The instant case has been filed by the complainant u/s 35 of CP Act, 2019 against the O.Ps after the possession of flat is not delivered within the stipulated time after receiving a huge amount from the complainant.

Facts of the case-

The Opposite Party Nos.1 is a proprietor firm represented by its proprietor Sri Rakesh Kumar Hirwani (O.P-2) are Developers and Opposite Party No.3 to 11 are the owners of the property. There was an Agreement between the Developer and the Owner for developing the property. There is a MOU between the Complainant, owners of the property and the Developer being Opposite Parties Nos.1 to 11. The agreement was signed by the O.P-No-1&2 and the complainant. Opposite parties entered into an agreement with the Complainant i.e. one of the intending buyers on 21/04/2016. “Description of the suit flat stated in the complainant petition. One tile flooring residential flat measuring approx 879 Eight Hundred Seventy Nine) Sq. Ft. (including stair and 20% super built area) in the Fourth Floor (South-west Facing)and one open garage measuring approx 150 Sq.Ft.of P+ Four storied residential building with an impartible right/share in the land on which the same stands”.

PLOT NO.........106 

SHEET NO.......24

KHATIAN NO........6620, 6755 & 6756

J.L. NO.........05

P.S. AND A.D.S.R.O.......JALPAIGURI

MOUZA.......KHARIA

DISTRICT....JALPAIGURI

PARGANA........BAIKUNTHAPUR

As per the payment schedule printed in the deed of agreement to sale (Page-12) complainant paid total consideration amount Rs. 19,00,000/- (Rupees Nineteen lakh) Only for the said flat to the Developer (O.P-No- 1 &2) which is received and acknowledged by the Developer (O.P-No- 1 &2). Rupees Ten lakh (Rs-10, 00000) paid through bank cheque and Rupees Nine lakh (Rs-9, 00000) through cash. This agreement to sale (Page-12) is signed by the complainant and the Developer (O.P-No- 1 &2) only.   As the complainant pay the entire amount to O.P-No- 1 &2 only then we issue notice upon O.P-No-1&2 only. Complainant has no claim against the other Opposite parties (O.P-3 to 11).  Other opposite parties are fully aware about the fact.  Complainant on so many occasions requested the O.P. No. - 1&2 to complete the flat immediately but it fell on deaf ear.  The Seller/developer continued to take time with one excuse and another and has not done anything. Complainant has also come to know that the O.Ps have been contemplating to enter into agreement with some other developer to hand over the land upon which a portion of the flat has been constructed and in that case the complainant will be totally deprived of the possession and registration of his flat as the new developer will start to enter into agreement with other intending buyers. From the date of payment the complainant is repeatedly in touch with the OPs. At this stage finding no other alternative the complainant filed this case before this commission.

Prayer of the complainant –

a) Direct the O.P. No.- 1 & 2 to hand over the flat to the Complainant and get it registered in favour of the Complainant immediately.

b) Direct the O.P. No. 1 & 2 to return back the money amounting to Rs. 19, 00000/- (Nineteen lakh only) to the Complainant along with interest @ 18% per annum calculated from the date 01/01/2019 till the date of full payment as the flat is a incomplete flat and has not been completed by O.P. No.- 1 & 2 to deprive the Complainant of having the complete flat in due time.

c) If O.P. No. 1 & 2 refrain from getting the flat registered in favour of the Complainant immediately, direct the registration authority to get the partly completed flat registered in favour of the Complainant.

d) Direct the O.P. No. 1 & 2 to pay compensation of Rs. 30,00,000/- (Thirty lakh) for suffering and expenses sustained by the Complainant owing to omission and negligence of the O.P.s in completing and handing over the flat to the Complainant and getting the same registered in favour of the Complainant.

e) Direct the O.P. No. - 3 to 11 to abstain from making any fresh agreement with some other developer and/or to create any third party interest in respect of the said land and building or in any other manner alienate or transfer the said land and flat to any third party.

f) Cost of the suit.

g) Pass such other order or orders as Honourable Forum deems fit and proper;

Decision with reasons-

The Real Estate (Regulation and Development) Act, 2016 (RERA) provides various avenues for homebuyers to seek compensation in case of delayed possession by builders. Several Supreme Court judgments have further clarified and interpreted these provisions, offering important guidance to aggrieved buyers.

In the case of Fortune Infrastructure v. Trevor D'Lima, it was established by the Honourable Supreme Court that an individual cannot be subjected to an indefinite waiting period for the possession of an assigned apartment. Such an individual retains the right to request reimbursement of the sum he has paid, accompanied by appropriate compensation.

In Haryana Urban Development Authority v. Suman Devi the Hon’ble Supreme Court held that buyers are entitled to seek a refund of the entire amount paid, along with interest and compensation, if the possession is not delivered within the stipulated time. The Court emphasized that the builder has a contractual obligation to deliver possession on time and that any delay constitutes a deficiency in service.

In Lucknow Development Authority v. M.K. Gupta case, the Hon’ble Supreme Court held that buyers have the right to claim not only the refund of the amount paid but also the interest and compensation for mental agony due to the delay. The Court held that such compensation is warranted when the builder fails to fulfil its obligations under the agreement.

Noida Authority v. Bachpan Bachao Andolan the Hon’ble Supreme Court, in this case, reiterated that the builder-developer is obligated to deliver possession within the agreed-upon time frame. If there is a delay, the buyer is entitled to seek compensation and relief under consumer protection laws.

In the following cases the Hon’ble Supreme Court also ruled in favour of the plaintiffs i.e those who bought the flats. 

(i)                  EXPERION DEVELOPERS PVT. LTD. ...APPELLANT(S) VERSUS SUSHMA ASHOK SHIROOR …RESPONDENT(S) APRIL 07, 2022

(ii)                      M/S SUNEJA TOWERS PRIVATE LIMITED & ANR. ….APPELLANT(S) VERSUS ANITA MERCHANT ….RESPONDENT(S) APRIL 18, 2023.

Himadri Choudhury v. State of NCT of Delhi (2019): The Delhi High Court ruled that buyers are entitled to compensation for the period of delay even if the agreement does not explicitly mention the compensation clause. The Court held that compensation for delay is a fundamental right of the buyer and cannot be denied.

In Sunil Kumar Taneja Vs RPS infrastructure limited (01/01/2024) the Hon’ble NCDRC stated as under (I 2024 CPJ 369 NC) Failure to offer possession -Refund amount of Rs. 10 lakh deposited by Petitioner along with interest to be calculated @ 9% per annum from date of filing of Complaint, till realization within period of six weeks of this Order, failing which rate of interest shall stand enhanced to 12% per annum Rs. 50,000 as cost of litigation.

In Afron Roque Antao & 2 Ors.  Vs M/S.ECM Builders & 4 Ors (07/12/2023) the Hon’ble NCDRC stated as under (I 2024 CPJ 74 NC). Non-delivery of possession by the opposite party liable for deficiency in service and unfair trade practice - Is evident Directed to repay entire amount of Rs. 68, 51,325 with 9% interest from respective dates of deposit failing which applicable rate of interest will be 12% Pay complainant litigation cost of Rs. 50,000.

Points for consideration

1)   Whether the complainant is a consumer?

2)   Whether the case is maintainable under the C.P. Act 2019?

3)   Whether there is any deficiency in service on the part of the O.P. as alleged by the complainant?

4)   Is the complainant entitled to get any award and relief as prayed for?

All the points are taken up together for consideration and decision.

Complainant is a consumer of the O.Ps. The case is maintainable in this commission under the C.P. Act 2019.

On 20/03/2024 this commission admitted the case and also issued notice upon the opposite parties. On 23/03/2024 the learned lawyer for O.P-1&2 files Vokalatnama. No written version was filed by any of the opposite parties in this case. On dated 16/05/2024 this case is fixed for run ex-parte against the O.P-1&2.

The opposite parties pay no attention to this commission. They deliberately avoided the proceedings against them. On22/05/2024 we transfer the case to “UPBHOKTA LOK ADALAT” for settlement between the parties as another case on same matter was already transferred for settlement. The matter was not steeled between the parties through “UPBHOKTA LOK ADALAT” dated 25/05/2024. Complainant was present in person on that day. When the lok-adalat initiative was failed, the record was transferred to the regular bench. On 27/05/2024 the record was taken up for final hearing, that time the complainant files a petition for restrain the opposite parties from sealing the alleged property to another party. That petition was heard, considered and direction was send to the appropriate authorities. The opposite parties No- 1&2 were absent on that day without taking any step.

It is to be mentioned that in case no EA/01/2020 the Mr. Rakesh Kr. Hirwani (O.P-2) pays the awarded amount through his cousin brother Mr. Sanjay Hirwani of Siliguri, Dist-Derjeeling. In all other pending cases Mr. Sanjay Hirwani received the notice from this office by making an endorsement as a sole representative of the O.P-1&2. After receiving the notice from this office he did not turn out. Even no written version is filed by the O.P-1&2.

We have gone through the records and considering the contentions made in the complaint and also the evidence in support of such contentions as sworn by the complainant and also the copy of documents filed we find that the complainant has proved her case against O.P-1 & 2 only.

The O.P.-1&2 is guilty of deficiency in services and unfair trade practices as they have not handed over the possession of the alleged flat to the complainant after receiving a huge amount from the complainant. Complainant is also suffering from mental harassment from the OPs.

After the wilful absence of the opposite parties we don’t have any other alternative to believe the allegation made by the complainant which was filed by supporting affidavit. The Opposite Parties have failed to deliver services as per agreement / MOU signed with the complainant. In another case when the same opposite party (O.P-1&2) already paid the amount according to the final order on same allegation against them, it is easily presumed that the allegation of the complainant is true and should be redress. 

The CC/17/2024 succeeds and is allowed ex parte against the O.Ps. .

Therefore, the complainant is entitled to the relief as specified below.

All points are disposed of. In the result the case/ application

Hence, it is

ORDERED

1.     O.P.-1&2 to hand over the ready to use flat (According to the agreement) to the Complainant and get it registered in favour of the Complainant immediately without taking any further amount from the complainant for any purpose  or refund Rupees Nineteen lakh Only (19,00000) with 9% interest from 01/01/2019 within 30 days. Failing which applicable rate of interest will be 12% till realization.

2.       O.P.-1&2 is directed to pay complainant compensation of Rupees Two Lakh (200000/-) to the complainant for guilty for their deficiency in services, adoption of unfair trade practices and mental harassment of the complainant.

3.     O.Ps are directed to stay away  from making any fresh agreement with some other developer and/or to create any third party interest in respect of the said land and building or in any other manner alienate or transfer the said land and flat to any third party till compliance of  this final order.

4.       O.P.-1&2 is directed to deposit Rs. 10,000/- (Rupees Ten Thousand Five Hundred Only) to the consumer legal aid account of this commission.

The order should be complied within 30 (Thirty) days from the date of this order failing which the complainant/O.P will be at liberty to put the order in execution according to provision of law. 

Let a copy of this judgment be given to the parties free of cost.