SHRI  REYAZUDDIN KHAN,MEMBER

This is an application U/s.35 of the C.P. Act, 2019.

The fact of the case in brief is that the above mentioned Complainants being interested in the project of “IVY GREENS”at Vedic Village  of the OPs lying and situated within the Rajarhat P.S,Dist North 24 Parganas,Chandpur Gram Panchayat,Mouza Shikarpur,West Bengal.The complainants have submitted an application for one of the apartment being no.B-5 on the 5^th Floor,Block No.IG-20,measuring about 990 sq.ft super built up area along with one open car parking space at the consideration amount of Rs,29,20,500/ plus service tax against flat and Rs,2,00,000/ plus service tax against covered car parking space,total consideration amount Rs,31,20,500/ plus service tax and other charges separately. A sale deed was executed on 20.11.2014 between the parties.The Complainants were assured of possession of the subject flat  within 36 months from the date of the execution of the sale deed.  Subsequently, in terms of the said agreement and as per demand of OP,the complainants have paid Rs.9,65,077/-(Rupees Nine Lakh Sixty five thousand seventy seven) only to the OP on different dates. It is submitted by the complainant there was no communication from the OP since the date of subsequent payment i.e. 30.07.2014. Even, no construction of work of the said project Block –IG-20 has been started. On enquiry,the OP did not respond and kept silent on the issue. It is under stood by the complainant that the OP has no intention of carrying out the construction of the said project in spite of accepting the sum of Rs 9,65,077/-(Rupees Nine Lakh Sixty five thousand seventy seven) only for the subject flat. This is absolutely a deficiency in service and unfair trade practice on the part of the OP. Considering the conduct of the OP the complainant sent one letter dated 28.06.2019 asking them to cancel the said agreement for sale with immediate effect and refund the sum of Rs.9,65,077/-(Rupees Nine Lakh Sixty five thousand seventy seven) only as already paid to the OP.The notice was received by the OP but the OP  failed and neglected to return the aforesaid amount.The complainants again sent one email dated 10.12.2020 requested once again for refund of the deposited amount as her wife was suffering from Cancer but no response received from the OP. Thus, the OP has not discharged their obligations and misappropriated money of the complainants 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 complainants have suffred a lot . Finding no other way the complainants have approached the Commission for justice with relief as detailed in the complaint petition.

 OP has contested the case by filing their Written Version contending inter alia that the complaint is not maintainable either in law or on fact, it is also barred by limitation. The complainants are not a consumer within the meaning of Consumer Protection Act,1986. The OP stated that there has been economic slowdown in overall development in the infrastructure sector which adversely affected the progress of the project.The demonetization, the change in real estate law,and further the Covid-19 Pandemic delayed the project.The change in construction and handing over of the concerned unit has been owing to intervening “Force Majeure” events which was beyond the control of the Opposite party.There is no deficiency in service and or unfair trade practice on the part of the answering OP.Therefore,the complaint should be dismissed with cost.

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 has indulged in unfair trade practice?

           3)  Whether the complainants are 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.

Complainanst  have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by the OP.

            On perusal of the case,evidence led by the parties coupled with the documents annexed therewith, it would reveal that  complainant submitted an application for booking of one residential Unit B-5 on the 5^th Floor,Block No.IG-20,measuring about 990 sq.ft super built up area along with one open car parking space. Rajarhat P.S-Dist North 24 Parganas,Chandpur Gram Panchayat,Mouza Shikarpur,West Bengal. Complainants paid Rs.9,65,077/-(Rupees Nine Lakh Sixty five thousand seventy seven) only to the OP on different dates out of total consideration amount Rs,31,20,500/ plus service tax and other charges separately. But further the complainants terminated the agreement due to gross negligence and defective service of the opposite party and the complaint demanded 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 complainants.The complainants have been deceived as well as they were given physical, mental and financial injury by opposite party' 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 complainants within the stipulated period as mentioned in the sale agreement dated 20.11.2014.The OP is fully aware that he is liable to pay the deposited advance amount including interest thereon to the complainants. Complainants deposited his hard earned money with 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, and in fact, withhold the deposited amount of Rs.9,65,077/-(Rupees Nine Lakh Sixty five thousand seventy seven) only along with

accrued interest. Complainants have filed his affidavit reaffirming the allegations. Thus, it stands proved that despite of having received Rs.9,65,077/-(Rupees Nine Lakh Sixty five thousand seventy seven) 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.

 OP failed and neglected to pay deposited advance amount Rs.9,65,077/-(Rupees Nine Lakh Sixty five thousand seventy seven) only which they have to pay to the complainant and the act and conduct of the OP is  clear case of deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not deposited/paid his money with the OP, he would have invested the same elsewhere. The complainants cannot be wait indefinitely to get the said amount. The complainants have suffered mental agony, pain and harassment. It is settled principle of law that the compensation should be commensurate with loss of suffered and it should be just, fair and reasonable and not arbitrary. To get relief, the complainants have to wage a long drawn and tedious legal battle. In these circumstances, the complainants are 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 Complainants have established the case against the OP. All the points under determination are answered accordingly.

In the result, the Consumer Complaint succeeds .

Hence,

Ordered

That the Complaint Case be and the same is allowed on contest against the OP  with the following directions:-

1. The OP is directed to refund  the sum of Rs.9,65,077/-(Rupees Nine Lakh Sixty five thousand seventy seven) only to the complainants with interest @ 9% calculated from the date of first  installment/payment ( i.e, 30.07.2014) was received by the OP till final realization.
2.  The OP is further directed to pay Rs.40,000/-  to the complainants  as compensation  for causing harassment and mental agony..
3. The OP is also directed to pay Rs.10,000/- to the complainants as litigation costs.

In the event of non compliance of the order, liberty be given to the Complainantsto 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