FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is a petition of complaint filed by the complainants U/s 35 of the CP Act 2019.
The fact of the case in brief is that the complainants being the bonafide and law abiding citizen of India and also intending purchasers decided to purchase a 3 BHK apartment from the OPs 1 to 3 . The OP-1 is Prop. of M/s River Bank Development Pvt. Ltd. and OPs 2 and 3 are the employees of the OP-1.
It is further stated by the complainant in their written complaint that being intending purchasers, they entered into a contract through an application form being No. 201807 received the allotment dated 08.12.2014 for sale of the subject flat situated on the 14th floor, 3 BHK Apartment No. 14B-5, HG2, Tower-4, Highland Green Phase –II, measuring 1060 sq. ft. with a covered car parking space along with common facilities and amenities together with undivided proportionate share in the land beneath.
The complainants further stated that the total consideration of the said flat was of Rs. 38,81,649/- only and it was agreed that the subject flat shall be delivered to the complainants within 42 months from the date of contract by the OPs . On the date of execution of allotment , the purchasers paid Rs. 50,000/- to the developer only and the balance amount of Rs. 38,31,649/- was paid by them according to demand letters sent by the OPs. The complainants further stated that it was specifically recorded in general terms and conditions that on the event of failure to handover possession of said flat in habitable condition within 42 months. The developer and on the contrary of the purchaser also agreed to pay banking interest if they neglect to pay balance as per payment schedule and to that effect the complaints have paid from time to time an amount of Rs. 38,81,649/- by cheque to the OP-1 and in respect of receiving full amount , the OPs failed and neglected to handover the subject flat to the complainants and also failed to execute the deed of conveyance of subject flat in favor of the complainants. It is alleged by the complainants that they were restrained by the OPs to visit the subject property.
It was agreed by the OPs in their terms and conditions that if they would fail to handover the subject flat to the complainant, they will give compensation @ 12 .50 per sq ft. of the chargeable area of the Apartment per month.
It is further case of the complainants that on several occasion they approached the OPs to handover the possession of the subject flat and also execute the deed of registration but the OPs did not pay any heed to their request which caused harassment, mental pain and agony to the complainants and that is also the deficiency in service on the part of the OPs ultimately, without having any other attentive, the complainant served a legal notice dated 05.02.2020 to the OPs with a request to handover the possession of the subject flat in favour of the complainants. On receipt of such legal notice, the OPs replied on 12.02.2020 that they shall handover the possession of the subject flat to the complainant before the month of June, 2020 and compensation for delay in handing over the possession of subject flat shall also be provided to the complainants. Again on 15.07.2020, the authorized signatory of the OPs issued a letter regarding information of extension of project , completion time granted by competent authority and the same is /was erroneous. There is/was no legal entity in the eye of law .
It is alleged by the complainants that the said letter is also vague and there was no whisper regarding the specific date of handing over the possession of subject flat to the complainants.
The complainants further stated that it was not possible for them to wait for indefinite period for getting possession of the subject flat. Hence, the instant case is filed by the complainants with a prayer to give direction to the OPs for refund of total consideration money of Rs 38,81,649/- paid by the complainants for the subject flat along with interest @ 18 % pa till the actual payment.
It is also prayed by the complainants to give direction to the OPs to pay an amount of Rs. 7,00,000/- as compensation for unfair trade practice, deficiency in service , harassment and mental pain along with litigation cost of Rs.50,000/-.
The OPs have contested the claim application by filing the WV denying all the material allegations levelled against It.
It is the case of the OPs that this commission has got no jurisdiction to try this case and the claim application is not maintainable before this commission because the complainants are not the consumer within the meaning of CP Act 2019.
It is alleged by the contesting OPs that the complainants have suppressed the materials fact and they did not come in this forum with clean hand. They have no cause of action to file this casa because the contesting OPs neither supplied any defective goods to the complainants nor there was any deficiency in service on their part.
It is further stated by the OPs that admittedly, the complainants booked an apartment being No,. 14B-5, HG-II tower-4 at Highland Green Phase-II. The subject apartment was allotted in favour of the complainants vide allotment letter dated Dec 08th , 2014. The general terms and conditions of the contract also formed a part of such allotment letter and that was accepted by the complainants by keeping their signature. So, both the parties are bound by the terms and conditions of such contract.
It is further admitted by the OPs that the OP-1 has delayed in handing over the possession of said apartment for which they are ready and willing to pay compensation as per Provisions of GTC Clause 11 (a) and 11 (b) of GTC.
It is further stated by the contesting OPs that they shall deliver the possession of subject apartment within the period of 42 months subject of foremajeure and force majeure shall include anything which is not controlled by the contesting OPs, which they informed the complainants vide letter dated 23 Sept, 2020 (Annexure-A). So, they had no intention for delay and default on their part. So, question of paying compensation to the complainants does not arise at all.
It is further stated by the OPs that due to various reason beyond the control of the OPs to handover the possession of the subject apartment got delayed and they prayed for extension of period of said project under the Provisions of the West Bengal Housing Industries Regulatory Authority and the rule framed thereunder. The handing over of the possession of subject apartment to the complainants is also delaying due to pandemic situation from which it is crystal clear that there was no deficiency in service on the part of the OPs.
It is further case of the OPs that the OP-1 company vide its letter dated 29 Dec, 2020 informed the complainants about the status of subject apartment and its expected delivery date of possession.
It is alleged by the OPs that the complainants have no cause of action to file this case and this case is liable to be dismissed.
In view of the above fact and circumstances, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- Has the complainant any cause of action to file the case?
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
From the materials on record, it is found that this commission has ample jurisdiction both territorial and pecuniary to try this case.
Admittedly, the complainants booked the subject 3 BHK apartment being Apartment No. 14B-5, HG-2,Tower-4, on the 14th floor, Highland Green Phase-II measuring about 1,060 sq. ft. with a covered car parking space along with common facilities and amenities together with undivided proportionate share in the land beneath which was allotted in favour of the complainants vide an allotment letter dated 08.12.2014 along with General Terms and Conditions which formed a part of allotment letter. The complainants entered into such agreement by putting signature and is bound by the terms and conditions of the same.
From the materials as well as evidence on record, it is also proved that the complainants paid a sum of Rs. 38, 31,649/- towards the consideration money of the subject apartment though the OPs have disputed the total consideration amount of subject apartment. The OPs stated that it was Rs. 41,86,066/- only instead of Rs. 38, 81,649/- and a sum of Rs. 3,04,417/- is due but the OPs failed to prove the same by adducing cogent evidence rather from the invoices as submitted by the complainants along with the petition of complaint and also from the payment statement as submitted by the complainants, it is crystal clear that the complainants paid a sum of Rs. 38,81,649/- in total to the OP-2 towards the consideration money of the subject apartment as mentioned above.
Whatever may be from the admission of the OPs, it is palpably clear that the complainants have agreed to purchase the subject apartment and they paid a sum of Rs. 38,81,649/- either the entire consideration or part consideration which ever may be it is fact and proved that the complainants is a consumer within the amit of CP Act 2019.
From the materials and evidence on record, it is further proved that the OPs failed to handover the possession of subject apartment as mentioned in the petition of complaint with in statutory period as per terms and conditions and the complainants on several occasions requested the OPs to handover the possession to them but the OPs neglected and did not take care about the request of the complainants and failed to handover the possession of subject apartment in time even on receipt of the legal notice dated 05.02.2020 from the complainants then without having any other alternative, the complainants have filed the petition of complaint. So, sufficient cause of action is/was before this commission to get relief there for the complainants to file this case and they have filed this case within the period of limitation.
In sum, the case is well maintainable in the eye of law.
Let us discuss, whether there was any sort of deficiency in service on the part of the OPs or not.
From the evidence as adduced by the OPs in this case and also from the context of their WV as well as written argument, It is revealed that the OPs have taken the plea of force majeure of pandemic situation but from the materials on record, it is proved that the subject apartment as mentioned above was allotted to the complainants on 08.12.2014 and the complainants have paid the consideration amount of Rs. 38,81,649/- to the OPs . The OPs received the same amount which is proved from the documents as submitted by the complainants and which is admitted by the OPs in their WV evidence and written argument. So, if the receipt of consideration money from the complainants did not prevent the OPs by force majeure then how it is believable that the handing over of the possession of the subject apartment as mentioned in the petition of complaint and WV filed by the parties to this case could be delayed because the pandemic situation started in India in the month of February/ March 2020 but the subject apartment was allotted to the complainants on 08.12.2014 and the OPs were agreed to hand over the same to the complainants within 42 months from the date of allotment. So, question of force majeure caused by pandemic does not arise at all in this case. Rather, the OPs have neglected the repeated request of the complainants for handing over and registration of deed of conveyance of the subject apartment in favour of them and from evidence on record and also from the argument as advanced by the OPs, it is palpably clear that they have neglected to perform their duties and responsibilities towards the intending purchasers intentionally and did not handover the possession of the subject apartment in favour of the complainants in time even on receipt of full consideration amount, the OPs have also taken the plea that the valuation of subject apartment was not Rs. 38,81,649/- rather it was the total consideration of Rs 41,86,066/- but the OPs have failed to prove the same by adducing cogent evidence. On the contrary, the complainants could be able to prove their case against the OPs by adducing sufficient believable evidence. From which it is proved that the OPs even after receipt the full consideration money of the subject apartment neglected to hand over the same to the complainants within specified period as per terms and conditions of the allotment agreement/allotment letter from which it is revealed that there was deficiency in service, harassment and negligence on their part.
Hence, in view of discussion made above , this commission is opined that the OPs failed to handover the possession of the subject apartment and also to register the same in favour of the complainants within the specified time as per terms and conditions of the allotment letter/allotment agreement which should be considered as deficiency in service on their part and for such conduct they would be liable to pay compensation to the complainants.
On the basis of discussions made above, this commission is of view that the complainants could be able to prove their case against the OPs beyond all the reasonable doubt and are entitled to get the relief as prayed for.
All the points of consideration are considered and decided in favour of the complainants.
The case is properly stamped.
Hence,
Ordered
That the case be and the same is decreed on contest against the OPs with cost of Rs. 5,000/-.
The complainants do get the decree as prayed for.
The OPs are directed to refund the total consideration amount of subject apartment as mentioned in the petition of complaint amounting to Rs. 38,81,649/- (Rs. thirty eight lacs eighty one thousand six hundred forty nine) only paid by the complainants either jointly or severally with an interest @ 9 % p.a. from the date of filing of this case till realisaiton within 45 days from this date of order.
The OPs are further directed to pay compensation of a sum of Rs. 50,000/- (Rupees fifty thousand) only to the complainants either jointly or severally within 45 days from this date of the order along with litigation cost of Rs. 10,000/- (Rupees ten thousand) only, i.d. the complainants will be at liberty to execute the decree as per law.
Copy of the judgment be uploaded forthwith on the website of the commission for perusal.
