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 Complainant being interested in the project of “IVY GREENS”at Vedic Village  of the OP lying and situated within the Rajarhat P.S,Dist North 24 Parganas,Chandpur Gram Panchayat,Mouza Shikarpur,West Bengal.The complainant has submitted an application on 07.01.2015 for one of the apartment being no.C-5 on the 5^th Floor,Block No.IG-03,measuring about 990 sq.ft super built up area along with one covered car parking space at the consideration amount of Rs,30,19,500/ plus service tax against flat and Rs,2,50,000/ plus service tax against covered car parking space,total consideration amount Rs,32,69,500/ plus service tax and other charges separately. An Agreement for  sale was executed on 12.02.2015 between the parties.The Complainant was assured of possession of the subject flat  within 36 months from the date of the execution of the Agreement for sale.  Subsequently, in terms of the said agreement and as per demand of OP,the complainant has paid Rs.10,26,600/-(Rupees Ten Lakh Twenty Six thousand Six Hundred) 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.Even, no construction of work of the said project Block –IG-03 has been started. As per the agreement for sale the OP agreed to handover possession of the apartment within 36 months and deliberately failed to honour the agreement at their own.On enquiry,the OP did not respond and kept silent on the issue.The complainant on repeated occasions requested the OP to complete the construction work and deliver the possession of the apartment but Op did not respond. 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.10,26,600/-(Rupees Ten Lakh Twenty Six thousand Six Hundred) 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 joint notice with other flat purchasers dated 04.06.2019 along with reminder letter dated 23.11.2019 with the request either to complete the construction work of the apartment in habitable condition or refund the entire amount along with interest.one .The notice was received by the OP but the OP  failed and neglected to return the aforesaid amount.Thus, the OP has not discharged their obligations and misappropriated money of the complainant 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 complainant has suffered a lot.Finding no other way the complainant  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,no cause of action for filling of the instant complaint .Complainant has booked the flat for commercial purpose so the complainant is not a consumer within the meaning of Consumer Protection Act,2019.The OP further 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 complainant is 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 C-5 on the 5^th Floor,Block No.IG-03,measuring about 990 sq.ft super built up area along with one covered car parking space at the consideration amount of Rs,30,19,500/ plus service tax against flat and Rs,2,50,000/ plus service tax against covered car parking space,total consideration amount Rs,32,69,500/ plus service tax and other charges separately Rajarhat P.S,Dist North 24 Parganas,Chandpur Gram Panchayat,Mouza Shikarpur,West Bengal.Complainant paid 10,26,600/-(Rupees Ten Lakh Twenty Six thousand Six Hundred) only  for the subject flat to the OP on different dates out of total consideration amount Rs, 32,69,500/ plus service tax and other charges separately. But further the complainant 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 complainant.The complainant has 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 complainant within the stipulated period as mentioned in the sale agreement dated12.02.2015 .The OP is fully aware that he is liable to pay the deposited advance amount including interest thereon to the complainant. Complainant 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 10,26,600/-(Rupees Ten Lakh Twenty Six thousand Six Hundred) only  along with accrued interest. Complainants has filed his affidavit reaffirming the allegations. Thus, it stands proved that despite of having received Rs. 10,26,600/-(Rupees Ten Lakh Twenty Six thousand Six Hundred) 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 10,26,600/-(Rupees Ten Lakh Twenty Six thousand Six Hundred) 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 complainant. Had the complainant not deposited/paid his money with the OP, he would have invested the same elsewhere. The complainant cannot be wait indefinitely to get the said amount. The complainant 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 complainant has to wage a long drawn and tedious legal battle. In these circumstances, the complainant is 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 Complainant has 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 10,26,600/-(Rupees Ten Lakh Twenty Six thousand Six Hundred) only to the complainant with interest @ 9% calculated from the date of first  installment/payment ( i.e, 07.01.2015) was received by the OP till final realization.
2.  The OP is further directed to pay Rs.40,000/-  to the complainant  as compensation  for causing harassment and mental agony..
3. The OP is also directed to pay Rs.10,000/- to the complainant 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