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 is 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 10/11/2017. Description of the alleged flat is one tiles flooring residential flat measuring approx 879 Eight Hundred Seventy Nine) Sq. Ft. (including stair and 20% super built area) in the First Floor (South-west Facing) 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 terms and conditions of the said Agreement i.e. MOU dated 10/11/2017 Developer did not deliver the physical position of the flat within the stipulated period dated 31/12/2018. "Flat will be delivered to the Purchaser within 31-12-2018". (Page No 12 of the agreement signed by Mr. Sri Rakesh Kumar Hirwani (O.P-2).
On 24th November 2018 O.P.No- 1&2 by making a declaration stated the following
“Anjana Chakraborty W/O Shri Narayan Chakraborty, Resident of P.O. + P.S. Maynaguri, booked a flat (Flat no - 1C, Block - 1) in 'BALAJI RESIDENCY' project by executing a sale agreement on 10th Nov 2017.As per above said agreement said flat's and over period is within 31st Dec 2018. But under some unavoidable circumstances the project work is delayed for a few months. Now it’s declared to her that the said booked flat will be handed over to her within 30th Jun 2019. If it is not done by the company then the company will be liable to pay penalty charges as per bank interest or as per sale agreement.”
Till date the complainant paid Rs. 14, 00000/- (Rupees Fourteen lakh only) directly to the O.P-No-1&2 from the account of Sri Narayan Chakraborty (Husband of the complainant.). O.P-No-1&2 received the amount from the complainant and also issued “MONEY RECEIPT” in the name of the complainant. (Copy annexed with the case record) As the complainant pays the entire amount to O.P-No- 1 &2 only then we issue notice upon O.P-No-1&2 only. Other opposite parties are fully aware of the fact. Complaint on so many occasions requested the O.P. No. - 1&2 to complete the flat immediately but it fell on deaf ears. 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. 14, 00000/- (Fourteen lakh only) to the Complainant along with interest @ 18% per annum calculated from the date 26/11/2018 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. 5,00,000/- (Five 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 21/03/2024 this commission admitted the case and also issued notice upon the opposite parties. On 27/03/2024 the representative of O.P-1&2 Mr. Sanjay Hirwani received the notice along with a copy of the complainant petition along with documents from this commission by hand with making endorsement. No written version was filed by any of the opposite parties in this case. On dated 25/04/2024 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. On 25/05/2024 learned advocate of O.P-1&2 filed a petition without an affidavit. He didn’t file any authorisation/agentnama/vokalatnama.
In point number one of this petition the learned advocate stated that “on 25th April the O.P-1&2 appeared before this commission”. But, on perusal of the daily order dated 25/04/2024, order no-03, it is found that on that specific date none appears on behalf of O.P-1&2 before this commission.
In point no three of the petition the learned advocate of O.P-1&2 stated that “the present case is near to be settled” and the O.P-1&2 prays that they are willing to agreeably resolve the dispute with the complainant before Lok Adalat.
The matter was not steeled between the parties through “UPBHOKTA LOK ADALAT” dated 25/05/2024. Complainant was present in person. The opposite parties No- 1&2 were absent on that day without taking any step. Previously the issue was duly communicated with the O.P-2 along with the advocate of O.P-1&2.
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. (Phone Number-8170005080). Many cases are pending before this commission against the same opposite parties on the same footings. The case numbers are CC/17/2024, CC/45/2023 etc. 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 the same allegation against them, it is easily presumed that the allegation of the complainant is true and should be redressed.
The CC/21/2024 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 Fourteen lakh Only (14,00000) with 9% interest from 26/11/18 within 30 days. Failing which applicable rate of interest will be 12% till realization.
2. O.P.-1&2 is directed to pay compensation of Rupees Two Lakh (200.000) to the complainant 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 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 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.
