Date of Filing: 02/08/2021

Date of Judgement: 30/10/2023

Sri Sudip Niyogi, Hon’ble President

                 Brief Facts

Complainant had entered into an agreement for sale on 20/7/2016 with Respondent No. 1 to 7 in order to purchase one 3 BHK Flat No. 3BI IF alongwith a car parking at “SANHITA” project, which is a township for lower and middle income groups proposed to be developed by the Respondent No. 1 at Vill-Langal Benki within Bhagwanpur Gram Panchayat, P.O. Pithapukur, Satuli within P.S. Kashiput, South 24 Parganas.  Following his application No. 754798 dt. 29/2/2016, the said flat was allotted to him.  The consideration was fixed at Rs.22,67,390/- as revealed from the agreement for sale.  The said flat alongwith car parking was agreed to be delivered within 36 months with a grace period of 6 months from the date of allotment i.e. 4/5/2016.  There would be benefit of additional grace period of 180 days for events of force majeure.  He made payment as and when demanded by Respondent No. 1 as per schedule in the GTC and Agreement for Sale and paid up to six installments and one installment of a four-wheeler parking.  He already paid Rs.16,34,293/- as per schedule excluding GST and interior cost.  He obtained housing loan from United Bank of India, now Punjab National Bank and has been paying Rs.16,824/- as EMI to the Bank since 2017. 

During his visit at the construction site in the month of July 2000, he found incomplete structure of the flat allotted to him and took photographs.  As there was delay in completing the flat and handing over the same to him, he requested for refund of the amount of advance paid by him, alongwith interest.  But, the Respondent failed to comply with his request and that is why complainant ultimately approached this commission for necessary order in the form of direction upon the OPs to refund the full amount of money paid by him alongwith interest etc. 

It is found that on behalf of the Respondent namely – Simoco Systems and Infrastructure Solutions Ltd. and the Managing Director of Simoco Systems and Infrastructure Solutions Ltd. filed one written statement denying the claim of the complainant.  According to them, as per the agreement made between the parties, the disputes or differences would be amicably settled or resolved by arbitration.  So, complainant filed the complaint without complying with the said clause of arbitration in the agreement.  So, they prayed for dismissal of the petition of complaint.  On behalf of OP 8 Bank one written version was filed admitting that loan was sanctioned in favour of the complainant and according to them they had disbursed money in the account of the builder at the time of sanction and as on 29/11/2022 there is a sum of Rs.14,84,214.29 due and payable to the Bank.  As no other OPs appeared and filed any written version, the instant case was heard exparte against them.

                                                                Findings

The Agreement for Sale as produced by the complainant, is found to have been entered into on 20/7/2016 between Respondents 1 to 5.  Respondent 6 to 7 are also found to be the Directors of Respondent No. 1.  It is further found that one confirmation of allotment following the application of the complainant was issued on 20/6/2016 on behalf of the respondents informing the complainant that Flat No. 1F, 1^st floor in building No. 3B1 was allotted to him. 

According to the complainant, he claimed in his Affidavit-in-chief that he already paid Rs.21,84,647/- including service tax, interior cost etc.  However, in his written argument, he claimed that the Respondent acknowledged receipt of Rs.21,77,503/- towards advances by the complainant.  The copies of the document namely, tax invoices etc. reveals payment of Rs.21,77,503/- in all.  Be it noted here that no evidence in the form of affidavit was produced on behalf of said Respondent No. 1 and its Managing Director and OP 8.

Now, the grievance of the complainant is that the Respondent could not complete the project.  It is still remaining in an incomplete stage, though the stipulated period for delivery of the flat was already over.  So, he prayed for refund of the amount advanced by him.  We find from the correspondences that on repeated occasions, complainant requested the respondents i.e. the developers for refund of the money, but they did not comply with his request and therefore the complainant was compelled to approach this commission to get back his hard-earned money which he had invested in order to fulfill his dreams by way of purchasing the scheduled flat.  The contention of the respondent that despite their being one arbitration clause in the agreement, the complainant filed this case before this commission for which the instant case is not entertainable, is not acceptable at all as despite being an arbitration clause in an agreement there is no bar to seek redressal before the consumer commission as per the C.P. Act, 2019.

Thus, having gone through the entire materials on record, we are of the opinion that there are deficiencies in service on the part of the respondent No. 1 to 7 in not being able to handover the flat and the car parking space agreed to be purchased by the complainant, for which he made huge advances.  The complainant is entitled to reliefs in this case in the form of getting refund of the advance made by him alongwith interest @9% per annum.  It is also found that the complainant requested for refund of money by writing on 11/8/2020 though subsequently he also made similar requests on several occasions.  So, the respondents are liable to pay interest from the date of 11/8/2020.  This apart, he is also entitled to Rs.8,000/- towards cost of litigation.  However, this case is liable to be dismissed against respondent No. 8. 

Accordingly, it is

ORDERED

That the instant complaint stands allowed on contest against Respondent No. 1 & 2 and exparte against respondent No. 3 to 7 and dismissed against respondent No. 8 on contest.

Respondent Nos. 1 to 7 are hereby directed to refund Rs.21,77,503/- alongwith interest @9% per annum from the date of 11/8/2020 to the complainant.  Respondents are also to pay Rs.8,000/- as cost of litigation to the complainant.

The aforesaid respondents are directed to comply with this order within 45 days from the date of this order, failing which, the OPs are liable to pay the entire amount with interest @12% per annum until realization and the complainant shall be at liberty to proceed in accordance with law.

Dictated and corrected by me

President