Judgment
SHRI REYAZUDDIN KHAN, MEMBER
This is an application U/s.35 of the C.P. Act, 1986.
The fact of the case in brief is that the complainant has intended to purchase an apartment in “Highland Greens” Phase II under the registered company “Riverbank Developers Private Limited” at A.J.C Bose Road ,Kolkata -700020,P.S-Bhownipur.Accordingly the complainant applied for booking a self contained flat along with a four wheeler car parking space with a booking money for Rs,50,000/ vide cheque No.202166 dated 28.10.2014.Accordingly,the OP sent an allotment letter /Agreement for sale under Ref No.Hiland Greens Phase II/Allotment/AG/14-15/HG-2-T-16/10B6 having allotted Apartment No.10 B6 On Floor-10,HG-Tower-16 at Hiland Greens Phase II subject of payment of allotment money for Rs,4,68,698/ for a unit of saleable area of about 1060 sq.ft coupled with car parking space at the ground floor to be paid before 7th January 2015.
The complainant made the following payments on different dates to the OP
1.Rs,4,68,698 vide Cheque No, 000802 dated 06.01.2015 ,Allotment money
2.Rs,6,64,931 vide Cheque No.000804 dated 11.03.2015,1st instalment
3. Rs,1,70,742 vide Cheque No.000805 dated 02.11.2015,Electrical infrastructure and Diesel Generator Backup charges
4.Rs,5,20,365 (including interest of Rs,4,830/) dated 25.02.2016 as 2nd instalment
5.Rs,3,34,521 (including interest of Rs,330) as 3rd instalment.
The OP further asserted as to the total consideration money of Rs,36,15,000/( Price of Apartment Rs,32,25,000+ Corpus deposit ,Rs,40,000+ Covered parking space,Rs,3,50,000/)
A Tripartite agreement was executed on 06.08.2016 between the complainant,OP and the M/s Axis Bank Ltd the financial institution which sanctioned a loan amount of Rs,22,02,768 from time to time to the OP.A total of 20,33,335 was paid towards part payment to the OP.
The complainant stated that the borrower Bank recommended the TATA AIG Insurance company which issued a money receipt acknowledging a sum of Rs,12,800 from the complainant vide policy No.1901026255 against insured premises.The said insurance policy shows the period of insurance with effect from 26.08.2016.to 25.08.2026.
The complainant stated that on 16.09.2017 the OP informed the complainant through ledger showing the total cost of the Apartment with Tax being Rs,39,48,749/ while the complainant has already paid Rs,35,52,149/ and the dues amount of Rs,3,96,600/ to be paid by the complainant subject to verification proof by authentic documents.On 11.06.2018 the complainant received a letter from the OP where it was admitted their own lapses,delay,negligence with a reminder to compensate as committed by them under Clause No.11(d).The OP further committed to adjust this compensation against the complainant’s dues as handing over possession of the Apartment by more then 9 months.Later again sent letter declaring the prevailing situation to be Force Majeure owing to sudden out breaks of the Covid-19.
The complainant further stated that even after payment of almost the entire consideration money for Rs,35,52,149/, the OP continuously deferring the completion and handover of the aforesaid unit/Apartment in favour of the complainant. The Borrower Bank on 27.01.2022 sent reminder notice to submit the original property documents against the complainant’s Loan A/C within 7 days from the date of receipt of the letter.
From the conduct of the OP and facts and circumstances mentioned above it may safely inferred that gross negligence, deficiency in service and unfair trade practice established against the OP.In such a scenario the complainant firmly decided not to purchase the aforesaid apartment with Car parking space and inclined to get back his money with accrued interest.
Thus, the OP has not discharged their obligations and misappropriated money of the complainant for their wrongful gain. Such acts and omissions of the OP tantamount to unfair trade practice as well as cheating and fraud and for the misdeeds of the OP the complainant has suffered a lot. Finding no other way the complainant approached the Commission for justice with relief as detailed in the complaint petition.
On perusal of records, it appears from order no.6 dated 05.02.2024,OP failed to file their W.V in the statutory period and as such the case runs ex-parte against the OP.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OP is deficient in rendering proper service to the Complainant?
2) Whether the OP have indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
We have travelled over the documents placed on record. The complainant has filed his Affidavit-In-Chief supported by affidavit. The complainant received an allotment letter along with a General Terms and Conditions to be presumed Agreement for Sale on 08.12.2014 for purchase of a residential apartment 3 BHK Apartment No.10 B6 ON Floor-10,HG2-Tower-16 at Hiland Greens Phase II,Unit of saleable area of about 1060 sq.ft coupled with car parking space at the ground floor at a total consideration amount of Rs,39,48,749/.The complainant had paid a sum of Rs,35,52,149/ on different dates. As per the general clause 11(d) of the GTC the OP is supposed to handover the possession of the apartment to the complainant within 42(Forty Two) months from the date of issue of allotment letter i.e,08.12.2014. After lapse of more then 42 months the OP has failed and neglected to handover the subject property to the complainant and also failed to register the said property in favour of the complainant. If we look further, the complainant obtained a house loan of Rs, Rs,22,02,768 on floating rate of interest and the regular payment of EMIs,huge amount of interest put the complainant in tremendous pressure. On the other hand till date the said property has not been completed and handed over to the complainant. Further the complainant decided not to purchase the said flat due to gross negligence and defective service of the opposite party and the complaint demanded refund of the above noted amount from the opposite party. In spite of several requests the OP kept silent and did not respond to any of the letters/verbal pleadings of the complainant. The complainant has been deceived as well as they were given physical, mental and financial injury by the opposite party' is an act of criminal conspiracy, false representation and fraudulent act and defective service. It is crystal clear from the facts and circumstances of the case that there has been a deficiency in services rendered by the opposite party and the opposite party has opted unfair trade practices for selling the flat to the innocent purchaser..
The OP has repeatedly reiterated that the delay caused in this regard is due to emergence of covid-19 situation and subsequent lock down declared by both the Central and the State Government and the situation went beyond their control.
Commission expressed that the OP cannot take shelter of the “Force Majeure” Clause and the reasons cited by the OP for the delay of the project, appeared to be delaying tactics veiled as “Force Majeure” conditions and seemed to be an attempt to wriggle out of its contractual obligations. It was noted that even after receiving the substantial amount,OP failed to fulfil its contractual obligation of delivering possession of the Unit to the complainant within the time stipulated.
So, it is established that the OP has not been able to hand over possession of the subject flat to the complainant within the stipulated period as mentioned in the Allotment letter. The OP is fully aware that he is liable to pay the deposited advance amount including interest thereon to the complainant. Complainant deposited his hard earned money to the OP. The OP deliberately make their illegal gains and to deprive the complainant from his lawful right withheld the deposited amount. Thus, the OP has adopted unfair trade practice.. Complainant has filed his affidavit reaffirming the allegations. Thus, it stands proved that despite of having received Rs,35,52,149/, (Rupees Thirty Five Lakh Fifty Two Thousand One Hundred Forty Nine)only, the OP has failed to refund the said amount. In absence of any explanation for failure to comply with the stipulation of refund of deposited amount, we have no hesitation in concluding that the OP has committed deficiency in service and also has indulged in unfair trade practice.
The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated.
To get relief, the complainant has to wage a long drawn and tedious legal battle. In these circumstances, the complainant is entitled to refund of deposited amount along with compensation. and interest.
Keeping in view of and the fact and circumstances of the present case we are of the considered opinion that the Complainant has established the case against the OP. In the result, the Consumer Complaint succeeds .
Hence,
Ordered
That the Complaint Case be and the same is allowed ex-parte against the OP with the following directions:-
- The OP is directed to refund paid amount of Rs,35,52,149/, (Rupees Thirty Five Lakh Fifty Two Thousand One Hundred Forty Nine)only to the complainant with interest @ 9% calculated from the date of first instalment/payment (i.e,06.01.2015) till final realization.
- The OP is further directed to pay Rs.100,000/-(Rupees One Lakh)only to the complainant as compensation for causing harassment and mental agony..
- The OP is further directed to pay Rs.10,000/- to the complainant as litigation costs.
In the event of non compliance of the order, liberty be given to the Complainantto put the order into execution U/s 71 & 72 of the C.P. Act,2019.
The judgment be uploaded to the website of the Commission forthwith for perusal of the parties. Copy of the Judgement be supplied to the parties free of cost as per the C.P.Act
