FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
Brief facts of the case are that OP-1 is a Company incorporated under the Companies Act, 1956 being represented by its Directors namely Mr. Raj Kishore Modi and Mr. Uday Modi (OPs 2 & 3). Complainant vide application dated 17.06.2016 had applied for booking of a flat in the project “IVY GREENS II, at Mouza-Shikharpur, PS-Rajarhat, Kolkata-700135 of the OP-1. Allotment letter dated 19.07.2016 was issued in respect of Unit No. “B5”, on 05th floor, in Block No. “IG-07”, in IVY GREENS II, at Mouza-Shikharpur, Kolkata-700135. An Agreement for Sale dated 07.09.2016 was executed. Total sale price of the apartment and parking space is Rs. 36,82,000/-. Subsequently, another supplementary agreement dated 27.09.2016 was executed. OP-4 Central Bank of India, Ultadanga Branch sanctioned House Building Loan to the complainant. A Tripartite Agreement dated 07.10.2016 has been executed between the complainant, OPs 1 and 4. Complainant has paid Rs. 4,55,078/- and OP-4 Bank also paid Rs.8,49,364/- to the OP-1 for the booked apartment and parking space. As per Article 9 (1) of the Agreement for Sale dated 07.09.2016, OP-1 is liable to be handover physicall possession of the booked apartment and parking space to the complainant within 36 months which ends on 06.09.2019. Clause 1 & 10 of the Tripartite Agreement dated 07.10.2016, the OPs 1 to 3 shall refund the amount disbursed by OP-4/Bank in case of cancelling the allotment of booked apartment and parking space. Complainant had been to the project site and found that there is no development work. OP-4 issued notices dated 03.12.2020 and 04.01.2021 to the complainant for repayment of loan amount. As per Tripartite Agreement, the OP-1 is liable to refund the disbursed loan amount to the OP-4. Legal notice dated 21.12.2020 sent to the OP-1 but such notices was unattended. Alleging unfair trade practice and deficiency in service on the part of the OPs, the complainant has filed the present complaint.
OPs 1 to 3 have filed their WV beyond the period of 45 days. No delay condonation petition is filed for acceptance of WV. Thus, the WV of the OPs 1 to 3 is not accepted and the case runs ex parte against the OPs 1 to 3.
Notice of the complaint served to the OP-4/Bank. Despite service of notice, OP-4 did not file WV. Thus, the right of OP-4 to file WV is closed and the case also runs ex parte against the OP-4 also.
In support of his claim, complainant Mr. Ashish Kumar Ekka has tendered evidence supported by an affidavit and also relied documents annexed with the complaint petition. We have heard argument on merit and have also perused the record.
The Ld. Advocate for the complainant argued that there is clear gross negligence and deficiency in service on the part of the OPs in spite of payment of Rs. 13,04,442/- to the developer out of total consideration amount of Rs. 36,82,000/-. No construction work has been done by developer within the stipulated period of time. Complainant on several occasions, requested the OPs 1 to 3 to hand over possession of the flat in question but in vain. Ld. Advocate for the complainant further submitted that at present there is no existence of the project work IVY GREENS II as at the proposed site, not construction work has been found. There is no possibility to handover the said flat in habitable condition including parking space to the complainant in near future and as such, the Ld. Advocate for the complainant has prayed for refund of Rs. 13,04,442/- with interest at the rate of 18 percentp.a., compensation of Rs., 15,00,000/- and litigation cost of Rs. 50,000/-
Heard the Ld. Advocate for the complainant. Considered his submissions. Perused the complaint petition coupled all relevant documents annexed thereto.
Before explaining the other issues involved in the complaint case, we try to decide whether complaint case is false well within the purview of CP Act or not and whether there is any gross negligence of deficiency in service on the part of the OPs in the instant case or not.
It is admitted fact that the complainant has already paid Rs. 4,55,078/- to the OP-1/Developer and the OP-4/Central Bank of India disbursed house building loan of Rs. 8,49,364/- to the OP-1 in respect of booked apartment and parking space which is clearly revealed from the Agreement for Sale dated 07.09.2016, money receipts and statement of accounts of Central Bank of India, Ultadanga Branch, Kolkata.
From the above documents, we are also satisfied that out of total consideration of Rs. 36,82,000/-, the complainant has already paid Rs. 13,04,442/- as part consideration amount to the OP-1/Developer. Thus, the complainant comes well within the purview of definition of Consumer according to CP Act, 2019.
It is pertinent to mention here that the OPs 1 to 3 have filed their WV on 17.02.2022 beyond the period of 45 days and no delay condonation petition was filed for acceptance of WV. Thus, the WV of the OPs 1 to 3 is not accepted and the case runs ex parte against the OPs 1 to 3. Despite service of the notice, the OP-4 did not file WV which tantamount to admission of the allegations stating in the complaint petition. Legal notice dated 21.12.2020 clearly revealed that there is continues negligence and deficiency in service on the part of the OPs 1 to 3. Article 9 (I) clearly shows that the OP-1/Developer will hand over possession of the apartment and parking space to the complainant within 36 months from the effect of the date but the OP-1 did not offer possession of the apartment and parking space despite several requests. Despite legal notice dated 21.12.2020 no fruitful result is coming.
We find that force majeure clause mentioned in the Agreement for Sale dated 07.09.2016 is totally untenable. The OP-1 has failed to place any evidence on record to provide that the reasons of delay were beyond their control. Complainant cannot be made to wait indefinitely for delivery of possession of the booked apartment and parking space. Complainant has not committed any default or delay in making payment. Ultimately, the complainant opted for cancellation of booking and asked for refund of booking money including refund the house building loan of Rs. 8,49,364/- along with interest to the OP-4. The OP-4 disbursed Rs. 8,49,364/- to the OP-1 as part of the house building loan. Clause 10 of the Tripartite Agreement dated 07.10.2016 clearly shows that “ in the event of the bank recalling the loan and the amounts disbursed therein or the builder cancelling the allotment of the flat made in favour of the borrower for any reason whatsoever, the builder shall refund to the bank all amounts disbursed by the bank till date of such recalling of the loan/cancellation of allotment as the case may be along with interest as applicable, and only thereafter builders shall have liberty to allot the said flat to any person ”.
It is very unfortunate that as per Agreement for Sale the OPs 1 to 3 failed to complete the construction work within stipulated period of 36 months. The construction work is still pending. So, the worst situation mentioned above clearly connotes that there is no chance for complainant to get apartment in habitable condition including parking space. It is not our expectation that the complainant by any means suffers from loss of money and time for the breach of agreement on the part of the OPs 1 to 3. Under the above facts and circumstances, the gross negligence, deficiency in service on the part of the OP-1/Developer and the OPs 2 and 3 being the Directors of OP-1 is proved and the complainant is entitled to get relief as prayed for only against the OPs 1 to 3.
In this respect, we can reliance upon some case lodged which is as follows:-
1. In Suniti Kumar Bhat and Ors. Vs. Unitech Acacia Projects Pvt. Ltd and Ors. reported in 2018 (3) CPR 795 (NC), where the Hon’ble National Commission held that when the builder fails to construct the flat on time, he is entitled to pay compensation in the form of interest and cost of litigation.
2. In Rear Admiral (Retd. ) Kirpal Singh vs. M/s Unitech Ltd. reported in 2018 (3) CPR 767 (NC) where the Hon’ble National Commission decided that when the terms of the contract are not adhered to, builder is liable to refund the amount paid with interest and costs.
3. In Fortune Infrastructure and Anr. Vs. Trevor D’lima and Ors reported in III (2018) SLT 556=II CPJ I (SC)=2018 5 SCC 442, the 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 the amount paid by him along with compensation .
In the light of above discussion, we find both deficiency in service within the meaning of section 2 (11) and unfair trade practice within the meaning of section 2 (47) of the CP Act, 2019 to be well and truly evident on the part of the OPs 1 to 3.
In view of the above discussion, following directions are therefore, issued:-
(i) OPs 1, 2, 3 are jointly and severally directed to refund Rs. 13,04,442/- (Rupees thirteen lacs four thousand four thousand forty two) only to the complainant with simple interest at the rate of 9 percentp.a. from the respective dates of deposit till the actual date of payment failing which the amount shall attract interest at the rate of 12 percentp.a. from the same period.
(ii) OPs 1 to 3 are jointly and severally directed to pay the complainant a sum of Rs. 1,00,000/- (Rupees one lac) only towards compensation for inconvenience and mental agony suffered by the complainant on account of enormous delay in construction of the project, negligence and deficiency in service.
(iii) OPs 1 to 3 are also jointly and severally directed to pay Rs. 20,000/- (Rupees twenty thousand) only to the complainant towards the cost of litigation.
(iv) OPs 1 to 3 shall pay the aforesaid awarded amount to the complainant within 08 weeks from the date of passing of this order.
No order is passed against the OP-4/Central Bank of India, Ultadanga Branch as they did not receive any consideration amount from the complainant.
Thus, the complaint case is disposed of ex parte against the OPs.
Copy of the judgment be supplied to the parties as per rules. Upload this order on the website of this Commission immediately for perusal of the parties.
