes arising out of a flat purchase alleging handing over flats many years after agreed period, alleging getting less square ft. flat, handing over of the flats using low quality materials, getting flats in ground floor through booked for 2nd floor, getting flat without car parking, lift, getting flat towards west aside through paid for east side etc. etc.
This dispute is an unthinkable typed one. Not getting flat at the vicinity of Sealdah, Kolkata 700009 (P.S. Narkeldanga) which was agreed upon in between the complainant of this case Mr. Arjun Mohinta of Ballygunge Circular Road an ex Army (Kolkata 700019) and the OP of this case (M/s. Ideal Heights Pvt. Ltd & M/s. Supernova Pvt. Ltd. on 30.05.2010, was offered flat at Rajarhat (Kolkata-700161). M/s. Supernova Pvt. Ltd. was the Vendor and M/s. Ideal Height Pvt. Ltd. was the Developer in the agreement and the instant complainant Mr. Arjun Mahinta was the purchaser for a residential flat of 825 sq. ft. super built up area being Unit No. 18B on the 18th floor in the Block named Cirrus with one car parking space (B-39) through a Notarised agreement, Mr. Samir Bhattcharyya being the Notary Public, on payment of Rs.51,24,250/- (Rupees fifty one lakh twenty four two hundred fifty) only in several instalments of varied amount.
The agreement was exhausted and elaborate with a clause to deliver possession within 42 months of commencement of construction (01.10.2013) with six months grace period. That meant the final date of handing over of the flat was 31.09.2017.
In the year 2016 (on 25.05.2016 to be precise), being aggrieved for non-receipt of any correspondence from the end of the M/s. Ideal Heights Pvt. Ltd., the complainant ventilated his grievance through e-mail. Subsequently, on 14. 06.2018, the complainant sent a letter of an Advocate (Mr. Nirmal Kumar Maity) alleging unfair trade practice on the part of the developer (non-handing over of flat within agreed period). By this time Rs.23,58,456/- (Rupees twenty three lakh fifty eight thousand four hundred fifty six only) was paid by the complainant who made a physical visit of the construction site and found the construction work was stopped. The Developer through letter dated 14.12.2018 comprising of 6 paragraphs replied to it. In the 3rd paragraph of that letter it was stated by the Developer: “While our construction work was in progress, we had been stopped by Kolkata Municipal Corporation for some unknown reason which is beyond our control”. It was also stated in that letter that they would refund the booking amount in case the agreement is cancelled. Some other flats developed by them in other projects was offered.
The complainant was not agreed to such offer as the offer was of flat being provided of equal size and parking space at projects other than Sealdah. Accordingly, CC/436/2019 was filed on 26.06.2019 by this complainant demanding immediate handing over the flat and paying an amount of Rs.5,00,000/- as compensation for mental agony, harassment and litigation cost expenses against the Developer as OP No. 1 and Vendor as OP No. 2.
The two OPs contested this case by submitting written version through two separate Vokalatnama in favour of the same Advocates stating that the complaint is not maintainable, filed with mala fide intentions, frivolous and speculative and claimed dismissal of the complaint. Their stand was as the complainant did not cancel the agreement and waiting for getting delivery of possession, the complainant is not entitled to any compensation. They agreed, there was no wilful negligence on the part of the OPs who tried their best to restore the hindrances of continuing construction. They stated they were willing to offer flat and parking space of same specifications in some other projects to which the complainant did not give any response. Hence, there was no wilful fault. After that the complainant filed evidence against which the OP filed questionnaire. The complainant filed reply. The OPs filed evidence on affidavit. The complainant filed questionnaire and against that the OPs filed reply. Thereafter, both the parties filed BNA. It was followed by final hearing.
During final hearing, the complainant said through his Ld. Advocate that he is not willing to accept any flat excepting agreed site at Sealdah in liew. The Ld. Advocates of the OPs agreed receiving Rs.23,58,456/- (Rupees twenty three lakh fifty eight thousand four hundred fifty six only) and stated since the project has been stopped by the KMC. Authority, there is no fault on their part. They proposed a flat at Rajarhat (New Town, Kolkata) is steal of flat at Sealdah to which the complainant did not agree.
But on perusal of Annexure-B to the W/V of the OPs it appears this cited Annexure-B is green signal of continuing construction subject to drainage connection and water supply connection.
The plea of failing to complete the project for KMC’s stoppage notice in W/V was just a claim not supported by proof.
Hence, this complaint petition is allowed.
It is,
Accordingly,
O R D E R E D
The OP No. 1 & OP No. 2, jointly and severally will pay the amount of Rs.23,58,456/- (Rupees twenty three lakh fifty eight thousand four hundred fifty six) only being the amount paid by the complainant along with litigation cost of Rs.10,000/- (Rupees ten thousand only) and compensation cost of Rs.2,00,000/- (Rupees two lakh only) for mental pain and agony and anxiety within 45 days of this order and interest @ 7.5% per annum is also to be paid on payment of Rs.23,58,456/- (Rupees twenty three lakh fifty eight thousand four hundred fifty six) from the respective dates of payment made by the complainant.
The complainant will be at liberty to put this order into execution if this order is not complied within 45 days.
Let a copy of this judgment be made available to the parties free of cost.
