FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the Complainants, in brief, is that on 07/05/2014, Complainants executed an Agreement for Sale with the OP for a residential unit at “IVY GREENS” lying and situated in the Vedic Village a MOUZA – Sikharpur, P.O. – Bagu, P.S. – Rajarhat, Sikharpur Road, Kolkata – 700135, within the limits of Gram Panchayet , in the District of North 24 Parganas, West Bengal, measuring more or less 990 sq.ft super built up area on 3rd Floor being Flat No. A-3, Block No. IG-07 together with an one covered car parking area for a total consideration of Rs.28,21,500/- including Rs.2,00,000/- for covered car parking space, amounting to Rs.30,21,500/- and the Complainants have already paid total amount of Rs.28,06,569/- on different dates which includes the Complainants contribution of Rs.5,82,936/- and Central Bank of India contribution as House Building Loan amount of Rs.22,23,583. As per the Agreement for Sale the OP endeavors to complete the construction of the aforesaid building within 36 months from the date of agreement. But the OP failed to complete the construction work and deliver the possession of the flat to the Complainants within stipulated period. Thereafter the Complainants several times the OPs to complete the construction work and deliver the possession of the said flat as per Agreement for Sale dated 07.05.2014 but the OP did not respond and kept silent. The Complainants sent letters to the OP in the month of December 2017 and early 2019 requesting them to refund the deposited amount. In reply the OP initially handed over one cheque bearing no.084878 dated drawn on Central Bank of India, Bhowanipur Branch for Rs.5,00,000/- as part payment but the same has been dishonoured on 18.07.2019 on the ground of “fund Insufficient” but till date the OP did not respond. Till date the Complainants neither got the flat nor got the refund of deposited money. Having no other alternative Complainants have filed the instant consumer complaint for getting reliefs.
OP contested the case by filing W.V. contending inter alia that the instant complaint is baseless, suppression of facts, false, barred by limitation and this Forum has no jurisdiction to hear the case. The case of the OP is that no Agreement for Sale has been executed between the parties and hence the Complainants are not consumer within the meaning of Consumer Protection Act. Further it is known to everyone that due to slow down economy, infrastructure sector is going through a bad period which beyond the control of OP. The delay has been caused due to Force Majeure events and developer cannot be held responsible for such delay. The progress was link with the payment timely but the Complainants were failed to comply with the allotment letter. Moreover, the OP is entitled to get cancellation charges for non - payment by the Complainants. As such OPs prayed for dismissing the case.
Both parties have tendered evidence supported by affidavit. We have gone thoroughly evidence adduced by the parties including documents on record and gave careful consideration to the arguments advanced by the Ld. Lawyers for the parties.
Evidently the Complainants have entered into an Agreement for Sale on 07/05/2014 with the OP for one residential apartment being Flat No.A-3 on the 3rdFloor in Block-IG-07 situated in the IVY GREENS. A Loan Amount of Rs.25,36,000/- was sanctioned by the Central bank of India with 264 EMI of Rs.30,532/- on 17.06.2014. It has been argued by the Ld. Advocate for the Complainants that after execution of Agreement OPs failed to complete the construction work of the flat in question and to deliver the possession of the said flat within stipulated period. Photocopies of the Money Receipt issued by the OP and STATEMENT OF ACCOUNT issued by the Central Bank of India against the Account No.2990099608 of Product: Cent Home-Flot 25L – 30L reveal that the Complainants have paid an amount of Rs. 5,82,986 and Rs.22,23,585/-to the OPs on different dates. On perusal of the material documents furnished by the Complainants it is found that the Complainants contacted OP regarding the delivery of possession of the said flat vide letters dated 26.12.2017 and 21.08.2019. It is noted that after receiving the letters the OP did not bother to reply the same by revealing any clear and transparent information about the booked flat. We think it is deficiency in service on the part of the OP.
Controverting the allegation made by the complainants, Ld. Advocate for the OP argued that the alleged dispute in the petition of complaint is not a consumer dispute within the meaning of the C. P. Act as no Agreement was executed between the parties. But the photocopy of the Agreement for Sale dated 07.05.2016 furnished by the Complainants clearly shows the OP as SELLER and the Complainants as PURCHASER. Therefore the submission of the Ld. Advocate for the OP cannot be considered. We have travelled through the documents on record and found that complainants booked a flat in the said residential project of the OP against Rs.28,21,500/- along with One Car Parking Space ofRs.2,00,000/. We do not find any piece of document where from it would prove that Complainants are not consumer under the OP. Moreover, an ambiguity prevails in the submission of the Ld. Advocate for the OP, if Agreement for Sale has not been executed between the parties then for what prompted the OP to issue a cheque bearing no.084878dated 15.07.2019 for Rs.5,00,000/-in favour of the Complainant No.1 which was dishonoured due to Funds insufficient. We did not get any satisfactory clarification from the OP’s end. Thus, this gesture of the OP can be termed as unfair trade practice.
Another submission has been placed before us from the side of the OP that throughout India including in West Bengal infrastructure sector is going through a very bad period , for such reason and due to sudden Demonetization and non – availability of paper money there has been a slowdown in overall development, which has adversely affected the progress of the project. As the economic slowdown beyond the control of OP, they herein cannot be held responsible and the delay has been caused due to Force Majeure event. As such, the owner and / or developer are not liable for such delay. In our considered view, such a plea cannot be construed as Force Majeure circumstances because referring a decision of Hon’ble Supreme Court reported in II (2000) CPJ 1(Ghaziabad Development Authority Vs. Union of India) the Hon’ble National Commission in a decision reported in III (2007) CPJ 1( Kamal Sood Vs. DLF Universal Ltd.), has observed that it is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions, such as zoning plan, layout plan etc. It is the duty of the developer to obtain the requisite permissions or sanctions, in the first instance and, therefore, recover the consideration money from the purchaser. As such, the alleged obstructions or hindrance cannot be considered as Force Majeure circumstances. So, OP was under obligation to handover the subject flat in favour of the complainant within the stipulated period and failure on the part of OP to handover the subject flat within the stipulated period amounts to deficiency in services on the part of the OP. In this regard Ld. Advocate for the Complainants relied upon the case of Vipin Bihari & Anr Vs. M/s Imperia Structures Ltd (CC no. 692 of 2018)reported in 2022(1) CPR 195 (NC) wherein Hon’ble NCDRC observed that : Force majeur events – Demonetization, non availability of water and contractual labour, delay in notifying approvals etc., cannot be used to be force majeure events from any angle.
We are also opined that the primary responsibility of a builder is to construct the flat and deliver the possession of the said flat to the purchaser within stipulated period as per Agreement for Sale for which the developer has received the money from the purchaser. If the builder does not deliver upon his contractual obligations and at the same time show the reason for the delay in completion of the said flat and offering its possession to the purchaser was on account on circumstances beyond his control, this would constitute deficiency on the part of the developer in rendering service to the consumer.
In the result, the consumer complaint is allowed on contest in part against the OP with the following directions:
1. OP is directed to refund the deposited amount of Rs.28,06,569/- along with simple interest @ 5% p.a. from the respective dates of payment is made.
2. OP is also directed to pay litigation cost of Rs.10,000/- to the Complainant together with Rs.20,000/- as compensation for harassment and mental agony.
3. This amount to be paid by the OP to the Complainant within 45 days from the date of this order, failing which, the deposited amount shall attract interest @8% p.a. for the same period.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
