SHAYMAL KUMAR GHOSH, MEMBER 

1. The instant consumer case has been filed  by the complainants against the OPs   No. 1 & 2  praying for refund of Rs. 33,87,668/- only alongwith  compensation, cost, etc.
2. The factual matrix of the case is that the complainants have entered into an agreement for sale on  02.05.2014 with the opposite parties  for purchasing an apartment /unit being Unit No.  3 situated on 3^rd floor in Block 1G-11 measuring about 990  sq.ft.  ( super built-up area) together with covered car parking space  of Mouza  Sikharpur, P.S. Rajarhat, Dist. 24 Parganas(North) under the first schedule land written there-under  together with undivided proportionate share in the land and alongwith  common portions of the said unit  at a  total consideration amount of Rs.30,71,500/- including service tax.  In pursuant to the Article 9 Clause 1 of the said agreement the OPs/developers have promised to handover the possession of the said apartment/unit to the complainants within 36 months from the effective date and in case of delay  in delivery of possession ,  the said OPs/developers  would be entitled to get another six months as a grace period.
3. It is the further case of the complainant that  the substantial amount of Rs. 31,87,668/- only has already been paid to the OPs/developers for purchasing the apartment/unit  in terms of the aforesaid agreement  and to that effect OPs/developers have issued the series of money receipts in favour of the complainants which are annexed in the petition of complaint for kind perusal of  the Ld. Commission.  It is fact that the stipulated period of the delivery of possession has already been passed away since long but the OPs/developers did not pay any good gesture and honesty to deliver the said apartment/unit to the complainants till date. No notice has been served from the end of the OPs/developers upon the complainants to take the possession of the said flat /apartment/unit till date. It is further fact that the  OPs/developers have failed to complete the aforesaid project work in pursuant to the agreement for sale dated 02.05.2014  till  date.   The OPs/developers have deliberately failed and neglected to hand over the possession of the said flat  and as such on various occasions the complainants  have requested the OPs/developers to refund the entire consideration amount of Rs. 31,87,688/-   but  they did not pay any heed  regarding this matter causing clear gross negligence and deficiency in service on the part of OPs/developers.  Having no other alternative the complainants  have knocked  at the door of this Commission for getting proper relief/reliefs as prayed for.
4. The OPs No. 1 & 2  both have contested this case by filing written version stating inter alia that  the petition of complaint is hopelessly barred by limitation. The complainant is not consumer within the purview of the Consumer Protection Act, 1986.  The OPs , by filing written version have  also submitted that  the petition of complaint filed by the complainants is frivolous, manufactured and concocted u/s 26 of the C.P. Act, 1986 and as such  the petition of complaint should be dismissed against the OPs  with exemplary cost.
5. By filing written version  the OPs  have further stated that  the petition of complaint is not maintainable  as the matter in dispute is purely related to civil in nature  and as such the instant case lies before the competent civil court.  The OPs have also mentioned that  the Arbitration Clause  is involved in  the agreement for sale and it  clearly bars the jurisdiction of this Commission to trial the matter.  The OPs have further stated that  due to economic slowdown  they are  not in a position to complete the project and to that effect they have failed to deliver the apartment /unit  to the complainants within the stipulated period of time.  The force majeure events  are also involved in the said project which is beyond the control of the opposite parties. Actually,  there is no fault or gross negligence on the part of OPs/developers regarding delivery of the possession of the flat to the complainants.  It is clearly mentioned in the agreement for sale that the purchaser shall not be entitled to get the possession of the scheduled property until  full payment of consideration amount made by the complainants/purchasers. It is not correct that the opposite  parties/developers did not complete the project work  within the stipulated period of time.  The OPs have also alleged that  the complainants have no right and authority to claim huge compensation amount of Rs. 21,00,000/- alongwith  Rs. 20,000,00/- towards harassment and mental agony and Rs. 40,000/- for legal expenses.  This petition of complaint has no basis at all.  The instant petition of complaint has been filed against the opposite parties only for causing harassment to the opposite parties and accordingly the OPs/developers have prayed for dismissal  of the petition of complaint with exemplary cost.
6. The Ld. Counsel appearing for the complainants have strongly argued that  the agreement for sale has been executed  by and between the parties on 02.05.2014. The complainants have paid Rs. 31,87,668/- to the OPs/developers and to that effect the OPs/developers have issued the series of money receipts in favour of the complainants which are kept with the record .  So, the complainants come well within the purview of the definition of the ‘Consumer’ as per Consumer Protection Act, 1986. Ld. Counsel has further argued that  it is a fit case for filing the instant petition of complaint before this Commission  as the OPs/developers  have committed civil wrong and unfair trade practice due to non-delivery of flat in question within the stipulated period of time.  In pursuant to the agreement for sale dated 02.05.2014, the agreed consideration amount of  Rs. 30,71,500/- has been  settled and fixed  and out of total consideration amount, the complainants have already paid Rs. 31,87,668/- to the OPs/developers.  Instead of receiving the full consideration from the end of complainants, the OPs /developers have failed to provide the apartment/unit to the complainants  within the stipulated period of time causing clear gross negligence and deficiency in service on the part of opposite parties. So,  the complainants have filed the  instant petition of complaint before this Commission correctly and properly as this Commission has an ample authority  and jurisdiction to entertain this matter.
7. Regarding Arbitration Clause , the Ld. Counsel  has argued that  three judges bench of the Hon’ble Supreme Court of India,  in case of  Experion Developers Pvt. Limited Vs. Sushama Ashok Shiroor, reported in 2022(3) ICC(SC)763 at paragraph  no.15  wherein the Honble Apex Court held that “We may hasten to clarify that the power to direct refund of the amount and to compensate  consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts............  and that the Commission is empowered to direct refund of the charges paid by the consumer”.  So,  it is the option  of the complainants to approach  either before the Arbitrator or  before the Commission for getting their proper reliefs as prayed for  against the opposite parties.  Since,  the complainants have already approached  before this Commission, there is no such bar for this Commission to entertain the aforementioned matter.  The statements  or objections  which have been raised in the written version, in this regard,  has no basis at all and accordingly the Ld. Counsel appearing for the complainants have prayed for necessary order/orders so that  the complainants are entitled to get proper reliefs against the opposite parties.
8. At the time of final hearing  the OPs are absent.
9. We have heard the Ld. Counsel appearing for the complainants at length and in full.
10. We have considered the submission of the Ld. Counsel.
11. The hearing has been concluded.
12. We have meticulously perused the materials available on records.
13. Now we are trying to frame the following issues in order to adjudicate the disputes between the parties :

1. Whether  the complainants come well within the purview of the definition of  the consumers or not as per  C.P.Act, 1986.
2. Whether  the Arbitration Clause is applicable or not in order to meet the proper justice to the parties.
3. Whether the aforesaid disputes  are related to the civil disputes in nature or  not.
4. Whether there is any gross negligence or deficiencies in service on the part of OPs/developers or not.
5. Whether  the complainants are entitled to get any relief/reliefs as prayed for against the opposite parties or not as per C.P. Act, 1986.

Point no. (a) : We have carefully perused the series of money receipts issued by the OPs /Vedic Realty Pvt. Ltd. wherefrom  it appears to us that the complainants  have already paid  Rs. 31,87,668/- only to the OPs/developers for purchase of schedule flat in question for their residential purpose.  The details of payment receipts are as follows.

In pursuant to the aforementioned  payment details clearly enumerated  in the  table , it appears  to us that the complainants have already  paid Rs.31,97,668/- for purchasing  the flat as mentioned in the agreement for sale dated 02.05.2014. Thus being the situation, there is no hesitation to hold that the complainants come well within the purview  of  the definition  of the ‘Consumer’  under the Consumer Protection  Act, 1986. The point no. (a) is, thus, decided as per above observation.

Point no. (b) : We  have carefully perused Article 16 (Dispute resolution) of the agreement for sale dated  02.05.2014 wherefrom it appears to us that in the event of a dispute arising out of or in connection with  the agreement, such dispute shall be referred to arbitration in  accordance with the provision of the Arbitration and Conciliation Act, 1996. Though the arbitration clause is involved yet  there is no bar at the behest  of the complainants to approach before this Commission for getting their proper reliefs against the opposite parties. In this respect, we can safely rely upon a remarkable citation  M/s, National Seeds Corporation Ltd. -vs-  M. Madhusadan Reddy  & another  (ILC-2012-SC-Civil-January, 6) also reported in 1 (2012) CPJ  1(SC) wherein  the Hon’ble Apex Court  held that though the Seeds Act  is a special legislation yet  the farmers may approach before the Consumer Forum for getting their  relief. As per  Seeds Act ,  the farmer may approach to the arbitration . But this Act  is totally silent for payment  of compensation.  The remedy of arbitration is not only remedy. It is an optional remedy. The Hon’ble Apex Court also held that when the farmers pay their consideration money for purchase of seeds and if the said seeds are defective one, the farmers can easily approach before the Consumer Forum and the farmers are to be treated as consumers within the ambit of section 2(d)(1) of Consumer Protection Act, 1986. So,  the remedy of arbitration available to the complainant does not bar  the jurisdiction of the Consumer Forum and the Consumer Forum is not under an obligation to refer the matter to the Arbitral Tribunal. So, from the above discussion, it is clear to us that when the complainants choose   the option to approach before the Commission  praying for certain reliefs against the opposite party ,  the Commission has no bar to entertain the said matter.  It is further noted that  the Arbitration Clause in the agreement does not debar any consumer to approach before the Consumer Forum  in pursuant  to the provision u/s 3 of the C.P. Act,  1986. Actually, section 3 of the said Act, 1986 clearly provides that  the provision of this Act is  an addition to  and not a derogation of the provisions of any other law for time being in force. Accordingly, we get a positive answer against the aforesaid issue framed by this Commission. Point no. (b) is, thus,  decided of as per above  observation.

Point no. (c)  : The main theme  and feature of the  Consumer Protection Act, 1986 comes from  Law of Torts. The Law of Torts clearly indicates that   if there is any civil wrong  committed by the opposite party or wrong-doer,  the complainant is entitled to file a suit/ case against the OP  before competent Court of Law alongwith Consumer Fora.  It is the settled principles of law  that when the OP commits any civil wrong or unfair trade practice  or  when the OP/wrong-doer  is negligent  to perform  his duties towards the complainant or  when there is any deficiency in service on the part of the OP,  the complainant is at liberty to institute the consumer case  against the  wrong doer i.e. the opposite party.  So,  in pursuant to the above observation, we are of the view that   the complainant already approached  before the  this Commission  for getting their relief/reliefs as prayed for  against the opposite parties is very correct, just and proper and accordingly there is no need to approach before the Civil Court.  Point no. (c) is, thus,  decided as per above  observation.

Point nos. (d) & (e) : In pursuant to the agreement for sale dated 02.05.2014 , the complainants  have intended to purchase  an apartment/unit  being no. 3 situated on 3^rd floor measuring area about 990 sq.ft. (super built up area)  together  with covered car parking space  at a total consideration amount of Rs. 30,71,500/-  plus service tax.   It is also noted that as per Article 9 Clause (i) of the aforesaid agreement, the OPs/developers have promised to handover the possession of the said apartment/unit to the complainants within  36 months from the effective date  subject to further grace period of 6 months.

It is fact that the aforesaid stipulated period has already been elapsed and OPs/developers  have failed to hand over the possession of the said flat to the complainants till date. On earlier occasion it has already been decided that the complainants have paid total consideration amount of Rs. 31,87,668/- to the OPs /developers. So, it is crystal clear, that after  receiving  the full consideration  from the end of the complainants , the OPs/developers  have deliberately failed and neglected to handover the possession of the flat  in question to the complainants. At this juncture , it is our observation  that it should not be justified and proper at the behest of the complainants    to wait for prolonged period of time   for getting their flat in question, and in this respect we can safely rely upon the decision  Suniti Kumar Bhat and others Vs Unitech  Acacia Projects Pvt. Ltd and other  reported in 2018(3)CPR 795 (NC) wherein the Hon’ble National Commission held that when the  builder fails to construct the flat in time, he is entitled to pay  compensation  in the form of interest and cost of litigation. In this respect, we can depend upon another  remarkable  decision FORTUNE  INFRASTRUCTURE AND ANOTHER vs TREVOR D’LIMA AND OTHERS REPORTED IN (2018) 5 SCC 442  wherein  Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the   flat  allotted to him and is  entitled  to seek refund of amount  paid by him alongwith compensations.  We further rely upon recent and updated citation  i.e. Experian  Developers Pvt. Ltd. –vs-  Sushma Ashok  Shiroor ,  in Civil  Appeal no. 6044/2019 with Civil Appeal no. 7149 of  2019  wherein the Hon’ble  Apex Court has been pleased to hold that the power to direct refund of the amount and to compensate a consumer  for the deficiency in   not delivering  the apartment  as terms  of agreement is within the jurisdiction of the Consumer Courts.  A consumer can pray for refund of money with interest and compensation.  The Hon’ble Apex Court has been further pleased to hold  that the Consumer can also make a prayer  for both  in the alternative.  If a consumer  prays for refund  of the amount  without  an alternative prayer, the Commission will recognize such a right and grant it , of course, subject to the merit of the case.  If   a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands.

Keeping in view of the above observations and finality  of the litigation as well as  regard being had to the observations of the Hon’ble Supreme Court and Hon’ble NCDRC,  we can safely    hold that  there is clear gross negligence and deficiency in service on the part of the opposite parties  No. 1 & 2 and order of refund  should be passed  in favour  of the  complainants in order to meet the proper justice to them.  Point Nos. (d) and (e)  are, thus, decided as per above observation.

Accordingly,  we allow the instant CC case  being No. 259/2018 on contest against the OPs No. 1 & 2 with cost.

Hence,

It is,

                                                            ORDERED

That the OPs No. 1 & 2/ developers  are directed to refund of Rs. 31,87,668/- (Rupees thirty-one lakh  eighty-seven thousand six hundred   & sixty-eight) only to the complainants  within 60 days from the date of this order alongwith interest @ 8% p.a.  (in the form of compensation) from the date of each payment till full realization.

That the  OPs No. 1 & 2 / developers   are further directed to pay litigation cost of Rs. 20,000/- (Rupees twenty thousand) only to the complainants,  within  the aforesaid stipulated period of time, in default , the said amount shall carry interest @ 8% p.a.  till full realization.

In case of non compliance of the order from the end of the OPs No. 1 & 2, the complainants are at liberty to put the final order in execution.

The instant CC case is, thus, disposed of.

Note accordingly.

Let a copy of this order  be supplied to the parties  free of cost.