FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.35 of the C.P. Act, 2019.
Brief facts of the case are that the OP is a Builder & Developer Company. The complainant No. 1 vide application No. 201842 had applied for 3 BHK Apartment in the project Hiland Greens Phase-II at Batanagar, Maheshtala of the OP and pursuant of such application, OP vide letter dated 08.12.2014 allotted Apartment No. 6B2, 6th floor, HG2-Tower -15. The total consideration price of the Apartment and covered car parking is Rs. 35,65,000/- and the complainants have paid Rs. 35,02,846/- to the OP. As per General Terms & Conditions, possession of the apartment and covered car parking is to be handed over within 42 months from the date of allotment i.e. 08.12.2014. The name of complainant No. 2 incorporated in the booking details of the apartment and car parking against payment of Rs. 5,000/-. OP miserably failed to comply such terms & conditions on different plea. Legal Notice dated 21.10.2020 was unattended. Alleging unfair trade practice and deficiency in service on the part of OP Builder, the complainants have filed the present complaint.
OP has filed their WV beyond the period of 45 days. As such, WV of the OP is not accepted. Being aggrieved and dissatisfied against such order, Complainants preferred Revision Petition being RP No. 37/2021 before the Hon’ble SCDRC. The Hon’ble SCDRC has been pleased to direct this commission to accept the WV filed by the OP subject to payment of cost of Rs. 1,000/- . The OP failed to pay cost to the complainants. Thus, the case has proceeded ex parte against the OP.
In support of their claim Complainant No. 1 Mrs. Mitali Mondal tendered evidence supported by an affidavit and also relied documents annexed with the complaint petition. Complainants have also filed BNA. We have heard argument on merit and have also perused the record.
The point that falls for our consideration is whether there is any deficiency of service from the OP Builder and if so how much the complainants are entitled for compensation.
We note that the complainants have booked 3BHK Apartment being No. 6B2 on the 06th floor, HG2-Tower-15 and a covered car parking at Hiland Greens Phase II Project at Batanagar Maheshtala against application No. 201842 and the OP vide letter dated 08.12.2014 confirmed the said booking subject to certain terms & conditions. Total Sale Consideration of the subject Apartment and car parking is Rs. 39,01,646/-. On perusal of the photocopies of money receipts, it is clear that the complainants have paid Rs. 35,07,846/- to the OP. Complainants have obtained loan from Bank and paid Rs. 35,07,846/- out of Sale Consideration. As per General Terms & Conditions possession of the apartment and car parking is to be handed over within 42 months from the date of allotment i.e. 08.12.2014 but the OP did not offer possession of the apartment and car parking despite several requests. On the contrary, they invoked Clause-11 of the General Terms & Conditions vide e-mail dated 03.10.2020. Several communications were exchange between the parties but no fruitful result is forthcoming.
We find that force majeure clause mentioned in the General Terms & Conditions is totally untenable. The OP has failed to place any evidence on record to prove that the reasons of delay was beyond their control. Complainants cannot be made to wait indefinitely for delivery of possession of the subject apartment and car parking. Complainants have not committed any default or delay in making payment. Ultimately, complainants opted for cancellation of booking and asked for refund of booking amount by e-mails and legal notice. Purchasers are justified in cancelling the booking and they cannot be compelled to accept the possession whenever it is offered by the builder. The Complainants/Purchasers are legally entitled to seek refund of the money deposited by them along with interest, litigation costs with appropriate compensation. Act of the OP in relying on Force Majeure Clause while retaining amounts deposited by the complainants, is not only act of deficiency in service but also of unfair trade practice.
In the light of the above discussion, we find both deficiency in service within the meaning of section 2 (11) and Unfair Trade Practice within the meaning of Section 2 (47) of the Consumer Protection Act, 2019 to be well and truly evident on the part of the OP.
In view of the above discussions, the consumer case is allowed ex parte against the OP with following directions:-
- OP Riverbank Developers Pvt. Ltd. is directed to refund Rs. 35,07,846/- (Rupees thirty five lacs seven thousand eight hundred forty six) only to the complainants with simple interest at the rate of9 percent p.a. from the respective dates of deposit till the actual date of payment failing which the amount shall attract interest at the rate of12 percent from the same period.
- OP is further directed to pay to the complainants the sum of Rs. 1,00,000/- (Rupees one lac) only towards compensation for the inconvenience and mental agony suffered by the complainants on account of enormous delay in the construction of the project, negligence and deficiency in service of the OP.
- OP is also directed to pay Rs. 10,000/- (Rupees ten thousand) only to the complainants towards the cost of litigation.
OP shall pay the aforesaid awarded amount to the complainants within 08 weeks from the date of passing of this order.
Thus, the Consumer Case is disposed off ex parte against the OP.
Copy of the judgment be supplied to the parties as per rules and also be uploaded forthwith on the website of this commission for perusal of the parties.
Order No. 10 Dated- 22.02.2022
Record is put up on the prayer of the complainants.
Complainants file an application praying for rectification of the final order dated 21.02.2022 passed in this case on the ground that there is a typographical mistake at page No. 2.
The impugned application is taken up for hearing.
Heard the complainant-2 in person. Perused the impugned application coupled with final order dated 21.02.2022. Admitted fact that in the final order there is a typographical mistake in second line of page No. 2. In the second line of page No. 2 OP should be deleted and its place complainants should be written. This omission is purely a typographical mistake. Now, it is settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake, typographical mistake or/and error arising out of an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention.
Considering the above aspect, the typographical mistake should be rectified as complainants in place of OP in the second line of page No. 2. Rectify the final order dated 21.02.2022. Accordingly, the prayer of the complainants is allowed.
