Ld Advocate for the party is present. Judgement is ready and delivered in open Commission.

BY -   SRI.  SAURAV CHANDRA, MEMBER

1. Brief facts of the Complaint case is that the Complainant is a Senior Citizen who upon convinced with the advertisement published in the News Papers and Electronics Medias by the Opposite Party No.1 and Opposite Party No.2 as well (represented as Authorized Signatory on behalf of the Opposite Party No.1), agreed to purchase a 419 Sq. Ft. Covered Area 2BHK Flat in Prince Town Platinum housing project at 2^nd Floor, Block No.P-4 of Mouza: Hatisala, J.L No.9, Police station: Kolkata Leather Complex under Beonta 2 No Gram Panchayat in 24 Parganas (South), West Bengal along with 12.5 Sq.Mtr. Open Car Parking Space, Common Areas, Other Facilities and Amenities in the undivided proportionate area of the said building at a total consideration of Rs.12,79,830.00 vide a Notarized Agreement for Sale executed by and between the parties on 22^nd Day of October’ 2017.
2. In the Serial No.10 at Page No.6 of the Terms & Conditions of Application Form No.PTP/2675/2016, dated: 21.10.2016 for Provision Allotment of a Flat in the Usashi Prince Town housing project, “The developer will make full endeavor to provide possession by 40 months from the date of execution of the agreement subject to force majeure.”

3. In Agreement for Sales at Page No.20 of Clause – ‘PERIOD OF CONSTRUCTION OF UNIT’ “The Designated Unit described in Schedule hereinabove written shall be constructed and completed within the possession of the Flat / Unit / Bunglow / Car Parking Space will be handed over within 40 (forty) months from the date of execution of this Agreement for Sale along with major amenities subjected to force majeure.”

4. Out of the total consideration of Rs.12,79,830.00, the Complainant paid the amount as per the following modes :-

5. The Agreement for Sale has been executed by and between the parties on 22.10.2017 and therefore, the due date for delivery of possession of the said property was 21.02.2020 i.e. within 40 Months from the date of execution of this Agreement. But, unfortunately the Ops not given any possession of the flat even deliberately and intentionally not started any construction work of the said project in-spite of several requests of the Complainant which tantamount to fraud and Unfair Trade Practice.

6. The Complainant cited three reported judgments in the submitted Brief Written Notes on Argument (WNA) as follows :-

1. Narne Construction Pvt. Ltd. & Others – Vs. – Union of India & Others. Hon’ble Supreme Court of India – [(2012) 5 SCC 359]

“In the context of the of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamount to service within the meaning of clause (o) of Section 2(1) of the Act the Court observed that, ….construction of a house or flat is for the benefit of a person for whom it is constructed. €he may do it himself or hire service of a builder of contractor. \the latter being for consideration is service as defined in the Act. Similarly when a statutory authority develops land or alerts a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. Any defects in construction activity would be denial of comfort and service to a consumer when possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immovable property as argued but diffidence in rendering of service of particular standard, quality or grade. Such deficiency of omissions are defined in sub-clause (1)(ii) of clause (r) of Section 2(1) as unfair trade practice. If a building of a house uses standard material in construction of a building or mix false or misleading representative about the condition of the house then it is denial of the facility or benefit of which a consumer is entitled to claim value under the Act. When a contractor or builder undertakes to erect a house or flat then it is inherent in it that he shall perform is obligation as agreed to. A flat with leaking roof, or cracking wall or substandard floor is denial of service. Similarly, when a statutory undertakes to develop land or frame housing scheme, it, while performing statutory duty render service to the society in general and individual in particular.”

2. Lucknow Development Authority (LDA) – Vs.– M.K Gupta Hon’ble Supreme Court of India – [(1994) 1 SCC 243]

When a person applies for allotment of building site or for a flat constructed by the development authority and enters into an agreement with the developer or a contractor, the nature of the transaction is covered by the expression “service” of any description. The housing construction or building activity carried on by private or a statutory body was, therefore, held to be “service” within the meaning of clause (o) of Section 2(1) of the Act.”

3. Arifur Rahman Khan & Ors. – Vs. – DLF Southern Homes Pvt. Ltd. & Ors. Hon’ble Supreme Court of India – [2020 (3) RCR (Civil) 544]

“A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression “service” in Section 2(1)(o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter-alia to remove deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchaser suffer agony and harassment, as a result of the default of the developer. Flat purchaser make legitimate assessment in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. This legitimate expectation are belied when the developer as in the present case is guilty is delay of a year in the fulfillment of a contractual obligation.

7. The Complainant several times requested the Ops to take necessary steps to resolve the issue but, the Ops didn’t pay any heed. Therefore, owing to non-delivery of possession and non-initiation of construction work by the Ops, the Complainant has claimed refund of entire Principal amount of Rs.3,33,600.00 along with Interest @8% p.a. as per Sub-Clause–‘C’ under Clause– ‘DEFAULT’ in Page No.8 of the Agreement for Sale, vide a Demand Letter dated: 09.02.2021. Again on 28.07.2021 vide an email to two official email ids of the Op No.1 but, no response received the Ops after the expiry of stipulated period and grace periods (if any) for delivery of possession.

8. Thereafter, the Petitioner preferred to file the instant case before this Commission.

9. The cause of action of this case arose on and from March’2021.

The Complainant, therefore, prays for directing the Ops:-

1. To Refund the total paid amount Rs.3,33,600.00 with Interest @ 18% p.a. to the Complainant.

2. To pay Compensation of Rs.1,65,000.00 for monetary loss, harassment, mental agony and other legal expenses.

3. To award Cost of present proceedings in favour of the Complainant.

4. Any other reliefs.

10. Notices were duly served upon the Ops. The Ops being represented by their Learned Advocate has contested the case by filing Written Version and Brief Notes on Arguments against the Complaint. While resisting the claim of the Complainant, the Ops in its’ Written Version and Brief Notes of Argument stated inter alia that this complaint is not maintainable in its present form and in law because it has no cause of action.

11. It is also mentioned that, as per Clause No.16 and 18 of the Agreement for Sale, any dispute arise between the parties have to move first before the Sole Arbitrator for adjudication but, the Complainant has fail to do so.

12. As per Agreement for Sale, the 40 month time period for delivery of Flat is not completed before that Complainant but, before that the Complainant files this case and therefore, should be rejected with imposing huge cost.

13. The Complainant have ceased to be a consumer under the Ops as per the provision of law the very day the complainant applied for the cancellation of the Agreement for Sale.

14. It is further stated that the Op No.1 made several representations through e-mail for making the payment of the residue amount as per payment schedule but, the Complainant failed and neglected to pay the rest of the consideration amount of the said flat and lastly the Complainant through his Learned Advocate sent a legal notice by making some blame excuse and asked for refund of the paid consideration of Rs.3,33,600.00 without follow process for cancellation of the Agreement for Sale.

15. The Complainant is a defaulter in making payment of the consideration money with the Op No.1 in terms of the payment schedule and it is the condition precedent that timely payment of the consideration money by the Complainant to the OP No.1 is the essence of contract but in the instant case the Complainant had violated the conditions of payment schedule and that approach before the Learned Commission by suppressing the actual state of facts for which the complaint case is liable to be dismissed.

16. The Ops further states that there is no deficiency in service and there is no unfair trade practice on the part of the Op No.1 as alleged by the Complainant since there was/is no negligence, deficiency on the part of the Op No.1 for which the Op No.1 is no way liable.

17. Under the above circumstances, the Ops has prayed for outright rejection of the present baseless complaint case with costs.

18. Points for determination are:

1. Is the case maintainable in its present form and in law?
2. Is the Complainant entitled to the relief(s) as sought for?

19. Decision with reasons

1. Both the points I and II, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.

2. We have carefully perused the Petition of the Complainant evidence adduced along with Bank Statement and all papers, other documents and WNA.

3. Having regards had to the facts and circumstances of the case in the light of evidence, it is evident that there is no dispute that Complainant is a consumer having grievances against the Ops, as such the case is maintainable in its present form and in law.

4. There is no dispute that the Complainant has paid Rs.3,33,600.00 out of Total Consideration of Rs.(8,29,830.00 for Designated Flat/Unit + 2,50,000.00 for Open Car Parking Space + 2,00,000.00 for Amenities Charges) = Rs.12,79,830.00 as per the Clause – ‘CONSIDERATION’ at Paragraph (a) in Page No.24 of the Agreement for Sale executed on 22^nd October’ 2017.

5. Ops are the Developer/Vendor of the Schedule Property. It is the duty of every Developer/Vendor/Builder to peacefully deliver the complete scheduled property (as per the Terms and Conditions of the Agreement) to its’ valued customer with full satisfaction within the stipulated time and obviously with the Completion Certificate.
6. In the present case, from the testimony of complaint it appears that the Ops have not even started the construction works in the said property in-spite of several reminders by the Complainant and therefore the question of completion of said project within the stipulated time does not and shall not arise at all. The Op No.1 is unable to establish with the documentary proof about their several representations through email for making payment and Complainant’s neglect or failure to pay the residue amount in accordance with the payment schedule, as claimed. Moreover, this Commission didn’t find any Clause No.18 in the Agreement for Sale to move before the Sole Arbitrator for adjudication in case of arising any dispute between the parties, as claimed by the Ops in Paragraph No.8 of Page No.2 of the filed Written Version. It is worthy to be mentioned that there is no bar to take shelter before the Consumer Commission even there is arbitration clause in any contract entered by the parties.

7. From the materials on record it is observed that the Ops has received the above payments in its’ bank account as per the Terms & Conditions Clauses of Agreement for Sale against which they also issued the Money Receipts as mentioned in Paragraph No.4 above.

As per FLEXI PAYMENT PLAN of Page No.10 in the Application Form No.PTP/2675/2016, dated: 21.10.2016 as well as PAYMENT PLAN narrated in the Eight Schedule at Page No.24 of the Agreement for Sale:-

1. 15% of Total Price being a Token Amount at the time of booking.

• That means Rs.1,91,974.50 payable by the Complainant to the Ops at the time of booking but, the Complainant actually paid Rs.2,03,600.00 on 02.05.2017 i.e. Rs.11,625.50 in excess.

2. 10% of Total Price within 45 Days from the date of booking.

Observation: That means Rs.1,27,983.00 payable by the Complainant to the Ops within 16.06.2017 but, actually the Complainant paid Rs.1,30,000.00 on 03.05.2017 i.e. Rs.2,017.00 in excess and also 44 days in advance.

3. 10% of Total Price at the time of foundation.

Observation: That means Rs. 1,27,983.00 payable at the time of Foundation Work but, due to initiation of no construction work, the Complainant has not paid any amount.

4. 10% of Total Price on Casting of 1^st Floor Slab.

Observation: That means Rs.1,27,983.00 payable on Casting of 1^st Floor Slab but, due to initiation of no construction work, the Complainant has not paid any amount.

5. 15% of Total Price on Casting of 2^nd Floor Slab.

Observation: That means Rs.1,91,974.50 payable on Casting of 2^nd Floor Slab but, due to initiation of no construction work, the Complainant has not paid any amount.

6. 15% of Total Price on Casting of 3^rd Floor Slab.

Observation: That means Rs.1,91,974.50 payable on Casting of 3^rd Floor Slab but, due to initiation of no construction work, the Complainant has not paid any amount.

7. 10% of Total Price on Casting of 4^th Floor Slab.

Observation: That means Rs.1,27,983.00 payable on Casting of 4^th Floor Slab but, due to initiation of no construction work, the Complainant has not paid any amount.

8. 10% of Total Price at the time of brick works, plaster & other internal works.

Observation: That means Rs.1,27,983.00 payable at the time of brick works, plaster & other internal works but, due to initiation of no construction work, the Complainant has not paid any amount.

1. 10% of Total Price at the time of possession and/or registration of Deed of Conveyance whichever is earlier.

Observation: That means Rs.1,27,983.00 payable at the time of possession and/or registration of Deed of Conveyance but, due to initiation of no construction work, the Complainant has not paid any amount.

20. Therefore, it can’t be said that the Complainant is a defaulter in making payment of First and Second Installments out of the total consideration money. Rather, the Complainant paid the First and Second due installments in excess amount and well in advance, in spite of no construction work has been made by the Ops. If the Complainant not able to pay the consideration money as per the payment schedule after initiation of construction as per Terms & Conditions of the Agreement for Sale, then only the question of defaulter will arise.

21. Now, coming to the matter of reliefs. The Ops can’t get absolved from the mischief of Unfair Trade Practice. As per the Agreement for Sales as well as Application Form, the construction work should be completed within 40 Months from the date of execution of Agreement for Sale subject to force majeure i.e. within 21.02.2020. Not only the Ops refuses to refund the received amount but, also not even started the construction work in-spite of several persuasions, reminders and requests of the Complainant after making two installments in excess amount and well in advance period in good faith with adhere the Terms and Conditions of the said Agreement which amount to Severe Fraud i.e. Unfair Trade Practice by the Ops. The Complainant after long wait since the year 2017 with patience filed this instant complaint before this Commission on 01.02.2022 i.e. after the expiry of such 40 Months. So, the contention of the Ops that the Complainant before expiry of 40 Months is not true.

22. So, we think that it would be just and proper, if we direct the Ops to refund the entire amount of Rs.3,33,600.00 (Rupees Three Lakh Thirty Three Thousand Six Hundred Only) along with simple Interest @ 9% per annum from the date of each payment by Cheque of the said amount till realization, in addition to that the Ops will be liable to pay Compensation of Rs.70,000.00 and Litigation Cost Rs.5,000.00 within 45 days from the date of this order.

23. Both the points are decided accordingly.

24. Thus, the Complaint case succeeds.

Hence, it is

          O R D E R E D

That the CC-08 of 2022 be and the same is allowed on contest.

The Ops, who are jointly and severally liable, are directed to refund the entire amount of Rs.3,33,600.00 (Rupees Three Lakh Thirty Three Thousand Six Hundred Only) along with simple Interest @ 9% per annum from the date of each payment by Cheque of the said amount till realization, in addition to that the Ops will be liable to pay Compensation of Rs.70,000.00 and Litigation Cost Rs.5,000.00 within 45 days from the date of this order.

The Complainant will be at liberty to put this order into execution.

Let a copy of this judgment be provided to the parties free of costs.

The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

File be consigned to record section along with a copy of this judgment.