FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

Brief facts of the case are that that the Complainant booked an apartment with the OP1 on 29.03.2014at HIGHLAND GREENS PHASE -1, 1 Bata Road, Maheshtala, Kolkata – 700140, measuring about 712 sq.ft and an Agreement was executed between the parties on 06.06.2014. Subsequently the Complainant paid an amount of Rs.22,08,346/- to the OP1 for the said flat and an amount of Rs.25,000/- was deposited by the Complainant to the OP1 towards legal fees and maintenance. OP1 failed to hand over the possession of the flat to the Complainant within stipulated period as per Clause 11(a) of the GTC. Possession of the said apartment has been delayed by 20 months. Moreover, after getting ledger balance from OP1 some discrepancies has been noticed by the Complainant. OP1 collected an amount of Rs.1,88,800/- for registration of the said apartment but actual cost of registration is Rs.1,54,260/- as per Directorate of Registration & Stamp Revenue, Govt. of WB. OP1 has had promised to avail 12% interest p.a. for advance payment on or before 31^st March 2017 as per letter dated 24.02.2017 & 19.04.2017. The Complainant credited the amount of Rs.1,04,000/- & Rs.27,500/- through NEFT on 06.03.2017 & 08.05.2017. OP1 has taken Common Area Maintenance Charge of Rs.13,300/- on 04.04.2018 before the hand over possession on 10.06.2019. As per Rule 13(c) of the GTC the allottee is liable to pay CAM to the OP1 on or from the date of possession of the apartment. As per Terms and Conditions of GTC the OP1 was to hand over the possession of the said apartment within 42 months from the date of allotment but OP1 has failed to fulfill the conditions. In GTC Rule 11(d), it is laid down that in the event of OP1 failed to hand over the possession of the apartment within stipulated period as slated in paragraph 11(a) then OP1 will pay compensation effective from the scheduled date of possession till the date of possession. The complainant made several efforts to communicate with the OPs but the OPs remained unturned. Hence the Complaint Petition.

OP1 contested the case by filing WV and denied all the allegations of the Complaint. Specific case of the OP1 is that the Complainant along with Sudipta Mondal Bera booked an apartment being 14A6, Tower 28 at Highland Greens. On 11.11.2017 OP1 addressed a letter to the Complainant for registration of the Deed of Conveyance in respect of the said apartment and was ready to handover the possession. At that time the Complainant was awaiting for availing second loan from the SBI which was sanctioned on 15.02.2018. After availing the second loan by the Complainant the OP1 informed the Complainant their intention to execute Deed of Conveyance and also issued a letter dated 05.04.2018 demanding CAM Charges from the Complainant. Due to availing of the second loan from the SBI and nonpayment of the legitimate CAM Charges at the Complainant’s end the delay had occurred. The Complainant finally made payments towards CAM charges on 06.06.2019 and on 10.06.2019 OP1 issued possession letter in respect of the said apartment. Therefore, no deficiency in service on the part of the OP1.

Upon service of notice OP2 did not appear before the Commission and WV is not filed for the OP2 within stipulated. Thus the case runs ex parte against them.

In support of their claim, contesting parties have tendered evidence and the Complainant has also relied upon necessary documents annexed with the complaint petition. We have heard argument on merit and have also perused the record.The Ld. Advocates for the parties vehemently argued and reiterated the facts.

The Point that falls for our consideration is whether there is any deficiency of service from the OPs and if so, how much the complainant is entitled for compensation.

 Admittedly the complainant has booked an apartment being No. 14A6 on the 14^th Floor in Tower-28 of Hiland Greens, Phase - 1.It is also true that the promised time for delivery of possession of the apartment was 42 months from the date of allotment i.e.  29.03.2014. The Complainant alleged that the OP did not offer possession of the Apartment within stipulated period. On the contrary the OP1 vide receipt No.H1MR/07837/19-20 & H1MR/07838/19-20 dated 06.06.2019 collected an amount of Rs.1,88,800/- as Registration Charge but the actual cost of registration is Rs.1,54,260/-. It is also alleged by the Complainant that OP1 has taken an amount of Rs.13,330/- as CAM Charges on 04.04.2018 before handing over the possession on 10.06.2019 of the said apartment. In this connection the complainant has referredthe Clause 11 and 13 (c) of the General Terms & Conditions. Clause 11 is reproduced below for ready reference.

11. POSSESSION:-

1. Subject to force majeure RDPL will endeavour to give possession of the Apartment to the allottee(s) within 42 months from the date of allotment of the Apartment.

2.   Force majeure, inter alia, include that will not be limited to non-availability or irregular availability of building materials, water supply, electricity other supplies or utilities, strike, slow down by/disputes within the contractor/ construction agencies employed/to be employed, war, lockout or civil commotion, terrorist action, litigations, acts of God, any act, any notice, order, rule or notification of the government and/or any other public or competent  authority or any change  in the policy of the government/statutory, bodies action or inaction or omission of any person or authority delay in certain decisions/grant of clearances by the statutory bodies and such other reasons beyond the control of RDPL.

3. RDPL  as a result of such a contingency arising reserves the right to alter or vary these General Terms & conditions or if the circumstances so warrant, RDPL may suspend the fulfillment of its obligations for such period as it may consider expedient and the allottee agrees not to claim compensation of any nature whatsoever for the period of such suspension.

4.  In the event, RDPL does not endeavour to give possession of the apartment to the allottee within the stipulated time [subject to force majeure as started in paragraph Ii (a)  and (b)], then RDPL will pay compensation to be calculated  at the rate of Rs.12.50 per sq. ft. of the chargeable  area of the Apartment per month, effective  from the schedule date of possessiontill the “date of possession” (as defined herein under) to such of the allottees who have not committed any default or delay.

Clause 13(c) of the GTC states that:

On and from the ‘date of possession’ of the Apartment, the allottee shall be liable to pay RDPL (or its nominee or nominees) all maintenance charges, rates, taxes, levies, outgoings, deposits, including security deposits or assessments pertaining to the Apartment wholly and pertaining to the common areas and sport and recreation facilities proportionately, without dissent or demur.

It is apparent as per the terms of Clauses11(a)and 13 (c)of the General Terms & Conditions, the possession of the apartment was to be delivered within 42 month from the date of allotment and CAM charges is to be paid from the date of possession.Allotment Letter was issued to the Complainant on 29.03.2014 and the said apartment was handed over to the Complainant on 10/06/2019.

Ld. Advocate for the OP1 argued that they have intimated the Complainant to take over the possession of the said Apartment vide letter dated 20.11.2017. On perusal of the records we find that three letters were issued by the OP1on 20.11.2017to the Complainant demanding final payment to handover the possession of the Apartment, asking for CAM Charges and expressing willingness to execute Deed of Conveyance. It is also submitted by the Ld. Advocate for the OP1 that it is not the case that they are responsible, if the Complainant did not take the possession of the Apartment despite being informed that the Apartment was ready for physical possession. On scrutiny of the records it is observed by us that there is no whisper in the four corner of the Complaint Petition that why the Complainant delayed to take over the possession of the said Apartment despite intimation was made by the OP1 vide letter dated 20.11.2017. Therefore we are inclined to consider the submission of the OP1.

Further, it is admitted by the OP1 that there was a delay of 2 months in handing over the possessionof the said Apartment. It is also argued by the Ld. Advocate for the OP1 that the Complainant delayed for 70 daysin payment of the 1^st installment, 24 days delayed in payment of 3^rd installment, 12 days delayed in payment of 4^th installment, 84 days delayed in payment of 7^th installment and 546 days delayed in payment of 8^th installment, in total 736 days delay has been caused on the part the Complainant which means more than 2 years. Ld. Advocate for the OP1 further submitted that as per 10 (b) of the GTC an interest of about Rs.20,2018/- was accrued to the delay of 736 days from which an amount of Rs.12,728/- was waived off by the OP1. The Complainant did not controvert this submission.

Another submission made by the Ld. Advocate for the OP1 that Stamp Duty of the for Registration of the said flat is Rs.1,61,800/- and Registration Fees is Rs.27,000/- , in total Rs.1,88,800/- . Tax invoice is submitted by the OP1 in this respect. But the Complainant did not adduce any evidentiary document in support of his claim that actual Registration Cost of the said Apartment was Rs.1,54,260/-. Therefore we have nothing but to decline the claim of the Complainant.

In the WV and Evidence-in-chief the OP1 admitted that they are ready to pay 12% interest towards rebate on advance payment of Rs.1,04,000/- and Rs.27,500/-. Therefore the Complainant is entitled to get the same.

Based on the discussion above the Complaint Petition is allowed on contest against OP1 in part and dismissed against the OP2 with direction upon theOP1 that OP1 shall pay 12%interest p.a. towards rebate on the amount of Rs.1,31,000/-(104000+27000) to the Complainant from the date of respective payments and aforesaid payment should be made within 30 days from the date of passing this order failing which the interest rate shall be increased to @18% p.a.

Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.

Copy of the Judgement be supplied to the parties as per rules.

Judgement be uploaded on the website of this Commission forthwith for perusal of the parties.