FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The case of the Complainants, in brief, is that on 01/07/2014, Complainants executed an Agreement for Sale with the OP for a residential unit at “IVY GREENS” lying and situated at Rajarhat, measuring more or less 1040 sq.ft super built up area on 2^nd  Floor being Unit No. B2, Block No. IG-03 together with an one covered car parking area for a total consideration of Rs.32,16,850/-including Rs.2,50,000/- for covered car parking space ((Rs.29,66,850/- for the Apartment & Rs.2,50,000/- for Parking Space), and the Complainants have already paid a sum of Rs.14,39,576/- towards the part consideration of the said flat including the Service Tax. As per the Agreement for Sale the OP endeavors to complete the construction of the aforesaid building within 36 months from the date of agreement i.e, within June 2017 and/or the period may be extended for further 6 months as per the Agreement for Sale i.e. by 01/07/2017. Thereafter the Complainants several times verbally and through Emails and letters contacted the Officials of the  OPin respect of the said flat together with one covered car parking space.Thereafter on 21/05/2018 one Official of the OP, namely Mr. Arvind Ojha intimated the Complainants vide Email that the completion of the said building project and delivery of the possession will take another 11 months. Being annoyed the Complainants demanded to know he status of the said apartment vide E-mail dated 06/04/2019, 29/04/2019 & 09/05/2019 and got similar replies. On 15/05/2019 another Official of the Op, namely Mr. Anshu Prakash Pathak informed the Complainants vide E-mail that they have tried to reach the Complainants but the mobile was found switched off.Feeling cheated by the OP the Complainant cancelled the allotment of the said flat and sought for refund of the invested amount vide E-mail dated 29.05.2019 to the said Mr. Anshu Prakash Pathak. But the same is not replied by the OP till date. The Complainants sent several E-mails to the abovementioned person on 30/05/2019, 21/07/2019, 12/08/2019, 19/08/2019 & 16/09/2019 in this regard. Till date the Complainants neither got the flat nor got the refund of deposited money. Having no other alternative Complainants have 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, 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 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. As such OPs prayed for dismissing the case.

Both parties have tendered evidence supported by affidavit. 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 executed an Agreement for Sale on 01/07/2014 for hiring Housing Construction service from the OP for one residential apartment being Flat No.B2 on the 2^ndFloor in Block-IG-03 situated in the IVY GREENS. On perusal of the material documents furnished by the Complainants it is found that the Complainants have paid an amount of Rs.14,39,576/-out  of total consideration amount of Rs.32,16,850/- to the OP. Money Receipts issued by the OPs also supported the averments made out in the complaint petition.

It has been argued by the Ld. Advocate for the Complainants that after execution of Agreement for Sale and scheduled payments OP failed to deliver the possession of the said flat within stipulated period and to execute the Deed of Conveyance as per Agreement for Sale. Photocopies of the E-Mails showing that the Complainant contacted the Officials of the OP through E-mails dated 09/05/2018, 10/05/2018, 21/05/2018, 06/04/2019, 24/04/2019, 29/04/2019, 11/05/2019, 13/05/2019, 15/05/2019, 29/05/2019, 30/06/2019, 21/07/2019, 08/08/2019,09/08/201912/08/2019, 19/08/2019, 10/09/2019  and 16/09/2019 regarding the delivery of possession of the said flat which replied by the Arvind Ojha, one of the Officials of the OP on 21/05/2019 that completion of   the said apartment will take 10-11 months more . E-mail dated 09/08/2019sent by the Complainant reveals that the Complainants made demand to the OP through their Offcials Mr. Anshu Pathak and Mr. Arvind Ojha to cancel the allotment of the said apartment and to refund the deposited amount if possession is not possible. It is noted that after receiving the said E-mailOP 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.

To prove their case Ld. Advocates for the Complainant referred the matter of :

1. Adivekka & Ors Vs. HanamavvaKomVenkatesh ‘D’ LRs before Hon’ble Supreme Court of India,

2. Sk. Rejabul HaqueVs. Sk. Serajuddin & Ors before Hon’ble Calcutta High Court,

3. Delhi Development Authority Vs. Praveen Kumar &Orsefore Hon’ble NCDRC,

4. M. M. Goyal & Anr Vs. Omaxe Forest Spa And Hills Developers Limited before Hon’ble NCDRC,

5. Kavit Ahuja Vs. Shipra Estate Ltd. and Jai Kishan Estate Developers Pvt. Ltd. before NCDRC,

6. Revision Petition No. 615 of 2016 (Against the Order dated 22/12/2015 in Appeal No. 90 of 2015 of the State Commission Chhattisgarh) D/d 1.4.2016,

7. Unitech Limited Real Estate Division Vs. Vivek Prakash before Hon’ble NCDRC,

8. Om Enterprise Vs. Kalpan Sen before Hon’ble NCDRC,

9. Navneet Chabra    Vs. United Limited Before Hon’ble NCDRC,

10. CC/157 /2015 before Hon’ble NCDRC,

11. CC/398/2015 With IA/4365/2016, IA/6523/2015. D/d 19.5.2016 before Hon’ble NCDRC,

12. Poonam Rani Vs. Unitech Limited before Hon’ble NCDRC.

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 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 by paying Rs.14,39,576/- out of total consideration amount of  Rs.32,16,850/-. We do not find any piece of document where from it would prove that Complainants are not consumer under the OP. 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 , for such reason  and due to sudden demonetization and non – availability of paper money 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 handover the subject 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. 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. Complainants cannot make to wait indefinitely for possession of the flat, when there is absolutely no response from the OPs.

In the result, the consumer complaint is allowed on contest with the following directions:

1. OP is directed too refund the deposited amount of Rs.14,39,576/- with simple interest @ 8% p.a. from the respective dates of payment is made within 45 days from the date of passing of the order.

2.  OP is also directed to pay litigation cost of Rs.10,000/- to the Complainant within stipulated period.

3. In case of failing the refund amount to be paid by the OP to the Complainant within specified period 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.