Ld. Advocate(s)
For Complainant: Debraj Das
For OP/OPs : None
(2)
Date of filing of the case :05.03.2021
Date of Disposal of the case : 05.07.2023
Final Order / Judgment dtd.05.07.2023
Complainant above named filed this complaint u/s 35 of the Consumer Protection Act, 2019 against the aforesaid opposite parties praying for order of refund of amount of Rs.12,94,750/-, interest at the rate of 18% per annum, compensation amounting to Rs.1,50,000/-, compensation at the rate of Rs.10 per Sq. ft. of the super built area per month with effect from 01.08.2016 onwards, cost of the case amounting to Rs.50,000/- and other reliefs.
He alleged in the petition of complaint that he is a consumer and OP No.1 & 2 are service provider. He further stated that he had applied for getting a flat at the project developed by the OPs in the name and style as Usashi Prince Town as intending purchaser. OPs allotted a flat in his favour. Complainant inspected and satisfied with the site. Thereafter, he booked one 2BHk flat on 01.08.2016 with an area of 609 Sq. ft. more or less in the 2nd floor with the consideration of Rs.12,39,752/-. Rate was fixed at the rate of Rs.1790/- per Sq. ft. Amenity charge was fixed Rs.1,50,000/-. Complainant was asked to pay Rs.12,94,750/- including Service Taxes as full and final consideration money. Complainant has paid Rs.1,40,000/- on 01.08.2016 as advance by three cheques. He also paid Rs.11,54,750/- by a cheque dated 01.02.2017. Thereafter, OPs issued one final settlement letter on 30.01.2017 to the complainant. Thereafter, unregistered agreement for sale was also executed in between complainant and OPs on 17.02.2017. As per said agreement OPs will be liable and responsible to hand over the peaceful vacant possession of the said flat. But it is unfortunate to state that even after elapsing of the stipulated period, OPs not yet handed over the physical possession of the said flat which was matured on 17.06.2020. It has mentioned in the agreement that if the vendor fails to hand over the physical possession of the said flat within stipulated period then vendor will refund the unrest money of consideration, but on several occasions complainant has contacted with the OPs but they very much reluctant to refund the money on the other hand they avoided and misbehaved with the complainant which is very much illegal and unfair trade practice. After visiting construction site complainant came to know that OP’s authority has not make any type of construction thereon except the foundation at the projected area and illegally grab the amount of the complainant. Thereafter, he sent a letter on 12.11.2020 to the OPs in revocation of the sale agreement and also claimed the money amounting to Rs.12,94,750/- along with interest at the rate of 18% per annum but OP’s authority did not make any reply of the said
(3)
notice nor they refunded the money with interest till date . Hence, the complainant filed this case.
On perusal of record, we find that case is running ex-parte against OP No.1 & 2 vide order dated 05.04.2023.
Trial
During trial complainant filed affidavit in chief.
Documents
Complainant produced the following documents viz :
- Original copy of provisional allotment of flat..........(Four sheets)
- Original copy of list of charges..........(One sheet)
- Original Receipt of voucher amounting to Rs.11,54,750/-...........(One sheet)
- Original copy of Money Receipt..........(Three sheets)
- Original copy of final settlement letter ............(One sheet)
- Original agreement of sale............(One set)
- Original copy of Postal Receipt...........(One sheet)
- Original copy of Advocate’s letter...........(Two sheets)
- Net copy of Postal Track Report..........(Two sets)
Brief Notes of Argument
Complainant filed BNA.
Decision with Reasons
We have carefully gone through the petition of complaint filed by the complainant, documents filed by the complainant, affidavit in chief filed by the complainant and BNA filed by the complainant. We have carefully considered those documents.
In the present case complainant filed affidavit in chief said affidavit in chief is nothing but unchallenged testimony and we do not find any reason to disbelieve the same.
On careful perusal of contents of the petition of complaint, documents on record, we find that complainant is a consumer and OP No.1 & 2 are the service provider.
(4)
We also find that this Commission has jurisdiction to entertain the dispute and present case has been filed within the period of limitation.
On perusal of original copy of agreement for sale dated 17.02.2017, we find that OP No.1 & 2 are parties of the said agreement. We also find that complainant is also party of the said agreement.
We also find that complainant executed the said agreement by putting his signature. We also find that OP No.1 & 2 also executed the same by putting their signatures over the said agreement. As per the said agreement price of the flat has fixed as Rs.12,94,750/-. We find that complainant has paid Rs.12,94,750/- in favour of OP No.1 & 2. In the said agreement it has mentioned that complainant paid Rs.20,000/- on 01.08.2016 vide cheque no.874043, paid Rs.20,000/- on 01.08.2016 vide cheque no.874042, paid Rs.1,00,000/- on 01.08.2016 vide cheque no.874044 and paid Rs.11,54,750/- on 01.02.2017 vide cheque no.306531. Complainant also produced the individual money receipts , we find that OP NO.1 & 2 issued money receipt in respect of Rs.20,000/- on 01.08.2016, Rs.20,000/- on 01.08.2016, Rs.1,00,000/- on 01.08.2016, Rs.11,54,750/- on 01.02.2017.
On perusal of lawyer’s notice dated 12.11.2020, we find that entire grievance has mentioned in the said notice and said notice has sent to OP NO.2.
On perusal of Postal Track Report, we find that said notice has served upon OP No.2 on 18.11.2020. Complainant stated in his affidavit in chief that in spite of issue of said legal notice OP NO.1 & 2 did not take any steps for handed over the flat in favour of the complainant.
From the aforesaid discussion, it is clear before us that complainant has paid entire amount of the flat in favour of the OP NO.1 & 2 but till date they did not provide the flat in favour of the complainant.
In this context, we have carefully gone through the decision Hon’ble NCDRC in Anil Kumar Jain and another Vs M/S Nexgen infracon Pvt. Dated 23.12.2019, we find that Hon’ble NCDRC held:-
25. At this juncture, I find it a fit case to place reliance on the recent judgment of the Hon’ble Apex Court in Pioneer Urban Land &Infrastructure Ltd. Vs. Govindan Reghavan-II (2009) CPJ 34 (SC), wherein the Apex Court has observed as follows:
“6.7. A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are
(5)
ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the
Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms.”
26. I further place reliance on the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra – II (2019) CPJ 29 SC, in which the Hon’ble Apex Court has observed as hereunder:-
“........It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.”
27. In the instant case also the Complainants cannot be made to wait indefinitely as the possession of the Unit has not been handed over to them so far and the Opposite Party is enjoying the benefits of their hard earning money deposited with it. Therefore, the
(6)
complainants are also entitled for refund of the principal amount with reasonable interest and compensation.
In this context, we have carefully gone through section 62 of Real-estate (Regulation and Development) Act, 2016 which reads as under:-
62. Penalty for non-registration and contravention under sections 9 and 10.- If any real estate agent fails to comply with or contravenes the provisions of section 9 or section 10, he shall be liable to a penalty of ten thousand rupees for every day during which such default continues, which may cumulatively extent upto five per cent of the cost of plot, apartment or building, as the case may be, of the real estate project, for which the sale or purchase has been facilitated as determined by the Authority.
In this context, we have carefully gone through section 18 of the West Bengal Housing Industry Regulation Act, 2017 which reads as under:-
18. Return of amount and compensation.-(1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building,-
(a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or
(b)due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason;
he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act:
Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay till the handing over of the possession, at such rate as may be prescribed.
(7)
(2) the promoter shall compensate the allottees in case of any loss caused to him due to defective title of the land, on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation under this sub-section shall not be barred by limitation provided under any law for the time being in force.
(3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act.
Having regard to the aforesaid discussion, considering the materials on record we are of the firmed view that complainant has established his grievance by sufficient documents against the OP No.1 & 2 which amounts to deficiency in service. Accordingly, complainant is entitled to relief as per his prayer.
In the result ,present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed ex-parte against OP No.1 & 2 with cost of Rs.5,000/- (Rupees five thousand) to be paid by OP NO.1 & 2 in favour of the complainant.
OP No.1 & 2 jointly or severally are directed to refund Rs.1,40,000/-(Rupees One lakh forty thousand) in favour of the complainant along with interest at the rate of 10% per annum from 01.08.2016 to till the date of actual payment preferably within one month from this date.
OP No.1 & 2 are further directed to pay Rs.11,54,750/- (Rupees Eleven lakh fifty four thousand seven hundred fifty) along with interest at the rate of 10% per annum from 01.02.2017 to till the date of actual payment preferably within one month from this date.
OP No.1 & 2 jointly or severally are directed to pay compensation amounting to Rs.2,00,000/- (Rupees Two lakh) in favour of the complainant for his mental pain, agony and harassment within one month from this date.
(8)
OP No.1 & 2 are further directed to comply the aforesaid orders within one month from this day failing which complainant shall have liberty to put this order into execution.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
............................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
........................................ .........................................
MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
