FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The case of the Complainants, in brief, is that on 11/06/2014, Complainants executed an Agreement for Sale with the OPs 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 1040 sq.ft super built up area on 1^st Floor being Flat No. C1, Block No. IG-4 together with an one covered car parking area for a total consideration of Rs.32,14,000/- including Rs.2,50,000/- for covered car parking space, plus generator installation charge of Rs.1,56,000/- , plus Club House charge of Rs.1,50,000/- with service tax payable in installments in terms of the said Agreement and the Complainants have already paid a sum of Rs.28,35,832/- towards the part consideration of the flat and also paid the generation installation charge of Rs.1,56,000/- plus Club house charge of Rs.1,50,000/- to the OP1. 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 i.e, within June 2017 and/or the period may be extended for further 6 months as per the Agreement for Sale i.e. within December 2017. Thereafter the Complainants several times verbally and through Emails and letters requested the Ops 1 to 3 to deliver the possession of the said flat together with one covered car parking space and also to execute registered Deed of Conveyance in favour of the Complainants but to yield no result till date. In reply to the Email dated 12.12.2017 of the Complainants the OP5 informed the Complainants vide Email dated 13.12.2017 that the OP4 stated that the completion of the said building project and delivery of the possession will take another 7/8 months i.e. July 2018. Being frustrated the Complainants requested the OPs 1 to 3 vide letter dated 14.09.2020to cancel their booking in respect of the said flat and car parking area  and refund the paid consideration amount. But the same is not replied by the OPs. till date.  Finding no other option the Complainants issued a legal notice to the OPs which is remained un attended. 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 complainant has booked the said flat for resale purpose hence 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. Moreover demand made by the complainant was unacceptable as the complainant is liable to pay the interest @ 18% from September 2018 to December i.e. Rs.11,91,050/-. 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.

It is admitted fact that the Complainants executed an Agreement for Sale on 11/06/2014 for hiring Housing Construction service from the OPs for one residential apartment being Flat No.C1 on the 1^stFloor in Block-IG situated in the IV GREENS. On perusal of the material documents furnished by the Complainants it is found that the Complainants have paid an amount ofRs.28,13,040/-out  of total consideration amount of Rs.32,14,000/- to the OPs. Money Receipts issued by the OPs also supported the averments made out in the complaint petition.

            It has been argued by the Ld. Advocate for the Complainants that after execution of Agreement for Sale and scheduled payments Ops failed to deliver the possession of the said flat within stipulated period and to execute the Deed of Conveyance as per Agreement for Sale. Photocopies of the E-Mails showing that the Complainant contacted OP5 through E-mails dated 12/12/2017 and 13/12/2017 regarding the delivery of possession of the said flat which replied by the OP5 on 12/12/2017 that completion of the said project will take 7-8 months more. Photocopies of Legal Notices dated 30/06/2017, 24/07/2018, 06/03/2019, 09/11/2019, 18/02/2020, 14/09/2020 and10.12.2020sent by the Complainant through their Led. Advocates reveal that the Complainants made the above mentioned demand to the OP2 and requested to refund the deposited amount if possession is not possible. It is noted that after receiving the Mails and Legal Notices OPs 1 to 4 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 the complainants booked the said flat for the purpose of resale. We do not find any logic in such submission. 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.28,13,040/-. We do not find any piece of document where from it would prove that Complainants are not consumer under the OP. 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 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. Therefore, the alleged obstructions or hindrance cannot be considered as Force Majeure circumstances. So, OP was under obligation to handover the subject 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. 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.

Further Ld. Advocate for the OP submitted that the Complainants have already cancelled the booking of the said flat. Once the Agreement for Sale is cancelled the Complainants cannot go back for the revival of the Agreement for Sale and claim for handing over the possession and execution and registration of Deed of Conveyance in the name of the Complainants. In this regard we are opined that, not a single scrap of paper has been annexed on the part of the OPs that can establish that OPs have categorically cancelled the booking of the flat in question and refunded the deposited amount as per the Terms and Conditions of the Agreement for Sale. Therefore we cannot but to decline with the aforesaid submission of the Ld. Advocate for the OPs. Complainants cannot make to wait indefinitely for possession of the flat, when there is absolutely no response from the OPs.

In the result, the consumer complaint is allowed on contest in part against the OPs 1 to 4 and dismissed against the OP5 with the following directions:

1.  OPs 1 to 4 are jointly and severally directed either deliver the possession of the booked flat in habitable condition to the Complainants and execute and register the Deed of Conveyance in favour of the Complainants or refund the deposited amount of Rs.28,13,040/- with simple interest @ 5% p.a. from the respective dates of payment is made within 45 days from the date of passing of the order.

2. OPs 1 to 4 are also jointly and severally 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. In case of refund the amount to be paid by the OP to the Complainant within specified period failing which, the 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.