FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the complainants, in brief, is that complainants booked a residential unit at “Eco Homes” at Mouza – Uttar Gazipur, P.S. – Kashipur, Dist – South 24 Parganas , West Bengal, comprised in Block No. A being unit No. A-2-F-6 on the 1stfloor of Tower 2 by paying Rs.1,00,000/- vide cheque No. 857749dated 03/11/2015drawn on Punjab National bank, Liluah Branch, and in cash Rs.3,500/and OP issued money receipt bearing No. MR = GCEH/00530/ 15-16 against such payments along with booking confirmation vide reference No. GTC / 2015 / 7896 dated 21/11/2015 which is to be treated as Agreement for Sale. Thereafter as per terms and conditions the complainant paid an amount of Rs. 2,13,342/- vide cheque No.857754 dated 24/11/2015 drawn on Panjab National Bank, Liluah Branch, and in cash Rs,7,734/- to the OP. Thus the complainants paid Rs.3,24,576/- to the OP. After completion of allotment procedure the complainants made several requests to the OP to execute an Agreement for Sale. But the OP did not pay any heed about the same. Therefore the complainants sent a legal notice dated10/04/2018 to the OP requesting them to refund deposited amount. But the OP remain unturned. Thereafter the complainants sent another legal notice dated 08/02/2019 to the OP. In spite of receiving the same the OP did not move. Till date the complainant neither got theflat 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 WV contending inter alia that the instant complaint is baseless, suppression of facts, false, barred by limitation and this Forum has no jurisdiction to hear the case. The case of the OP is that complainant has booked the said flat for resale purpose hence not consumer within the meaning of Consumer Protection Act. Further OP submitted that 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. Moreover, 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.
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 complainants booked a residential flat being Unit No. A-2-F-6 on the 1st floor in Block- A of Tower 2situated in the ECO Homesby paying Rs.3,24,576/-out of total consideration amount of Rs.15,38,000/-vide chequeNo.857749dated 03/11/2016 of Rs.1,03,500/- and vide chequeNo.857754dated 24/11/2015 for Rs.2,21,734/-drawn on Punjab National Bank , Liluah Branch to the OP. Documents furnished by the complainants supported the averments made out in the complaint petition.
It has been argued by the Ld. Advocate for the complainants that aftercompletion of allotment procedure and payments the complainantsmadeseveral requeststo theOP for executing the Agreement for Sale.But the OPs did not turn up. Photocopies of the Mails showing that the complainant requested the OP through Legal Notices dated 10/04/2018 and 08/02/2019 to refund the deposited amount along with interest as early as possible. It is noted that after receiving the said legal notices OP did not bother to reply the same by revealing any clear and transparent information about the booked flat. We think it is deficiency in service on the part of the OP. The primary responsibility of a builder is to execute an Agreement for Sale,construct the flat and deliver the possession of the said flat to the purchaser within stipulated period as per Agreementfor 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.
Moreover, photocopy of legal notices sent by the complainant to the OP show that complainant requested the OP to refund the booking money i.e. Rs.3,24,576/- stating 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 complainants, 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 complainants booked the said flat for the purpose of resale. 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.3,24,576/-. We do not find any piece of document where from it would prove that complainants are 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 OP 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 and for such reason there has been a slowdown in overall development, which has adversely affected the progress of the 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 execute an Agreement for Sale and handover the subject the subject flat in favour of the complainant within the stipulated period and failure on the part of OP to execute an Agreement for Sale and 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 complainants neglect to make timely payments for which the progress of the said project delayed. Photocopy of theAllotment Letter dated 21/11/2015 reveals thatRs.1,56,800/- is payable on Agreement. In this regard the OP failed to annex any single document showing that the complainants expressed their unwillingness to make such payment. Therefore the submission of the Ld. Advocate for the OP has no leg to stand. In view of the abovementioned facts we are opined that, the complainant cannot made to wait indefinitely for possession of the flat, when there is absolutely no response from the OP.
In the result, the consumer complaint is allowed on contest against the OP with a direction to them to refund the principal amount i.e. Rs.3,24,576/- with simple interest@ 8%p.a. from the respective dates of payment is made, together with litigation cost of Rs.10,000/-. This amount to be paid by the OP to the Complainant within 45 days from the date of this order, failing which, the 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.
