SHRI REYAZUDDIN KHAN,MEMBER
This is an application U/s.35 of the C.P. Act, 2019. This is an application U/s.35 of the Consumer Protection Act, 2019 is at the instance of an intending purchaser against Siddha Real Estate Development Ltd. on the allegation of deficiency of service in a dispute of flat construction.
The fact of the case in brief is that the above mentioned Complainants come up with a public offer to purchase one residential flat.They approached by an application to the registered office of the OP1 on 08.01.2016.for apartment No.MR.1902 on the 19th floor having super built up area of 1400 sq.ft along with car parking space on the ground floor of the building named as”Marina” lying and situated at the land measuring 11.29 acres approximately in R.S Dag Nos,32,35 and 47 recorded in L.R Khatian Nos,2 and 819 Mouza-Palpara 11 no.7 etc.with various Dag nos,and 556 recorded in Khatian No.810,Mouza-Noapara,J.L No.9 being a divided and demarcated portion of Municipal premises No.561,Bonhoogly,Holding No.4 of Baranagar Municipality,ward No.15,Kolkata-700018 with an initial booking amount of Rs,31,000/(Rupees Thirty one thousand)only against the money receipt.The total consideration amount was fixed Rs,70,96,635/ (Rupees Seventy Lakh Ninty six Thousand six hundred thirty five)only inclusive of service tax.The OP2 the authorized signatory of OP1 issued an allotment letter along with the payment schedule.on 15.01.2016 asking the complainants to pay the sum of Rs,20,97,991 (Rupees Twenty Lakh Ninety Seven Thousand Nine Hundred Ninety One)only.Accordingly the complainants have paid the said amount via cheque Nos,338246 and 328247.The complainants stated that after receipt of the amount a sale agreement was executed between the complainants and OPs whereas OP2 signed the agreement on behalf of OP1 and OP9 signed on behalf of OP8 as authorized signatories on 19.03.2016.The complainants submitted that after execution of said agreement and receipt of the aforesaid money the OPs failed to start the construction and all of a sudden at the delay of more then 1year 7 months the work started and the same time the OPs raised another demand invoice dated 04.10.2017 an increased amount of Rs,7,59,696/ only instead of 7,09,663 a difference of Rs,50,033.The complainants objected the increased amount.The delay of 19 months made by the OPs caused an adverse impact on the fund planning of the complainants due to family medical emergencies and financial crunch due to the De-monetisation as one of the complainants works in Dubai,later,they expressed their inability to purchase the said flat along with car parking space and requested the OPs to refund the said earnest money as well as booking amount as early as possible.After receipt of the information the OPs asked the complainants to submit a reselling letter to the N.K Realtors and accordingly the complainants have submitted the reselling letter to OP1 on 13.01.2018.Thereafter,the complainants contacted the OPs officials to sort out the issue and every time they assured the complainants positively.On 17.07.2021and 08.08.2021 the complainant no.1 wrote letters ,emails to the customer care of the OPs company for refund of the said amount. The complainants further stated that the OP7 the Deputy Manager send an email to the complainants no.1 on 15.08.2021 wrote that upon cancellation of the agreement Siddha would refund the payment made by the complainants against the said flat firstly 20% of the total consideration amount of the flat shall stand forfitted as cancellation cost,and brokerage if any paid by the Siddha while booking the said flat in the name of complainants.It has also mentioned that refund would be made only after realization of the entire re-sale.Seeing the email,the complainants become astonished as there is no fault on their part and the OPs intentionally and deliberately stopped the construction work after taking the consideration amount of Rs,20,97,991 and they themselves delayed the said projected.The complainants send the advocate letter on 07.12.2021 to the OPs 1 to 6 asking them to refund the entire earnest money alongwith booking amount of Rs,31,000/ with an interest of 18% per annum from the date of deposit till realization. In-spite the receipt of the letter the OPs did not respond the same.Due to the nature and conduct of the OPsthe complainants have suffered mental pain and agony.It also establishes the deficiency in service and unfair trade practice. Finally,finding no other alternative the complainants compelled to file the case in the consumer commission and prayed for direction as mentioned in complaint petition for the ends of justice.
OP1 to 7 have contested the case by filing their Written Version contending inter alia that the complaint is not maintainable either in law or on fact, it is also barred by limitation. The complainants are not a consumer within the meaning of Consumer Protection Act,1986.The present complaint petition isspeculative,harassive,vexatious and is liable to be dismissed with cost.The OPs stated that there is no latches on the part of the OPs regarding delay in project as there are several permission which need to be obtained from different departments of the government which is beyond the control of the OPs.The OPs further stated that as the complainants admitted that due to paucity of fund they cancelled their booking and the OPs are not liable for cancellation.The OPs also assured that money will be refunded as per policy and terms and conditions of the agreement .There is no unfair trade practice and deficiency in service.Within validity period of completion of the project the complainants cancelled the agreement .The said application is devoid of any merit and not maintainable against the OPs.The complainants could not make out prima facie case against the OPs and the complainants are not entitled to get any relief os prayed for.
OP8 and 9 also contested the case by filing their WV.OPs stated that the case is not maintainable, harassive with intent for illegal gain.The further stated that they have no knowledge directly regarding receiving of any consideration amount from the complainants so they are not liable for the same.Regarding the reselling letter written to N.K.Realters also do not have any direct/indirect knowledge of the conversation of the OP1.The OPs stated that they did not make any fraud,unfair trade practice,or unscrupulous exploitation upon the complainants.Admittedly OPs entered into an Agreement dated 19.03.2016 with the OP1 and the complainants but only as a Transferor of the said land.OP8 is only liable to ensure the right and entitlement of the leased property to the OP1 and the complainants.Nothing more than that.The part and role of the OP8 is absolutely limited,.The complainants could not make out a prima facie case against the OPs and the complainants are not entitled to get any relief as prayed for.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs are deficient in rendering proper service to the Complainants?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainants are entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
Complainansts have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by the OPs.Submitted the BNAs by both the parties.
On perusal of the case,evidence led by the parties coupled with the documents annexed therewith, it would reveal that the complainants booked one residential flat being no MR.1902 on the 19th Floor having super built up area of 1400sq.ft along with car parking space on the groundfloor of the building named as Marina at Sidha Lake Ville project lying and situated at Municipal premises No.561,Bonhoogly,Holding No.4 of Baranagar Municipality ward No.15 Kolkata-700018 with an initial booking of Rs,31,000/(Rupees Thirty one thousand).OP2 who is the authorized signatory of OP1,issued the allotment letter along with demand letter on 15.01.2016.The complainants have paid Rs,20,97.991 (Rupees Twenty Lakh Ninety seven thousand nine hundred ninety one)only out of the total consideration amount of Rs,70,96,635/(Rupees Seventy Lakh Ninty six thousand six hundred thirty five)only.Due to the delay in the completion of the flat and also due the financial crunch of the complainants,they decided to cancel the agreement with the OP1 and requested for refund of the entire paid amount along with the booking amount too with a letter to N.K Realtors for re sale of the flat along with the car parking space. The OPs 1 to 7 decided to cancel the agreement and refund the paid amount on the ground of deduction of 20% of the total price of the said flat as cancelation charges and the realization would be made after entire re sale of the flat. The complainant raised objection of decision of the OPs.
It remains undisputed that OP1 issued allotment letter dated 15.01.2016 in respect of residential flat being no MR.1902 on the 19th Floor having super built up area of 1400sq.ft along with car parking space on the groundfloor of the building named as “Marina” at Sidha Lake Ville project lying and situated at Municipal premises No.561,Bonhoogly,Holding No.4 of Baranagar Municipality ward No.15 Kolkata-.It should also not be out of place to mention here that there is a payment schedule in the allotment letter.The materials on record make it clear that the complainants had paid of Rs,20,97,991 (Rupees Twenty Lakh Ninety seven thousand nine hundred ninety one)only against the subject unit on15.01.2016 with an initial booking of Rs,31,000/ also.
It is true that OPs1 to 7 failed to hand over the flat named “Marina” project till the 2017 which was at the delay of 1 years 7 months.It is well settled that after making payment of Rs,20,97,991/ as an advance payment of the consideration amount,the purchaser can not wait indefinitely for having a roof over his head.In the perspective, when the OPs have failed to complete the project in time as per sale agreement this itself amounts to deficiency in service.
In this regard a several Judgments cited “The Hon’ble Supreme Court in the matter of Experion Developers Pvt.Ltd v/s Sushma Ashok Shiroor in Civil Appeal No.6044 of 2019 through its Judgement dated 07.04.2022”.
In an another Judgment the Hon’ble Delhi State Consumer Disputes Redressal Commission under reference 2022(2) CPR 137(Del.) in the matter Mrs.Jasveen Kaur v. Parsvnath Developers Ltd., Complaint Case No.1618 of 2016 decided on 05.05.2022 is also found relevant to the present context. The Hon’ble SCDRC has been pleased to observe in Para 34 of the said Judgement “ A failure of the Developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service.”
It is an admitted fact that the complainant had partly paid the consideration amount Rs,20,97,991/ but the development of plot got delayed and demand notice was issued after 19 months from the first payment which shows the negligence and failed to keep the contractual obligation as per sale agreement.At the same time the complainants suffered a set back for his financial disorder of business which resulted cancellation of the booking.
In absence of any explanation for failure to comply with the stipulation of work in question, we have no hesitation in concluding that the OPs have committed deficiency in service and also have indulged in unfair trade practice. The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainants have invested huge some of money to the OPs for his residential flat purpose. The OPs failed and neglected to perform since the hand over of the flat of the land in question to the complainants and the act and conduct of the OPs are a clear case of deception, which resulted in the injury and loss of opportunity to the complainants. The complainants cannot be wait indefinitely to get their residential flat.The complainants have suffered mental agony, pain and harassment. It is settled principle of law that the compensation should be commensurate with loss suffered and it should be just, fair and reasonable and not arbitrary. To get relief, the complainants have to wage a long drawn and tedious legal battle. In these circumstances, the complainants are entitled to get relief/reliefs, compensation and litigation cost.
No privity exists between the complainants and the OP8 and OP9.Complainants have in no occasion to implead OP8 and OP9 as a party to this case.Thus,instant consumer case against the OP8 and OP9 is dismissed .
Keeping in view of the above cited Judgments and based on the facts and circumstances of the present case,we are of the considered opinion that the Complainants have established the case against the OPs1 to 7
. In view of above,the complaint is disposed of on contest against the OPs1to 7 with the following direction:-
Hence,
Ordered
i).The OPs1 to 7 jointly or severely is directed to refund the balance booking amount of Rs,20,97,991 (Rupees Twenty Lakh Ninety seven thousand nine hundred ninety one)only along with the booking amount of Rs,31,000(Rupees Thirty one thousand)only with compensation in the form of simple interest @9% P.A in favour of the complainants from the date of conciliation of booking( i.e,15.01.2016) till its realization.
ii) The OP1 to 7 jointly or severely is directed to make payment of a sum of Rs,10,000/ as cost of litigation in favour of the complainant
Complainants put the order into execution, if the OPs transgresses to comply the order according to Consumer Protection Act, 2019 after the expiry of 60 days.
