SHRI  REYAZUDDIN KHAN,MEMBER

This is an application U/s.35 of the C.P. Act, 2019.

The brief fact of the case is that the above mentioned Complainants being interested in the project of “IVY GREENS II,Phase II”of the OP lying and situated within the P.S-Rajarhat,Dist North 24 Parganas, Mouza, Sikharpur Gram Panchayat,Chandpur,Po,Bagu,West Bengal.The complainants have submitted an application for one of the apartment being Unit 5 on the 2^ndFloor in Block No.IG-05,measuring about 1040 sq.ft super built up area along with one open car parking space at the consideration amount of Rs,32,24.000(Thirty Two Lakh Twenty Four Thousand)only plus service tax against flat and Rs,2,50,000/ against covered car parking space,total consideration amount Rs,34,74,000/ plus service tax and other charges separately. A sale deed was executed on 03.02.2017 between the parties.The Complainants were assured of possession of the subject flat  within 36 months from the date of the execution of the sale deed.  Subsequently,in terms of the said agreement and as per demand of OP,the complainants have paid Rs.11,67,474/-(Rupees Eleven Lakh Sixty Seven thousand Four Hundred Seventy Four) only to the OP on different dates. It is submitted by the complainants since March 2020 the OP palpably failed and neglected to provide any information regarding the delivery of peaceful possession of the said apartment in favour of the complainants. On enquiry, the OP did not respond and kept silent on the issue.Accordingly,the complainants have send one demand notice on 18.08.2020 requested for handover of the peaceful possession of the subject apartment within 10days from the date of the receipt therof,alternatively requested to refund the deposited money of Rs,11,67,474/-.The complainants send another notice through their Ld.Advocate on 10.12.2020 demanded the same but the OP did not take any step to resolve the issue.This is absolutely a deficiency in service and unfair trade practice on the part of the OP.Thus, the OP has not discharged their obligations and misappropriated money of the complainants for their wrongful gain. Such acts and omissions of the OP tantamount to unfair trade practice as well as cheating and fraud and for the misdeeds of the OP the complainants have suffered a lot . Finding no other way the complainants have approached the Commission for justice with relief as detailed mentioned in the complaint petition.

 OP has contested the case by filing their Written Version contending inter alia that the complaint is not maintainable either in law or on fact, it is also barred by limitation. The complainants are not a consumer within the meaning of Consumer Protection Act,1986. The OP stated that there has been economic slowdown in overall development in the infrastructure sector which adversely affected the progress of the project.The demonetization, the change in real estate law,and further the Covid-19 Pandemic delayed the project.The change in construction and handing over of the concerned unit has been owing to intervening “Force Majeure” events which was beyond the control of the Opposite party.There is no deficiency in service and or unfair trade practice on the part of the answering OP.Therefore,the complaint should be dismissed with cost.

Points for Determination

In the light of the above pleadings, the following points necessarily have come up for determination.

1)  Whether the OP is deficient in rendering proper service to the Complainant?
            2)  Whether the OP has indulged in unfair trade practice?

           3)  Whether the complainants are entitled to get relief or reliefs as prayed for?

                                                         Decision with Reasons

Point Nos. 1 to 3 :-

The above mentioned points are taken up together for the sake of convenience and brevity in discussion.

Complainants have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by the OP.

On perusal of the case, evidence led by the parties coupled with the documents annexed therewith, it would reveal that  complainants submitted an application for booking of one residential Unit B-2 on the 2^nd  Floor,Block No.IG-05,measuring about 1040 sq.ft super built up area along with one open car parking space. P.S-Rajarhat ,Dist North 24 Parganas, Mouza, Sikharpur Gram Panchayat,Chandpur,Po,Bagu,West Bengal.Complainants paid  Rs.11,67,474/-(Rupees Eleven Lakh Sixty Seven thousand Four Hundred Seventy Four) only to the OP on different dates out of total consideration amount Rs Rs,34,74,000/ plus service tax and other charges separately.In spite of several requests the OP kept silent and did not respond to any of the letters/verbal pleadings of the complainants. The complainants have been deceived as well as they were given physical, mental and financial injury by opposite party' act of criminal conspiracy, false representation and fraudulent act and defective service. It is crystal clear from the facts and circumstances of the case that there has been a deficiency in services rendered by the opposite party and the opposite party has opted unfair trade practices for selling the flat to the innocent purchaser..

 “The OP has repeatedly reiterated that the delay caused in this regard  is due to emergence of covid-19 situation and subsequent lock down declared by both the Central and the State Government and the situation went beyond their control.

Commission expressed that the OP cannot take shelter of the “Force Majeure” Clause and the reasons cited by the OP for the delay of the project, appeared to be delaying tactics veiled as “Force Majeure” conditions and seemed to be an attempt to wriggle out of its contractual obligations. It was noted that even after receiving the substantial amount OP failed to fulfill its contractual obligation of delivering possession of the Unit to the complainant within the time stipulated”.
  So, it is established that the OP has not been able to hand over possession of the subject flat to the complainants within the stipulated period as mentioned in the sale agreement dated 03.02.2017.The OP is fully aware that he is liable to pay the deposited advance amount including interest thereon to the complainants. Complainants deposited his hard earned money to the OP. The OP deliberately make their illegal gains and to deprive the complainant from his lawful right withheld the deposited amount. Thus, the OP has adopted unfair trade practice, and in fact, withhold the deposited amount of Rs.11,67,474/-(Rupees Eleven Lakh Sixty Seven thousand Four Hundred Seventy Four) only  along with accrued interest. Complainants have filed his affidavit reaffirming the allegations. Thus, it stands proved that despite of having received Rs.11,67,474/-(Rupees Eleven Lakh Sixty Seven thousand Four Hundred Seventy Four) only the OP has failed to refund the said amount. In absence of any explanation for failure to comply with the stipulation of refund of deposited amount, we have no hesitation in concluding that the OP has committed deficiency in service and also has indulged in unfair trade practice.

The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent  legislation cannot be overlooked and its object is not to be frustrated.

 OP failed and neglected to pay deposited advance amount Rs.11,67,474/-(Rupees Eleven Lakh Sixty Seven thousand Four Hundred Seventy Four) only which they have to pay to the complainant and the act and conduct of the OP is  clear case of deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not deposited/paid his money with the OP, he would have invested the same elsewhere? The complainants cannot be wait indefinitely to get the said amount. The complainants have suffered mental agony, pain and harassment. It is settled principle of law that the compensation should be commensurate with loss of suffered and it should be just, fair and reasonable and not arbitrary. To get relief, the complainants have to wage a long drawn and tedious legal battle. In these circumstances, the complainants are entitled to refund of deposited amount along with  compensation. and interest.

Keeping in view of  and the fact and circumstances of the present case  we are of the considered opinion  that the Complainants have established the case against the OP.

In the result, the Consumer Complaint succeeds .

Hence,

Ordered

That the Complaint Case be and the same is allowed on contest against the OP  with the following directions:-

1. The OP is directed to refund  the sum of Rs.11,67,474/-(Rupees Eleven Lakh Sixty Seven thousand Four Hundred Seventy Four) only to the complainants with interest @ 9% calculated from the date of first installment/payment ( i.e, 19.11.2016) was received by the OP till final realization.
2.  The OP is further directed to pay Rs.50,000/-  to the complainants  as compensation  for causing harassment and mental agony..
3. The OP is also directed to pay Rs.10,000/- to the complainants as litigation costs.

In the event of non compliance of the order, liberty be given to the Complainantsto put the order into execution U/s 71 & 72 of the C.P. Act,2019.

The judgment be uploaded to the website of the Commission forthwith for perusal of the parties. Copy of the Judgment be supplied to the parties free of cost as per the C.P.Act