FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the Complainant, in brief, is that on 19/07/2014, Complainants executed an Agreement for Sale with the OP for a residential flat at TERRACE HEIGHTS comprised along with a covered car parking area in Block 02 being Unit No.A2 on 2nd Floor, measuring about 1835 sq.ft super built up area at Mouza- Bajetaraf, Rajarhut, North 24 Parganas, by paying Rs.18,79,585/- towards advance amount out of total consideration of Rs.56,63,250/- vide Receipt No. GCTH/00146/14-15 dated 30/06/2014 for Rs.2,57,725/-, Receipt No. GCTH/00158/14-15 dated 16/07/2014 for Rs.9,10,000/-, Receipt No. GCTH/00157/14-15 dated 19/07/2014 for Rs.61,680/- Receipt No. GCTH/00182/14-15 dated 13/08/2014 for Rs.5,88,000/- and Receipt No. GCTH/000180/14-15 dated 19/08/2014 for Rs.62,000. Thereafter the Complainants visited the office of the OP for having confirmation as to progress of the said project but no positive reply is received from the OP. Being frustrated the Complainants claimed to return the deposited amount along with interest vide letter dated 22/06/2019. In respect of the said letter the OP agreed to refund the deposited amount as well as a cancellation agreement was executed between the parties on 27/06/2019.Complainants also tried to resolve the dispute through Central Consumer Grievance Cell but the OP neither contacted the said Office nor submitted their WV on the issue. As a result, till date the complainant neither got the flat nor got the refund of deposited money. Finding no other alternative complainant has filed the instant consumer complaint for getting reliefs.
OP contested the case by filing W.V. contending inter alia that the instant complaint is baseless, fabricated, false and also this Forum has no jurisdiction to hear the case. The case of the OP is that complainant has booked the said flat for commercial purpose hence not consumer within the meaning of Consumer Protection Act. Further it is known to everyone that due to slow down economy, infrastructure sector is going through a bad period which beyond the control of OP. The delay has been caused due to Force Majeure events and developer cannot be held responsible for such delay. OP denied that there was any verbal communication between the parties and the OP has assured the complainant to deliver the said flat in the month of February 2019. Moreover demand made by the complainant was unacceptable as the complainant is liable to pay the cancellation charge as mentioned in the article 4 of the Agreement for Sale. Further, the complainant neglected to make timely payments proving that there has been a breach of obligation on the part of the complainants which delayed the progress of the project. Therefore, the OP has prayed for dismissal of the instant complaint.
The complainant has tendered evidence supported by affidavit. But OP1 has failed to reply to file the E-chief. We have gone thoroughly evidence adduced by the parties including documents on record and gave careful consideration to the arguments advanced by the Ld. Lawyers for the parties.
It is admitted fact that the Complainant executed an Agreement for Sale on 19/07/2014 with the OP for one residential flat being Unit No. A2 in Block-02 on the 2ndFloor situated in the TERRACE HEIGHTS by paying Rs.18,79,585/-. out of total consideration amount of Rs.56,63,250/- and the OP issued Money Receipts against such payments vide Receipt No. GCTH/00146/14-15 dated 30/06/2014 for Rs.2,57,725/-,Receipt No. GCTH/00158/14-15 dated 16/07/2014 for Rs.9,10,000/-, Receipt No. GCTH/00157/14-15 dated 19/07/2014 for Rs.61,860/-,Receipt No. GCTH/00182/14-15 dated 13/08/2014 for Rs.5,88,000/- and Receipt No. GCTH/00180/14-15 dated 19/08/2014 for Rs.62,000/-.
It has been argued by Complainants that despite executing the Sale Agreement and receiving the Payments on Agreement the OP did not come up with the progress information of the said project work. On perusal of the record it is found that it is clearly mentioned in the Article 9 Clause (i) of the Agreement for Sale that the possession of the said flat will be delivered within 24 months from the effective dates. But despite passing of 2/3 years the OP failed to deliver the possession of the said flat. On perusal of the record it is found the Complainant sent a letter dated 22/06/2019 to the OP demanding the deposited amount along with compensation. Photocopy of the Cancellation Agreement is adduced by the Complainants signed by the Complainant No.2 and the authorized signatory of the OP but the said Agreement does not have any official seal on the part of the OP. We think it is deficiency in service on the part of the OP. Moreover, photocopy of letter dated 22/06/2019 sent by the Complainant to the OP show that complainant requested the OP to cancel the said Agreement and refund the booking money i.e. Rs.18,79,585/- for the reason that since the booking was made long back but the OP did not start the construction work of the said flat for which the prayer for refund. In our view, there is justification in such submission from the side of the complainants.
Controverting the allegation made by the Complainant, Ld. Advocate for the OP argued that the alleged dispute in the petition of Complaint is not a consumer dispute within the meaning of the C. P. Act as the Complainant booked the said flat for the commercial purpose. We do not find any logic in such submission. We have travelled through the documents on record and found that Complainants booked a flat in the said residential project of the OP against Rs.18,79,585/-. We do not find any piece of document where from it would prove that Complainant is not consumer under the OP. No such document has been found in the record wherefrom it can be established that OP has started the construction work of the subject flat after receiving booking money. Thus, this gesture of the OP1 can be termed as unfair trade practice.
Another submission has been placed before us from the side of the OP that throughout India including in West Bengal infrastructure sector is going through a very bad period due to Demonetization and for such reason there has been a slowdown in overall development, which has adversely affected the progress of the said project. As the economic slowdown beyond the control of OP, they herein cannot be held responsible and the delay has been caused due to Force Majeure event. As such, the owner and / or developer are not liable for such delay. In our considered view, such a plea cannot be construed as Force Majeure circumstances because referring a decision of Hon’ble Supreme Court reported in II (2000) CPJ 1(Ghaziabad Development Authority Vs. Union of India) the Hon’ble National Commission in a decision reported in III (2007) CPJ 1( Kamal Sood Vs. DLF Universal Ltd.), has observed that it is unfair trade practice on the part of builder to collect money from the prospective buyers without obtaining the required permissions, such as zoning plan, layout plan etc. It is the duty of the developer to obtain the requisite permissions or sanctions, in the first instance and, therefore, recover the consideration money from the purchaser. Therefore, the alleged obstructions or hindrance cannot be considered as Force Majeure circumstances. So, OP was under obligation to handover the subject flat in favour of the Complainant within the stipulated period and failure on the part of OP to handover the subject flat within the stipulated period amounts to deficiency in services on the part of the OP.
Further Ld. Advocate for the OP submitted that the Complainant is liable to comply as per Agreement for Sale and also liable to pay the Cancellation Charge. In this regard we are opined that, the Complainant cannot made to wait indefinitely for the possession of the flat, when there is absolutely no response from the OP1. The primary responsibility of a builder is to construct the flat and deliver the possession of the said flat to the purchaser within stipulated period as per Agreement for Sale for which the developer has received the money from the purchaser. If the builder does not deliver upon his contractual obligations and at the same time show the reason for the delay in completion of the said flat and offering its possession to the purchaser was on account on circumstances beyond his control, this would constitute deficiency on the part of the developer in rendering service to the consumer.
In the result, the Consumer Complaint is allowed on contest in part against the OP with a following direction:
- OP is directed to refund the deposited amount of Rs.18,79,585/- with simple interest @8% p.a. from the respective dates of payment is made, together with litigation cost of Rs.10,000/- and Rs.20,000/- as compensation for harassment and mental agony to the Complainant.
- This amount to be paid by the OP to the Complainant within 45 days from the date of passing this order, failing which, the deposited amount shall attract interest @12% p.a. for the same period.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order in a separate petition.
Copy of the judgement be supplied to the parties as per rules. Judgement be uploaded on the website of this Commission forthwith for perusal of the parties.
