FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainants are the residents of Thane (West), Maharashtra- 400615 and the OPs has revised the scheme to develop a featured housing enclave to consist of temporary styled two bed room apartment/units in terms of a development agreement dated 16.11.2013. The proposed housing enclave has been named as “IVY Greens”.
The complainants were in search of residential apartment for the own use and they came to know about the project in question from different sources, accordingly, they approached the OP and submitted an application dated 24.04.2014.
On the basis of the said application, the OP issued allotment letter dated 01.04.2015 in favour of the complainant in respect of one apartment/unit being No. C-4 on the fourth floor, block No. 1G-15, “IVY Greens” at Vedi Village , Shikharpur, Post-Bagu, PS-Rajarhat, Kolkata-7000135 measuring about 990 sq. ft. super built up area along with one car parking space , total consideration price was of Rs. 28,21,500/- + service tax against the flat in question of Rs. 2,50,000/- + service tax against the covered car parking space and total consideration amount is of Rs. 31,71,500/- + service tax +other charges as described in the allotment letter. Subsequently, an agreement for sale was executed in between the complainant and the OP on 05.06.2015. It was mentioned in the agreement for sale that the possession of the flat in question would be given within 36 month from the effective date of agreement for sale dated 05.06.2015. The complainants have paid the total amount of Rs. 34,83,306/- in respect of flat/apartment in question including the price of the enhanced area of 1040 sq. ft., covered car parking space and service tax. So, the complainant have paid the entire consideration money and that was acknowledged by the OP. The OP subsequently, issued fresh allotment letter dated 19.11.2016 which is described as the total consideration money of the flat in question of Rs. 30,6520/- instead of Rs. 33,71,000/- and the OP also received a sum of Rs. 34,83,306/- from the complainants in total.
It is alleged by the complainant that in spite of receiving entire consideration money the OP failed to commence the construction work on block-1G-15 as per agreement for sale dated 05.06.2015. The OP agreed to handover the possession of the apartment in question to the complainant within 36 months and deliberately failed to honour the agreement for sale. Such act and conduct of the OP is sheer deficiency in service and nab of the unfair trade practice for which they are liable to give compensated to the complainant as per provision of CP Act, 2019. The complainants on so many occasion request, the OP to complete the construction work of the said apartment but in vain. Ultimately, the complainant served a legal notice upon the OP on 16.12.2019 and that was received by the OP on 20.12.2019 but till date neither the OP started the construction work nor give any reply to the notice which compelled the complainant to file this case before this commission with a prayer to give direction to the OP to refund the consideration money amounting to Rs. 34,8306/- along with interest @18 % pa on the amount stated above to the complainants. The complainants also prayed for giving direction to the OP for giving compensation to the tune of Rs. 15,00,000/- to the complainant for harassment mental pain and agony along with litigation cost of Rs. 1,00,000/-.
One Uday Modi have filed the WV on behalf of the OP for contesting the claim application filed by the complainants against the OP. The OP has contested the claim application by filing WV denying all the material allegations against it.
It is the case of the OP that the case is not maintainable U/s 35 of CP Act, 2019 before this commission. It is barred by law of limitation and also lacking cause of action.
The OP further stated that the case is not maintainable before this commission because it has got no pecuniary jurisdiction to try this case. It is also stated by the OP that the complainant is not a consumer within the meaning of CP Act, 2019.
The OP further stated that the delay has caused due to force majure condition. It was beyond the control of the Opposite Party.
The OP further stated in its WV that from the very beginning it is clear to the complainant that the expected date of handing over the possession in respect of the flat /apartment in question as mentioned in the agreement for sale was not the exact date and that was also based on first plan and estimation.
It is denied by the OP that the complainant paid the entire consideration money.
The OPs further stated that there was no deficiency in service on the part of the OP so, the question of giving compensation to the complainant does not arise at all rather the complainants are not entitled to get the refund of the amount along with interest @ 18 % pa. The complainants have no cause of action to file this case.
Thus, the same is liable to be dismissed with cost.
In view of facts and circumstances as stated above, let it be decided
1. Whether the case is maintainable or not?
2. Have the complainants any cause of action to file the case?
3. Are the complainants consumer?
4. Is there any deficiency in service on the part of the OP?
5. Are the complainant entitled to get the relief as prayed for?
Decision with reasons
All the points of considerations are taken up together for convenience of discussion and to avoid unnecessary repetition.
On a close scrutiny of materials on record, as well as position of law it is revealed that the case is well maintainable in the eye of law and this commission has got the ample jurisdiction both territorial and pecuniary to try this case.
it is the case of the complainants that they were searching a residential apartment for their own use and somehow they made contact with the OP for purchasing a residential flat thereafter, the complainants submitted an application dated 24.04.2014 to the OPs being intending purchasers. So, the OP being satisfied with the application of the complainants have allotted one apartment/unit being No. C-4 on the 4th floor Block No. 1G-15, “IVY Greens” at Vedic Village, Shikherpur, Post-Bagu, PS- Rajarhat, Kolkata-7000135, measuring about 990 sq. ft. subsequently, which was enhanced up to 1040 sq. ft. super built up area along with one covered car parking space by issuing the allotment letter dated 01.04.2015. From the evidence on record as adduced by the complainants, it is found that the complainants have initially paid the total consideration money of Rs. 28, 21,500/- + service tax against the flat in question of Rs. 250,000/- +service tax against covered car parking space then the total consideration money of Rs. 31,71,500/- and the other charges were separately described in the allotment letter dated 01.04.2015 .
From evidence on record, documents as well as materials on record, it is evident that the parties to this case have entered into an agreement for sale which was executed on 05.06.2015. From the agreement for sale dated 05.06.2015, it is palpably clear from article 09 of the agreement for sale that the delivery of possession of the flat in question would be made within 36 months from the date of execution of agreement for sale ie on and from 05.06.2015. The complainant in their evidence have alleged that the OP ie builders /developer have enhanced the super built up area of the questioned flat /apartment from 990 sq. ft. 1040 sq. ft./ super built up area beyond their knowledge and consent for which they have compelled to pay the enhanced consideration amount of Rs. 28,21,500/- to Rs. 33,70,000/- which OP intimated the complainants vide letter dated 16.07.2015. The OP though denied this fact that the consideration money of the subject flat in question as mentioned in the petition of complaint was of Rs. 28,31,500/- and the super built up area of the subject flat was 990 sq. ft. but from the agreement for sale it is crystal clear that the apartment in question which was allotted to the complainant by the OP was of initially was of 990 sq. ft. super built up area. The OP has failed to prove that the subject flat initially was of 1040 sq. ft. . the subject flat was measuring about 1040 sq. ft. super built up area since inception or the area of the subject flat has been enhanced by the OP as per request of the complainant by submitting any cogent document . So, the plea of the OP that the subject flat was not 990 sq ft. super built up area has no leg stand upon. There is no scope on the part of the OP to deny that they did not receive a sum of Rs 34,83,306/- in total towards the consideration money of the subject flat/apartment from and other charges complainants because the complainants have submitted all the money receipts issued by the OP time to time to that effect in favour of them. Moreover, the OP also issued fresh allotment letter dated 19.11.2016 where they described the total consideration money of the subject flat/apartment of Rs. 30,06,520/- in stead of Rs. 28,21,500/- and they also acknowledged the receipt of Rs. 34,83,306/- from the complainant .
From the evidence on record as adduced by the parties to this case it is well established that the OP failed to handover the possession of the subject flat to the complainants within the stipulated period as mentioned in the agreement for sale dated 05.06.2015 ie within the 36 month from the effective date of execution of the agreement for sale dated 05.06.2015 . On the plea of force majure in this respect. This commission is of view that all the builders and developers of the country are/were well known about the force majure when they entered into agreement for sale with intending purchasers of the flat /apartment. So, they should keeping in their mind. That, after receiving the entire consideration money the OP cannot deny the responsibility and duties to handover the subject flat/apartment to the complainants of the purchasers under the shield of “ force majure”. Rather The OP though has taken the plea of force majure but it failed to prove the same by submitting any believable documents so the commission is not satisfied with the plea and the same is not accepted.
Under such circumstances, the commission is not in a position to accept the argument of the OP that they were restrained to complete the construction of the apartment in question and to hand over the same the complainant only because of “force majure” the complainant have hired the OP service /builders /developer for getting a residential apartment in “IVY Greens” as fully described above on payment of the entire consideration amount of Rs. 34,83,306/- as we got it from the money receipts and record issued by the OP in favour of the complainants. The OPs are bound to give service to the complainant by handing over the passion of the subject flat and also by executing the registered deed of conveyance in their favour.
From evidence on record, it is reflected that the complainant on several occasions requested the OP to complete the construction work of the apartment in question and to hand over the possession of the same but the OP neglected their request and harassed them. As and when the complainants and the OP entered into agreement for sale. Their relationship is nothing but the consumers and service provider as per provision of CP Act, 2019. So, being the consumer the OP has harassed the complainants and such conduct of the OP is nothing but the deficiency in service on its part . For such deficiency in service the OP is bound to refund the entire consideration amount to the complainant and to pay compensation to that effect.
In view of the discussion made above, it is proved by the complainants that they are consumers and the OP is the service provider. They have sufficient cause of action to file this case against the OP and the complainants could not be able to prove the case against the OP beyond all reasonable doubts for which they are entitled to get the relief as prayed for.
All the points are considered and decided in favour of the complainants.
The case is properly stamped.
Hence,
Order
That the case be and the same is decreed on contest against the OP with cost of Rs. 5,000/-.
The OP is directed to refund the entire consideration money of the subject flat of Rs. 34,83,306/- only to the complainants along with interest @ 6 % p.a. on the amount as mentioned above from the date of filing of this case till realization within 45 days from this date of order.
The OP is further directed to give compensation to the complainants of Rs. 75,000/- for harassment, mental pain and agony along with litigation cost of Rs. 30,000/- within 45 days from this date of order if the complainant has liberty to execute the decree as per law.
Copy of the judgment be uploaded forthwith on the website of the Commission for perusal.
