The Complaint was filed u/s 12, 13 and 14 of the Consumer Protection Act 1986.
The gist of the complaint as averred by the Complainant is that she intended to purchase a flat admeasuring 700 sq ft. from the OP 1 and OP 2 who are the developers for the suit property which was under construction stage, with a view to provide flats etc. to their customers and the OP 3, OP 4, OP 5, OP 6 and OP 7 are the land owners. The developers executed an agreement with the land owners for development of the property and the land owners appointed the developers for developing the suit property and accordingly executed an agreement on 23.06.2009 under Baranagar P.S. and applied for sanctioned plan and started construction work after execution of a general Power of Attorney dated 24.07.2009 duly registered at ADSRO, Cossipore, Dumdum. Subsequently the construction work was started by OP 1 and OP 2 and the complainant was offered of one residential flat for purchase in the said property admeasuring 700 sq. ft. with undivided proportionate share of land and accordingly a sale agreement was executed between the complainant and the OPs on 30.06.2010 for Rs. 14,00,000/- (Rs. Fourteen Lac only) as total consideration money out of which Rs.7,00,000/- (Rs. Seven Lac only) was paid as advance money by the complainant from time to time to the builders. But in spite of waiting for a considerable period the OPs failed to hand over possession of the said flat to the complainant. Meanwhile the husband of the petitioner who had been suffering from cancer caused much pain to the petitioner and sent a legal notice on tioner, due to sufferings from lots of mental and physical agony as well as financial crisis and being a housewife, the petitioner could not contact the OPs. So the petitioner being aggrieved, approached the Assistant Director of Consumer Affairs and Fair Business Practices, Barrackpore to lodge a complaint but ultimately as per the communication dated 31.11.2016 released by the CA & FBP, the effort of mitigation failed due to non-cooperation of OPs as recorded therein. Subsequently the petitioner could establish contact with the builders i.e. OP1 and OP2 for taking possession of the flat but the OP 1 and OP2 did not initiate any positive steps in that matter. Failing to get any response from the OP1 and OP2,the petitioner again sent legal notice on 28.06.2019 requesting the builders to hand over the flat and complete registration formalities but the OP1 and OP2 vide reply dated 29.07.2019 denied the same. Then the complainant had no other way out but to file this case before this commission. The petitioner prayed for a direction before the commission for registration of deed of conveyance in respect of the said flat after handing over of peaceful physical possession and completion certificate of the building along with a compensation of Rs.5,00,000/- (Rs. Five Lac only) for deficiency in services of builder.
The matter was contested by the OPs. In the evidence adduced by the OP1 and OP2 it was stated that though Rs. 7,00,000/- (Rs. Seven Lac only) was paid by the complainant from time to time and last on 12.09.2012 as part payment, but the full consideration money of balance Rs. 7,00,000/- (Rs. Seven Lac only) was not paid by her in time. The complainant was served with received opposition lawyers’ notices dated 18.04.2015, 16.03.2016 and 29.07.2019 from the Ld. Advocate of the OPs. In the brief note of argument submitted on 02.06.2022, the builder has contended that the said agreement was cancelled by a communication dated 29.07.2019 from the advocate of the OP1 and OP2. The OPs also denied having any knowledge about the distressed condition of the petitioner due to her husband’s illness and claimed that a defaulter can’t be compensated by another default means. The OPs also argued that the complainant is not entitled for any relief as the complainant did not pay the full consideration money as agreed in the sale agreement, causing financial loss to the OPs. The OPs also reiterated that the filing of the petition is barred under the Limitations Act by citing various judgment which states inter alia that in case of contract for sale of land, the performance has to be made within a reasonable time, otherwise the other party may cancel the same without prior notice.
While examining this matter, first of all we may look into the merit of this case with respect to the Limitation Act. For the case in hand and in respect of the Limitation Act cited by the Ld. Advocate of the OPs, we have placed reliance on following ruling of 2014 (2) CPR 32 (NC) : wherein, it is held that, cause of action is continuous unless and until possession is given and sale deed not executed. In the case in hand, there is a continuing cause of action as evident from the sequel of records and mediation processes. Moreover, the references cited by the Ld. Advocate of the OPs in their BNA dated 02.06.2022, can’t be applied in a straight jacket manner specially when, what is reasonable time is always a question of fact.Further in this matter we may refer to the following Judgments passed by the Hon’ble Court reported in:2019 (4) CPR 361 (NC), in the CC Case no. 752/2018, decided on 30.07.2019 in the Case of Mukesh Makkar vs. M/s IREO Grace Realtech Pvt. Ltd. and others wherein it has been held that
‘if a builder fails to deliver possession of the flat/plot booked with him within the time period this would constitute a defect or deficiency AND in the matter of 2016 (1) CPR 333 (NC), wherein it has been observed that such type of unscrupulous act on part of Builders should be dealt with heavy hands who after grabbing money from consumer, enjoy and utilize their money without having proper and legal title of land.
This ruling is also applicable in the instant complaint on the ground that the builders have failed either to hand over the flat within the stipulated period or to refund the paid amount to the purchaser. Further, scrutiny of records and documents reveals that execution of the sale agreement and payment of balance consideration money between the petitioner and the developer could not take place till 18.04.2015 as much as the sale agreement could not be fully performed by both the parties for which both the parties for which are responsible. Neither the full consideration money could be paid by the purchaser nor flat was handed over by builder and since the purchase price was escalated in the meantime by the builders, hence the builders could not give possession of the flat in question to the Complainants. Though the OP1 and OP2 claims that they had cancelled the sale agreement but that claim is not supported by refund of the money, though it was the duty of the builders to refund the amount which was deposited by the complainant to those OPs had they been contending to rescind or remove or cancel of repeal the sale agreement. Further, by legal notices including one dated 16.03.2016 and 29.07.2020, the OP1 and OP2 have asked the complainant to execute a fresh agreement with an enhancement in rate of purchase price, for the same property. Therefore it is clear that the OP 1 and OP2 have not discharged their liabilities and failed to execute the sale agreement or refund the money of complainant. Such action of the OP1 and OP2 proves the deficient service on their behalf and the Complainant has successfully proved the same by adducing cogent evidences in support. For such deficient service of the OP 1 and OP2 we are of the opinion that the Complainant is entitled to get compensation with effect from 18.04.2015, since after failure of both the parties to perform the agreement, the complainant expressed her clear willingness and sent a legal notice on 18.04.2015 asking for execution and registration of the flat. As the OP 1 and OP2 did not take any step for redressal of the grievance of the Complainant before filing of this complaint, hence the complainant is entitled for compensation for deficiency in services by the OP2 and OP2 from 18.04.2015.
It is true that the paid amount of Rs.7, 00,000/- (Rs. Seven Lac only) is still lying with the OP1 since its payment. Therefore the Complainant is entitled to get refund along with interest. Now we are to adjudicate what will be interest component in case of refund of the paid amount, if the OP 1 and OP2 fails to deliver the physical possession of the flat. In this respect we are to rely on the Judgment passed by the Hon’ble NCDRC in the case of, VisheshSood& Another vs. M/s. Raheja Developers Limited, in the Consumer Case no-2923/2017, on 15.11.2019, wherein Their Lordships have held that
The developer shall refund the principal amount with compensation @ 12% p.a. from the respective dates of deposit till the date of entire realization together with cost, in default the amount shall attract compensation @ 14% per annum for the same period.
In another case passed by the Hon’ble Supreme Court of Pioneer Urban Land & Infrastructure Limited Vs. Govindan Raghvan (2019) 5 SCC 725 and Kolkata West International City (P) Limited vs. Devasis Rudra, (2019) CPJ 29 (SC) wherein it has been held by Their Lordships
That complainant cannot be made to wait indefinitely for possession of the unit. In the case of Kolkata West International City (P) Limited the Hon’ble NCDRC was pleased to hold that the refund shall be made along with interest @12% p.a.
Therefore having regard to the abovementioned judgments passed by the Hon’ble Supreme Court as well as the Hon’ble NCDRC we are of the opinion in case of refund of the paid amount by the OP 1 and OP2 to the Complainants, it will carry simple interest @12% per annum from 18.04.2015 till its entire realization.
Hence it is ordered that the consumer complaint being no. CC/95/2019 is hereby allowed on contest against the OPs with cost. The OPs are directed to deliver the physical possession and at the same time directed to execute and register the sale deed in favour and to hand over the certificate of completion of the building to the complainant in respect of the said flat admeasuring 700 sq. ft at the 3rd. floor with front facing of the building together with undivided proportionate share of land beneath the building situate at 138/1, Barrackpore Trunk Road, Kolkata 700108, after accepting a sum of Rs. 7,00,000/- (Rs. Seven lac only) as balance payable, out of full consideration value, from the complainant or in alternative to refund Rs. 7,00,000/- (Rs. Seven lac only) already paid by the complainant as part payment, along with interest @12% per annum with effect from 18.04.2015 and a compensation of Rs. 20,000/- (Rs. Twenty Thousand only) for deficiency of services and a litigation cost of Rs. 10,000/- (Rs. Ten Thousand only) within a period of 45 days from the date of passing this judgment, failing which the said amount(s) shall accrue simple interest @ 14% per annum till its entire realization, in default of which the complainant will be at liberty to put the entire decree in execution as per provision of law.
Let a plain copy of this judgement be supplied to the parties free of cost as per CPR.
Dictated and Corrected by
[HON'BLE MR. Partha Kumar Basu]
MEMBER
