FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

The short facts given rise to the present case are that the Complainants had applied for booking of a 3BHK and a covered four wheeler car parking space in the project Highland Greens II (Tower No. 3 to 20) of the OP. Allotment Letter dated  04.05.2015 was issued to them. Complainants were allotted flat being No.  10B6 on the 10^th floor of Tower 5 at Highland Greens, Phase II. The total Sale price of the flat and covered  car parking space is Rs. 36,15,000/- and the Complainants have paid total sale price  of Rs. 36,15,000/- with the OP in addition to Electrical Infrastructure charges, DG Back up charges and Registration including Stamp Duty charges. As per General Terms and Conditions, possession of the flat and car parking space is to be handed over within 42 months from the date of allotment i.e. 04.05.2015. But the OP measurably failed to comply such condition. There is a specific terms and conditions that the OP shall pay compensation to be calculated  at the rate of Rs.  12.50 per sq. ft. of the chargeable area of the flat  per month from the schedule date of possession till the  actual date of possession to such of the allottees who have not committed any default or delay. Complainants availed House Building Loan from the ICICI Bank Ltd. and paid the entire sale consideration amount including other charges to the OP. OP accepted and received the entire sale consideration amount. Thus, the Complainants are entitled to get compensation  at the rate of 12.50 per sq. ft. of the chargeable area including Electrical Infrastructure charges, DG Back up charges and Registration including Stamp Duty charges. There were several exchange of emails between the parties but the OP finally denied to pay any compensation at the  agreed rate in terms of GTC on the ground that the Complainants are defaulter and/or delay is making payment vide email dated  23.09.2020. Alledging Deficiency in Service And Unfair Trade Practices on the part of the OP, Complainants have prayed for compensation charges  at the rate of 12.50 per sq. ft. of the chargeable area including interest with regard to deposited amounts like  including Electrical Infrastructure charges, DG Back up charges and Registration including Stamp Duty charges and litigation cost.

Upon the notice of the complaint, the OP did not appear and file Written Version denying the allegations made in the complaint Vide order dated 10.01.2022. This Commission closed the right of the OP to file WV and the case has proceeded ex parte against them.

In support of their claim, the Complainant No. 1 Mrs. Debapriya Bhowmick tendered evidence and also relied documents annexed with the complaint petition. We have heard argument on merit and have also perused the record. The Ld. Advocate for the Complainants vehemently argued and reiterated the facts.

The point that falls for our consideration is whether there is any deficiency in service on the part of the OP/builder and if so, how much the Complainants are entitled for compensation.

We note, admittedly that the Complainants have paid the entire sale consideration amount for their  flat being No. 10B6 on the 10^th floor at Highland Greens Phase II including a covered car parking space in pursuant to the General Terms and Conditions. The promise time for delivery of possession of flat was 42 months from the date of allotment i.e. 04.05.2015  but the OP did not offer possession of the flat and  covered car parking space. On the contrary, the OP collected a sum of Rs. 3,20,000/-  and Rs.  1,70,742/- respectively  on account of registration, stamp duty, legal charges,  electrical infrastructure charges and DG Back up charges. It is true that there were exchange of  emails between the parties and ultimately, the OP denied to pay interest in terms of GTC on the ground of delay payment of installments.

We will like to refer to the clause 11 of the General Terms and conditions below for ready reference

POSSESSION:-

1. Subject to force majeure RDPL will endeavour to give possession of the Apartment to the allottee(s) within 42 months from the date of allotment of the Apartment.
2. Force majeure, inter alia, include that will not be limited to non-availability or irregular availability of building materials, water supply, electricity other supplies or utilities, strike, slow down by/disputes within the contractor/ construction agencies employed/to be employed, war, lockout or civil commotion, terrorist action, litigations, acts of God, any act, any notice, order, rule or notification of the government and/or any other public or competent  authority or any change  in the policy of the government/statutory, bodies action or inaction or omission of any person or authority delay in certain decisions/grant of clearances by the statutory bodies and such other reasons beyond the control of RDPL.
3.  RDPL  as a result of such a contingency arising reserves the right to alter or vary these General Terms & conditions or if the circumstances so warrant, RDPL may suspend the fulfillment of its obligations for such period as it may consider expedient and the allottee agrees not to claim compensation of any nature whatsoever for the period of such suspension.
4. In the event, RDPL does not endeavour to give possession of the apartment to the allottee within the stipulated time [subject to force majeure as started in paragraph Ii (a) and (b)], then RDPL will pay compensation to be calculated  at the rate of Rs. 12.50 per sq. ft. of the chargeable  area of the Apartment per month, effective  from the schedule date of possession till the “date of possession” (as defined hereinunder) to such of the allottees who have not committed any default or delay.

It is apparent as per the terms of clause II (a) of the General Terms & Conditions, the possession of the flat and car parking space is to be delivered within 42 months from the date of allotment. Allotment Letter was issued on 04.05.2015 to the Complainants. The OP never offer possession of the flat and car parking space within 42 months to the Complainants.

We find that force majeure clause mentioned in the General Terms & Conditions is totally untenable. The OP has failed to place any evidence on record to prove that the reasons of delay was beyond their control. Complainants cannot be made to wait indefinitely for delivery of possession. Complainants have not committed any default or delay in making payment. The OP accepted and received instalments amount without any objection. Act of the OP in relying on Force Majeure clause  while retaining entire sale  consideration  amount  deposited by Complainants, is not only act of deficiency in service but also of unfair trade practice.

In the light of the above discussion, we find both deficiency in service within the meaning of Section  2 (11) and unfair trade practice within the meaning of section  2 (47) of the Consumer Protection Act,  2019 to be well and truly evident on the part of the OP.

In remedy, it would be just and equitable to direct the OP/Builder to pay a sum of Rs.  4,77,000/- being the amount equivalent to the contractual  compensation  to the complainant   at the rate of  Rs. 12.50  percentper sq. ft.  of the chargeable area of the flat measuring  1060 sq. ft. amounting Rs.  13,250/-  per month  on and from  08.04.2018 till the date of payment as per General Terms & Conditions. OP is also directed to pay interest as promised  at the rate of 12  percentper annum on Rs. 3,20,000/-  paid by the complainants on account of registration, stamp duty and legal charges. OP is further directed to pay litigation cost of Rs. 20,000/- to the Complainants. The aforesaid direction shall be complied within a period of 08 weeks from today. Failing which the Complainants may file appropriate application   U/s 72 of the Consumer Protection Act, 2019.

Thus, the consumer complaint is allowed in part ex parte against the OP.

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