SHRI  REYAZUDDIN KHAN,MEMBER

 This is an application U/s.35 of the Consumer Protection Act, 2019 is at the instance of an intending purchaser against GreenTech IT City Pvt.Ltd on the allegation of deficiency of service in a dispute of flat construction.

The complainant  had booked a flat unit No.A2 in Block 08 in an apartment named “Terrace Heights” in Vedic Village situated at PS-Rajarhat,under Chadpur Panchayat District Sub-Registry office Bidhannagar (Salt Lake),24 Parganas,West Bengal measuring 1835 sq.ft super builtup area.The complainant had executed an agreement for sale with his wife as co-applicant on 21.11.2016 with the OP1.The total consideration amount of the flat was fixed Rs,65,14,250/ (Rupees Sixty Five Lacs Fourteen Thousand

Two hundred Fifty)only along with the covered car parking space of Rs,2,50,000/(Rupees Two Lakhs Fifty Thousand)only.

The detailed consideration amount.

Sale Price of the unit                                65,14,250.00

Sale price of the car parking                    2,50,000.00

Interest free deposit @Rs,30/

Per sq.ft                                              55,050.00

IDC@ Rs,150/Sq.ft                            2,75,250.00

Total                                                     72,44,550.00.

The complainant was supposed to pay the total amount of Rs,72,44,550/ (Rupees Seventy Two Lakhs Forty four Thousand Five Hundred Fifty)only plus Taxes as applicable. The complainant had paid advance amount of Rs,14,65,978/ on different dates and via cheques.The complainant further stated that he had applied for the Home loan from OP2 Central Bank of India as suggested by OP1 for their corporate tie up.The OP2 Bank sanctioned the loan of Rs,56,31,000/(Rupees Fifty Six Lakhs Thirty One Thousand) only vide sanctioned letter No.BR.CR.2016-17/389 dated 02.02.2017.

The complainant stated that after booking of the subject flat  OP1 raised a demand of Rs,8,59,604(7,32,989 for unit price and Rs,1,26,615 towards IDC) on 18.01.2017.The said amount was directly transferred to the account of the OP1 by the OP2 Bank to the as a part of Home loan.OP2 Bank violated the provisions of the Agreement for sale without inspecting the development of construction before disbursing any loan amount  directly to OP1’s account.This attitude of OP2 was nothing but deficiency of service and unfair trade practice. After payment of such a huge amount to OP1 the complainant visited the site in June 2018 and again in November 2019 to inspect the development of work and erection of the building but the construction of work was not started and not even the foundation has been dug out.OP1 miserably failed to handover the possession of the subject flat as per agreed timeline and on the other hand OP2 bank started seeking EMI of Rs,44,396/per month.The complainants’s wife requested the OP2 through letter on 20.03.2020 to revise the EMI from Rs,44,396/ per month as only Rs,10,52,094 was disbursed from the sanctioned loan but OP2 declined to their request through an emails dated 24.07.2020 to make any changes to the EMI amount and suggested to book any other flat constructed apartment from the same builder.The complainant sent legal notice to OP1 on 04.07.2020 but OP1 did not bother to take any step.The cause of action arose from the inception and Agreement for sale was executed on 21.11.2016 and further arose when OP2 started seeking EMI in February 2020 and the same has been continuing. Finding no other way the complainant has approached the Commission for justice with relief as detailed in the complaint petition.

The OP1 has contested the case by filing their Written Version. OP1 stated that the consumer case is bad in law  also barred by limitation. The complainant is not a consumer within the meaning of Consumer Protection Act,1986. The OP1 stated that there has been economic slowdown in overall development in the infrastructure sector which adversely affected the progress of the project.The demonetization, the change in real estate law,and further the Covid-19 Pandemic delayed the project.The change in construction and handing over of the concerned unit has been owing to intervening “Force Majeure” events which was beyond the control of the Opposite parties.There is no deficiency in service and or unfair trade practice on the part of the answering OP1.Therefore,the complaint should be dismissed with cost.

OP2 also contested the case by filling the WV.OP2 stated that the allegation made in the complaint petition is false, concocted fabricated facts, misconceived and the complaint is not maintainable in law and liable to be dismissed in limini.OP2 stated that

at the time of execution of sale agreement there was a tripartite agreement amongst the complainant,the Bank and the developer,whereby the Bank was obliged to disburse loan amount directly to the developer as per schedule of payment mentioned in the said agreement for sale dated 08.02.2017.There was no question of lack of due diligence. The Bank asked of payment of EMI after expiry of moratorium period,the stage or progress of construction has no role to play.OP2 further stated that OP2 has been dragged into the litigation even though no cause of action lies against it whatever dispute or deficiency of service lies if any against the developer the OP1,the OP2 has no nexus and hence has nothing to do with these issues.   

   Points for Determination

In the light of the above pleadings, the following points necessarily have come up for determination.

1)  Whether the OPs is deficient in rendering proper service to the Complainant?
            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.

            Complainant Col.Subhasis Ghosh ,has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by the OPs.Both the parties filed their BNAs.We have travelled over the documents placed on record we find that the complainant booked a flat and made a sale agreement on dated 21.11.2016 with OP1 and paid Rs 14,65,978/ out of total consideration amount of Rs,72,44,550/ (Rupees Seventy Two Lakhs Forty four Thousand Five Hundred Fifty)only plus Taxes as

applicable to the OP1and rest of the amount was to be paid through housing loan  sanctioned by OP2 of Rs,56,31,000/ on 02.02.2017 with a monthly EMI of Rs,44,396/.OP1 was supposed to handover the flat within 24 months with 6 months of grace period or latest by May 2019. That on November 2019 when the complainant came to know that no development works took place on the subject flat site,the complainant emailed the OP1 on 27.02.2020 and asked to cancel the booking of the subject flat and return the paid amount but OP1 did not respond to the request. On the other hand OP1 in his WV failed to provide any substantial evidence which establishes the case in his favour.

Now,if we go through the issue of OP2 (Bank),we observed that OP2 sanctioned the housing loan amount of Rs,56,31,000/ on 02.02.2017 to the complainant and at the same time OP2 transferred Rs,8,52,274/directly to OP1’s account without due information to the complainant which was the clear violation of the letter BR:CR:2016-17/389 dated 02.02.2017 issued by OP2 Bank mentioned in the column “Disbursement:The loan amount will be disbursed by credit in to CD account of the builder with our branch directly to the seller/Builder as per provisions in the sale Agreement after getting suitable instruction from you”.

In the Tripartite Agreement also dated 08.02.2017 mentioned that ‘Any disbursement/s and / or interim disbursement(s) to be made directly to the builder shall be with the express written consent of the Borrower/s”. But OP2 Bank violated the self issued commitment .In such circumstances unfair trade practice and the gross negligence and deficiency in service on the part of the OP2 is observed.

In the second instance it is admitted fact that OP2 Bank sanctioned Rs,56,31,000/ in favour of the complainant and accordingly monthly EMI was fixed Rs,44,396/ but out of which only 10,52,094/ was disbursed. So fixing the same EMI to the amount which the complainant had not enjoyed is not justified. It reflects the pain of the consumer for the property that neither exists nor appears to exist in future and he is compelled  to pay the loan amount at any cost.      

In view of the above facts it is observed by us that,it is unfortunate that OP1 has miserably failed to perform his responsibilities. It is not our expectation that the complainant by any means suffer from loss of money and time for the negligence on the part of the OP1. Under the above circumstances, unfair trade practice and the gross negligence and deficiency in service on the part of the OP1 and OP2 is proved and the complainant is entitled to get relief/reliefs.

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.”

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 Complainant has established the case against the OP1and OP2.

In view of above,the complaint is disposed of on contest against the OP1 and OP2 with the following directions:-

Hence,

Ordered

i) OP1 is directed to refund the advance paid amount of Rs, 22,62,454/( Rupees Twenty Two Lakh Sixty two thousand four hundred fifty four) only  @9% P.A in favour of the complainant from the date of conciliation of booking( i.e,20.09.2016) till its realization.

ii) The OP1 and OP2 jointly or severally  directed pay the compensation of Rs 1lakh( 70% paid by OP1 and 30% paid by OP2)  in favour of the complainant for harassment and mental agony.

iii) OP2 Bank is directed to revise the EMI as per the total loan amount disbursed/paid to the complainant/Developer.

iv) OP1 is directed to pay RS,10,000 as litigation cost in favour of the  complainant.

  Complainant 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.