This is an application u/s.12 of the C.P. Act, 1986.
The subject matrix of the instant case is that the complainant in response to the advertisement in November, 2007 of the OP in Newspaper offering for sale of Flats in -MOONBEAM- Project, the complainant applied for an MIG Type flat in Moonbeam Project on 17-12-2007 along with the application money of Rs.50,000/- and paid to the OP/Housing Board.
It is stated by the complainant that as drawn from the Lottery, the OP3, issued Provisional Allotment letter Nov.533/MOONBEAM/WBHB Dated 07-05-2008 allotting Flat No.M17B/14 and asked him to deposit the full amount of Rs.8,38,600/- after deducting the application money i.e. net total amount of Rs.7,88,600/-. Accordingly, he paid the total amount of Rs.7,88,600/- along with penal interests as per terms of the Brochure for delay of a few days arising out of delay for sanction of its loan by LICHFL.
It is also stated by the complainant that the OP though promised in its Brochure as per terms and conditions to handover the Flat by the end of 2008, but they neglected to do so and after long persuasions, ultimately by handed over the possession of common area of facilities on 04-05-2012 and he got the Flat No.M17B/14 on 03-10-2012.
The specific case of the complainant is that in the Brochure the OP promised to compensate for delay in handing over the common area of facilities by payment of Savings Bank rate of Interest on the deposited amount for the period of delay. Accordingly, he submitted a prayer on 21-02-2013 for getting the promised compensation and on getting no reply, he submitted another prayer on 04-07-2013 claiming Rs.1,12,065/- as interest compensation for delay of 40 (forty) months, in handing over the possession of common area facilities from them. But the OP3 vide its letter No.4052AHC1/HB dated 02-08-2013 refused to pay the promised compensation/Interest on flimsy ground that the service connection was not provided in time by the Power Providing Body and so it was beyond their control as stated by the OPs.
For this act of OPs, the complainant further stated that he suffered from mental agony, harassment as well as pecuniary loss due to deficiency, through negligence, inordinate delay on the part of OPs in handing over the possession and also deficiency on the part of OPs in dealing with the complainant-s prayer for such compensation.
Hence, this case.
In its written version, the OPs stated that the complainant had applied for allotment of a MIG Type of Flat at Moonbeam Housing Project at Rajarhat, New Town, on 17-12-2007 vide Form No.01102 and deposited Application Money, of Rs.50,000/- against advertisement published by the Board in the year, 2007.
It is also stated that the Flat No.M 17h/8/14 of MIG Type at Moonbeam Housing Project, New Town, Rajarhat has been allotted through lottery held on 20-02-2008 under general quota in the name of the complainant and accordingly a letter was issued on 07-05-2008 vide No.1533/MoonBeam/ WBHB to him. The price of the said Flat was Rs.8,38,600/-. The allottee had paid the allotment money of Rs.7,88,600/- on 07-08-2008 vide MR No.3757 and on 24-04-2011 vide MR No.2648 towards the Penal Interest on allotment money for delayed period of payment. The common areas and facilities of the MoonBeam Housing Project have been handed over to the Moon Beam Apartment Owners- Associations on 04-05-2012 by them. The notice for Execution of Deed was issued on 21-06-2012 vide Memo No.1785/AHC-II/HB. The Sale Deed has also been executed on 03-10-2012 and the deed has been registered on 03-10-2012 vide Deed No.1-12526/2012 at ADSR, Bidhannagar and the possession letter of the Flat has been issued on 03-10-2012 vide Memo No.401/POSS/AHC-1 in favour of the complainant and he has taken peaceful possession of the said flat from the Deputy Director of Moon Beam Housing Project (East Horizon) in good and satisfactory condition on 04-10-2012 vide Possession Certificate No.137/Moon Beam/EPP/HB.
But the complainant has applied for payment of compensation for the delay in handing over of the common Area Facilities and against the said application a reply has been sent by the AHC-I of the Board on 02-08-2013 vide letter No.4052/AHC-I/HB stating inter alia that due to the failure on the part of the statutory authority regarding supply of electricity, the delay was caused and there was no intentional or willful laches on the part of the OP as alleged by the complainant who knowing it fully well accepted the possession and the OP has also executed the Deed of Conveyance in favour of the complainant and as such the same reflects that OP was diligent to provide service at their best and no point of time the OP did commit any negligence and deficiency in service.
So, the OPs stated that since there was no willful negligence on their part and, as such, the present complaint cannot stand and is liable to be dismissed as per terms and conditions of the Moon Beam Housing Project. So, the OPs pray for dismissal of the case.
Decision with Reasons
After thorough study of the complaint along with the written version and also relying upon the defence of the OP and allegations by the complainant, it is admitted fact that the complainant paid the entire consideration money i.e. Rs.7,88,600/- on 07-08-2008 vide MR No.3757 for allotment of a MIG Type Flat at Moon Beam Housing and also paid a sum of Rs.12,834/- on 24-02-2011 vide Mr No.2648 towards the penal interest on allotment money for delayed period of payment to the OP.
The main contention of the complainant is that since the OP promised to handover the Flat along with Common Area facilities by the end of the year 2008 and failed to do so, and after long, persuasion, ultimately, they handed over the possession of common area on 04-05-2012, so, for such delay of 40(forty) months in handing over the possession of common Area facilities, he is to be compensated by payment of Savings Bank rate of interest on the deposited amount for the period of delay in handing over the possession by them.
On the other hand, it is the submission of OP/Housing Board that the common areas and facilities of the Moon Beam Housing Project has been handed over to the Moon Beam Apartment Owners- Association on 04-05-2012 by them. The notice for Execution of Deed was issued on 21-06-2012 vide Memo No.1785/AHC-II/HB, sale deed has been executed on 03-10-2012 and the deed has been registered on 03-10-2012 vide Deed No.1-12526/2012 at ADSR Bidhannagar. The possession letter of the said flat has been issued on 03-10-2012 vide Memo No.401/POSS/AHC-I in favour of the complainant.
But astonishingly, after having the peaceful possession of the said flat from the Dy. Director of Moon Beam Housing Project (East Horizon) in good and satisfactory condition on 04-10-2012 vide possession certificate no.137/Moon Beam/EPP/HB, the complainant has applied on 12-02-2013 claiming interest for delay in possession of the Flat for which the OP explained the reason of delay vide its letter addressed to the complainant dated 02-08-2013 stating inter alia that due to the failure on the part of the Statutory Authority regarding the supply of electricity, the delay was caused and there was no intentional or willful laches on the part of the OP. Hence, practically there was no deficiency in service on the part of the OP Housing Board.
In the light of the above observation and considering the material records of this case, we find from the Brochure of the West Bengal Housing Board in one of its clause regarding possession wherein it is stated that -All the flats including common facilities will be completed by the end of 2008 unless for unforeseen circumstances beyond the control of the Board-. In this case, vide its letter No.4052AHC-E/HB dated 02-08-2013 the OP/Housing Board have justified the reason for the delay of handing over the common Areas and facilities of Moon Beam Project, New Town, wherein stated that because the service connection was not provided in time by the power providing body which is a necessity as mentioned in Clause(c) of broad heading -External Electrification- in the brochure of Moon Beam Housing Project which is very much on event and beyond the control of W.B.H.B.
However, the following judgments have been referred from the side of the complainant before this Forum-
- WB State Consumer Disputes Redressal Commission SC Case No.366/A/07.
- Civil Appeal No.5584 of 2012 S. Srinivasa Murty vs. Karnataka Housing Board.
- National Consumer Disputes Redressal Commission 2037-202043 of 2009 HUDA vs. Satyavir Arya & Ors.
On critical appreciation of the complaint and the written version including the terms and conditions of the agreement we have gathered that there is a specific clause that in case of delay in delivery of the possession of the flat for any such uncontrolled situation the OP Authority is not responsible. But anyhow, complainant has tried to convince that as per agreement the delivery of the possession of the flat must be made by December, 2008, but truth is that it has been handed over on 04-10-2012 that is long after four years and no doubt as per agreement complainant has prayed for directing the OP to pay the interest as per agreement but truth is that in between the period from December, 2008 to 04-10-2012 either complainant was in a rented house but in the meantime no doubt the price of the flat has been increased at a high rate. However, complainant got the possession on payment of agreed amount of Rs.8,38,600/- and if the said flat is sold in the market at present the price of the flat shall be around Rs.60 lakhs and that is the truth and as per valuation of the Registration Department such type of flat is sold at a price of Rs.60 lakhs that means complainant has not suffered any financial loss on the ground complainant got the said flat no doubt after 4 years only on payment of that agreed amount of Rs.8,38,600/- that means complainant himself has got benefit of about 52 lakhs and it shall be treated as enjoyment of interest on payment of that amount and it is the theory of economic jurisprudence that benefit from any goods if it is enjoyed directly or indirectly in that case, the seller shall not have to pay any further interest when seller has not charged any escalation amount or any further amount against delivery of possession after stipulated period and as per economic jurisprudence in this case particularly complainant has got a flat valued at Rs.60 lakhs at present that means he has enjoyed the huge interest. But even then the OP has not charged any escalation amount. As per economic jurisprudence theory for any damage claim consumer must have to show in all respect that the article what he has purchased even if it is sold at that moment the price of the said good is decreased but if it is found that the goods purchased at a cost, if it is sold at present market price the seller, (consumer) is found benefitted in that case there is no question of getting any damage or interest from any promoter or Government Organization who has sold the flat. Particularly in this case complainant has got the flat no doubt after 4 years and he has been enjoying the same for last two years and invariably he has been enjoying the flat in a posh area in Rajarhat Township where a small type of flat is sold in Rs.40,000/- where complainant flat-s current value is about Rs.60 lakhs then complainant is beneficiary of the escalation of the amount of the flat what the OP has transferred.
In the light of the above observation we are convinced that this consumer has not suffered from any sort of loss or damage so question of giving any interest by the OP to the complainant does not arise. Considering all the above facts and also relying upon the ruling as mentioned we find that those rulings are not based on any legal principle or legal aspect or not on the basis of economic jurisprudence. So, the ruling as referred by the complainant cannot be relied by this Forum on the ground the approach of the ruling is completely against any confirmed legal decision on the basis of any legal principle.
Accordingly, we are not relying upon these ruling as referred by the complainant rather we have gathered from the ruling i.e. the judgment 2013(4) CPR 423 (SC)- Huda vs. Suresh Kumar Makkar we are convinced that even the judgment passed by the National Commission is set aside by that Supreme Court Judgment and particularly the judgment of National Commission dated 14-03-2008 was set aside and in that judgment National Commission allowed interest etc. So, we find that complainant in this case has failed to prove by any cogent documentary evident that due to receipt of the possession after lapse of 4 years he suffered financially but by adjudication the Forum has confirmed that this complainant has not suffered rather gained much and if complainant wants to sell the flat it can be sold at a price of Rs.60 lakhs. That means he has got benefit of 5 times of the invested amount and that is the gross benefit and practically for delayed possession OPs have suffered financially but not charged any escalation amount.
Accordingly, the complaint fails.
Hence,
Ordered
That the case be and the same is dismissed against the OP/Housing Board without any cost.
Let the copies be supplied to the parties as per rules.
