SHRI SHYAMAL KUMAR GHOSH, MEMBER
The instant consumer case has been filed by the complainants against the opposite parties praying for certain reliefs enumerated in the prayer portion of the petition of complaint which are reproduced as follows:-
“To hand over possession of the flat as described in Schedule ‘A’ herein below and to register and execute the Deed of Conveyance with respect to the said flat in the name of the complainants upon payment of the residual consideration amount and pay compensation to the tune of Rs.5,00,000/- for mental harassment and agony, Rs.5,00,000/- as punitive damages for adopting unfair trade practices and Rs.80,000/- as litigation cost along with compensation for delayed penalty @ 18% per annum on the amount paid i.e. Rs.3,88,500/- as stipulated in clause 9 of GTC of the Op developers till final realisation of the flat,
OR
To refund the said amount of Rs.3,88,680/- and pay compensation to the tune of Rs.5,00,000/- for mental harassment and agony, Rs.5,00,000/- as punitive damages for adopting unfair trade practices and Rs.80,000/- as litigation cost and to pay interest @ 9% per annum on the amount paid ie Rs.3,88,500/- till date of realisation of the amount paid.
And to pass further order or orders as your Lordship may deem fit and proper.
AND for this your petitioners as in duty bound shall ever pray.”
The factual matrix of the case is that the opposite party no–1 /developer has published an advertisement in a newspaper regarding the project of construction of ownership flat / apartment. The complainants have booked one flat/apartment through application form being no 0959 in respect of flat / apartment being no – A2, Tower no – 19, 2nd Floor, North-East side measuring more or less 1050 sft (super built up area) along with one car parking space at a total consideration amount of Rs.21,63,150/- only. The complainants have already paid Rs.3,88,500/- to the opposite party no – 1 herein out of which they have also paid Rs.1,00,000/- only to the opposite party no – 2 herein who generally conducted the booking procedure. On 12/11/2014 the opposite party no – 1/developer, through the letter, has approved the aforesaid booking of the said flat in question. The opposite party no – 1/developer has sent a letter to the complainants detailing about the provisional allotment together with the money receipt in respect of payment amounting to Rs.3,88,500/-. The fact remains that in the year 2015 the opposite party no – 1/developer has sent an incomplete agreement for sale and there was no such specification in order to complete the said agreement for sale. On 04/05/2016 the opposite party no – 1 by sending a letter to the complainants stating inter alia that they have joined the hands with another reputed developer viz. Dharitri Infraventure Pvt. Ltd and formed a new company under the name and style of Nest Wood Maple Project Pvt. Ltd and they have assured the complainants that the construction work would take place within the month of May/June 2016. Thereafter the complainants have visited the site and found that no construction work has been started under the name and style of the projects viz. Nest Wood Maple or Gulmohar. After observing the situation, the complainants have approached and filed a complaint before the department of CA and FBP, Govt of West Bengal on 17/05/2017 for getting reliefs against the opposite parties. A meeting was held on 04/07/2017 and it was decided that as per the General Terms and Conditions of the ops/developers, the complainants ought to have received the possession of the flat within 36 months from the date of allotment and in the event of inability to handover such possession within the stipulated period of time, the complainants would be entitled to receive the interest from the opposite parties @ 18% pa on the deposited amount.
There is clear gross negligence and deficiency in service on the part of the opposite parties.
Having no other alternatives, the complainants have knocked at the door of this Commission for getting proper relief/reliefs as prayed for against the ops.
The opposite party no – 1 contested this case by filing written version stating inter alia that the money receipts which have been annexed with the petition of complaint, does not bear any official rubber stamp of the person who actually received the consideration amount from the complainants. By filing written version, the op no – 1 also stated that the pecuniary value of the instant complaint petition is much less than the pecuniary jurisdiction of this Commission and as such this Commission has no authority to entertain the instant consumer case.
The opposite party no – 1 has further stated that the residential flat cannot be treated as good for ascertaining the value of the petition of complaint. Accordingly the opposite party no – 1 has prayed for dismissal of the petition of complaint with exemplary costs.
By virtue of order being no – 5 dated 04/06/2018 the order of ex-parte against the opposite party no – 2 has been passed as no written version has been filed by the op -2 herein.
The ld advocate appearing for the complainants has argued that the complainants have booked one flat/apartment by the application form being no – 0959 in respect of apartment being no A2, Tower no – 19, 2nd Floor North-East side measuring area more or less 1050 sft (super built up) along with car parking space at a total consideration amount of Rs.21,63,150/- only. The ld advocate also argued that the complainants have already paid Rs.3,88,500/- to the opposite party no – 1 herein and out of which Rs.1,00,000/- only has also been paid to the opposite party no – 2 herein who has conducted the booking procedure on behalf of the opposite party no – 1.
None appeared on behalf of the opposite parties at the time of final hearing.
We have heard the ld. advocate appearing for the complainants at length and in full.
We have meticulously perused the materials available on the record.
We have considered the submissions of the ld. advocate.
We have carefully perused the Application Form being no – 0959 issued by the Nest Wood Maple, opposite party no – 1 herein wherefrom it appears to us that the complainants have booked one 3BHK flat/Apartment being no – A2 at the second floor in Tower being no – 19 measuring area 1050 sq ft at a rate of 1800/- sq ft along with open car parking space amounting to Rs 2,00,000/- only and to that effect the opposite party no – 1 has already received Rs. 3,88,500/- only from the end of the complainants.
We have also perused one money receipt being no – 275 dated 10/10/2014 wherefrom it is revealed that the opposite party no – 1/Nest Wood Estates Pvt. Ltd has received Rs. 3,88,500/- from the end of the complainants in respect of aforesaid flat/apartment affixing the seal of the aforesaid company upon the revenue stamp. So, we are of the view that the plea taken by the opposite party no – 1 regarding money receipt without any official rubber stamp stated clearly in their written version has no basis at all and has also no leg to stand upon.
The opposite party no – 1 has stated in his written version that the residential flat cannot be said to be a good for ascertaining the value of a complaint petition. In this regard we try to mention here that the Provisions of C.P. Act, 1986 are applicable for defects of goods and deficiency in service. In case of hiring service the flat/apartment comes well within the purview of C.P. Act, 1986.
Good is defined as per section 2(7) of the Sale of Goods Act, 1930 as “every kind of movable property other than actionable claims and money and includes stock and shares, growing crops, grass and things attached to or forming part of the land.”
At this juncture, we also try to mention the definition of the ‘service’ as per Consumer Protection Act 1986 which is reproduced as follows:-
“Service means of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”
So in pursuant to the above observations, there is no hesitation to hold that the matter relating to the deficiency in service with regard to the flat/apartment clearly comes well within the purview of the Consumer Protection Act, 1986.
The opposite party no -1 has also raised a voice in his written version regarding pecuniary jurisdiction of this Commission. Section 17(1)(a) of the Consumer Protection Act, 1986 provides that subject to the other provisions of this Act, the State Commission shall have jurisdiction to entertain the complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but not exceed rupees one crore. In pursuant to the case record it is revealed that the total consideration of flat/apartment along with car parking space is amounting to Rs.21,63,150/- only. In the prayer portion of the aforesaid petition of complaint the complainants have also claimed Rs.5,00,000/- towards compensation for mental pain and agony, Rs.5,00,000/- towards punitive damages for adopting unfair trade practice and Rs.80,000/- towards litigation cost and alternatively they have prayed for refund amounting to Rs.3,88,680/- along with interest @ 9% pa which exceeds Rupees twenty lakhs and as such there is no hesitation to hold that this Commission has an ample authority and jurisdiction to entertain the aforesaid consumer complaint.
In pursuant to the application form being no. 0959(Annexure-B) issued by Nestwood Maple, the OP No. 1 herein, it appears to us that the OP No. 1 has already received Rs. 3,88,500/- from the end of the complainants in respect of the apartment being no. A2. 2nd floor, 3 BHK measuring area 1050 sq.ft. alongwith open car parking space. So, the complainants come well within the purview of the definition of the consumers under the Consumer Protection Act, 1986.
Whether there is any gross negligence and deficiency in service on the part of the Opposite Parties or not as per Consumer Protection Act, 1986 that should be looked into. Regarding this matter we have carefully perused the agreement for sale wherefrom it appears to us that the aforesaid agreement for sale has been executed by and between the parties in the year,2015. This instrument also reveals that the delivery of possession of flat ought to have been made by January, 2019.
Upon careful perusal of the letter dated 04.05.2016, it appears to us that Nestwood Maple, OP No. 1 herein has joined hands with another reputed developer group in Kolkata called Dharitri Infraventure Pvt. Ltd. and the new company has been formed under the name and style of Nestwood Maple Project Pvt. Ltd. and the said company, by this letter, has assured the complainant that the construction work would be taken place within the month of May/June, 2016. Thereafter, on several occasions by sending the various letters dated 21.02.2017, 31.03.2017, 22.04.2017 and 17.05.2017 the complainants prayed for refund of money as no project has been started by the developer/OP No. 1.
Upon careful perusal of the letter dated 08.03.2017, it appears to us that the new project viz Gulmohar has been launched and in the next three months the project work was supposed to be started and in this respect a MOU would be signed in April, 2017 but from the four corners of the record it appears to us that no MOU has been executed and signed by the parties in order to complete the aforesaid project.
Under such circumstances, the complainants were well aware that the project was totally failed as no construction was started by the OP No. 1/developer. Though the delivery of possession would be made by the month of January, 2019 yet there was no chance to deliver the peaceful and vacant possession of the flat to the complainants within the stipulated period of time. Thus, being the situation, the unfortunate complainants rushed to this Commission with a prayer for refund.
The aforementioned facts clearly revealed that the developer/OP No. 1 is not in a position to deliver the aforesaid flat to the complainants. The agreement for sale has been executed in the year, 2015. The OP No. 1/developer has promised to deliver the possession of the flat to the complainants within January, 2019. It is now the year, 2023. The long 8 years has already been elapsed. So, it is unexpected to get the benefit from the OP No. 1/developer. It is not possible for the complainants to wait for indefinite period of time for getting their flat in question. So, the order of refund should be allowed in favour of the complainants in order to meet proper justice to the complainants.
In this respect, we can safely rely upon the decision Suniti Kumar Bhat and others Vs Unitech Acacia Projects Pvt. Ltd. and others reported in 2018(3)CPR 795(NC) wherein the Hon’ble National Commission held that when the builder fails to construct the flat on time, he is entitled to pay compensation in the form of interest and cost of litigation. In this respect of we can depend upon another remarkable decision Fortune Infrastructure and Another Vs Trevor D’lima and others reported in (2018) 5SCC442 wherein Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of amount paid by him alongwith compensation.
No order should be passed against the OP No. 2 as he has generally conducted the booking procedure only. In this respect, the OP No. 2 did not receive any consideration amount from the complainants.
Keeping in view of the above observation and for finality of the litigation, there is no hesitation to hold that there is a clear gross negligence and deficiency in service on the part of the OP No. 1 and accordingly we allow the instant CC case on contest against the OP No. 1 with cost. We further hold that there is no negligence or fault on the part of the OP No. 2 and as such we dismiss the same exparte against the OP No. 2 without any order as to cost.
Hence,
It is,
ORDERED
That the OP No. 1/developer is directed to refund the amount of Rs. 3,88,680/- ( Rupees three lakhs eighty-eight thousand six hundred eighty only) to the complainants within 60 ( sixty) days from the date of this order alongwith interest @ 9% p.a. from the date of each payment in the form of compensation till full realization.
The OP No. 1/developer is further directed to pay litigation cost of Rs. 20,000/- (Rupees twenty thousand) only to the complainants within the aforesaid stipulated period of time, in default, the awarded amount shall carry interest @ 9% p.a. till full realisation.
In case of non-compliance of the order by the OP No. 1/developer, the complainants are at liberty to put the order in execution.
No order is passed against the OP No. 2 as he has generally conducted the booking procedure only. In this respect, the OP No. 2 did not receive any consideration amount from the complainants.
The Complaint Case stands disposed of as per above observation.
Note accordingly.
