FINAL ORDER/JUDGMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The fact of the case, in brief, are that OP-1 is a company under the Companies Act, 1956 and dealing with the building construction business. OPs 2 and 3 are the Directors of the OP-1 company. Complainant booked a flat measuring about 608.8 sq. ft. on the second floor in Phase 1 along with a car parking space measuring about 12.5 sq. meter on the ground floor of the proposed building against allotment No. UPT 02349 and the total sale price of the subject flat and car parking space is Rs. 15,61,512/-. Complainant has paid Rs. 3,26,356/- to the OPs on different dates against money receipts and an Agreement for Sale dated 22.04.2017 was executed between the parties to the complaint petition. In terms of the agreement for sale, the OPs promised to handover possession of the subject flat and car parking space within 40 months from the date of execution of agreement. The OPs failed to start the construction work of the project named “Usahai Prince Town” for which the complainant stopped making monthly installments to the OP-1. Despite several request, the OPs failed and neglected to handover physical possession of the subject flat and car parking space to the complainant on receiving balance consideration amount. Having no other alternative, the complainant wrote a letter dated 02.05.2019 to the OPs requesting them to refund Rs. 3,26,356/- as part consideration amount. The OPs promised to refund the advanced consideration amount but they failed to keep their promise. Thus, left with no other option, alleging deficiency in service and unfair trade practice, on the part of the OPs, the complainant approached this commission.
Despite service of notices of the complaint, the OPs did not turn up to contest the case by filing WV within the statutory period as provided under the CP Act, 2019. Thus, the case runs ex parte against the OPs.
To substantiate his case complainant has filed E/chief supported by an affidavit. He has also relied the documents annexed with the complaint petition.
We have perused the material available on record and heard the Ld. Counsel for the complainant.
The fact that the complainant booked a flat measuring about 608.8 sq. ft. on the second floor in phase 1 of “Usahai Prince Town” along with a open car parking space measuring about 12.5 sq. meter on the ground floor on the proposed building. It is also true that an agreement for sale dated 22.04.2017 was executed between the complainant in one part and the OPs in other part. It appears from the agreement for sale that the total sale price of the subject flat and open car parking space is Rs. 15,61,512/- and out of such sale price the complainant has already paid Rs. 3,26,356/- as part consideration amount to the OP-1 against money receipts. There is no dispute that in terms of the agreement for sale the OPs are liable to handover physical possession of the subject flat and open car parking space to the complainant within 40 months from the date of agreement. It is also evident from the evidence of the complainant that the OPs have not yet started construction of the subject project and despite several request as well as legal notice the OPs did not refund the consideration amount of Rs. 3,26,356/-.
Complainant stated payment details in para 3 of the petition of the complaint shows that he has paid Rs 3,26,356/- by way of cheques to the OP-1 out of total consideration. In the present case, the OPs did not contest the case by filing WV denying the allegations of the complainant. Complainant entered into an agreement for sale with the OPs for the subject flat and open car parking space for his residential purpose. Thus, the complainant is a consumer under the definition of section 2 (7) of the CP Act.
The last question of consideration before us is whether the OPs are deficient in providing its services to the complainant or not.
The expression Deficiency of Service has been dealt with by the Hon’ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. Reported at 2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
“23. .......The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:
(g) "deficiency" means any fault, imperfection, shortcoming or in adequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
24. 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 a 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. The expression 'service' in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things)housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party interalia to remove the deficiency in the service in question. In trinsicto the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfillment of a contractual obligation.”
18. At this stage, we deem it appropriate to refer application for allotment of flat at “Usashi Prince Town” that the OPs are bound to handover the possession of the flat and open parking space within 40 months from the date of execution of the agreement for sale. However, the OPs failed to handover possession of the subject flat and open car parking space till date.
Relying on the above settled law, we hold the Opposite Parties deficient in providing its services to the complainant as the OPs had given false assurance with respect to the time for completing the construction of the said project and kept the hard earned money of the complainant.
Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Parties 1 to 3 to refund consideration amount of Rs. 3,26,356/- to the complainant along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the OPs . 1 to 3 till 21.09.2022 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A)
is subject to the condition that the OPs pay the aforesaid amount on or before 21.09.2022;
C. Being guided by the principles as discussed above, in case the OPs fail to refund the amount as per the aforesaid clause (A) on or before 21.09.2022 is
deposited amount to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the OPs till the actual realization of the amount. In addition to the aforesaid and taking into consideration the facts of
the present case, the OPs are directed to pay a sum of:-
(a) Rs. 30,000/- as cost for mental agony and harassment to the complainant; and
(b) the litigation cost to the extent of Rs. 5,000/-.
Copy of the judgment be supplied to the parties free of cost as per CP Act. Upload the judgment on the website of this Commission for perusal of the parties.
