Order No.  11  dt.  05/09/2018

            The case of the complainants in brief is that the complainants for the purpose of purchasing a flat entered into an agreement availing the brochure in the name and style ‘Nildiganto’. It was printed in the said brochure that West Bengal Housing Board and Bengal Shelter Housing Development Ltd. as a joint sector company engaged in joint business of providing service to the people of the society by raising housing construction for residential purposes. The complainants being doctors were in requirement for a flat exclusively for their own residential accommodation and obtained an application kit from the office of o.p. no.1 by payment of Rs.50,000/-. The complainants being the father and son jointly applied in the  prescribed form and also paid the part consideration price of Rs.4,99,945/- and further paid Rs.15,449/- towards Service Tax, out of total consideration price of Rs.14,99,780/-. In the agreement it was stated that o.ps. should have handed over earmarked flat to the complainants within the prefix time of three years from the date of booking the flat i.e. 20/01/2013 in lawful performance of the settled terms and conditions. The complainants, thereafter, to the utter surprise found that in spite of expiry of 36 months o.ps. did not make any construction. The complainants found that it was not possible for o.ps. to complete the construction within the stipulated period and after the expiry of the said period complainants demanded the amount of Rs.5,65,394/-, but o.ps. did not pay any heed, on the contrary, they offered another site whereby the construction was being carried out, but the complainants refused to accept the proposal of o.ps. On the basis of the said fact the complainants filed this case praying for direction upon the o.ps. for refund of the amount of Rs.5,65,394/- as well as compensation and litigation cost.

                The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that o.ps. are the developer company engaged in providing real estate services to the subscriber at large all over India and also in West Bengal. The o.ps. which act as joint sector company with West Bengal Housing Board and they have undertaken different projects at different places. The promoter /developer got building sanctioned plan and commenced construction work of multistoried building upon the said land with right and power of absolute sale, transfer, convey alienate the constructed area by a separate unit / garage to the intending purchaser for taking consideration money. The allotment of the apartment being no. ND/S-II/2/8C(Type-C) at Sohini II (UMIG), Block 2 at 8^th floor having an area 820 sqft. with covered car parking valued at Rs.17,49,780/- at Nildiganto Housing Project was provisional allotted in favour of the complainants dated 20/01/2013. The complainants paid a sum of Rs.5,65,394/-. In the agreement itself there is a clause force majeure provided that none of the parties will be regarded as breach of any of the terms and conditions of the said agreement. Because of such eventuality the construction could not be made within the stipulated period for which the complainants were also provided another place whereby the construction was being carried out by o.ps. but the complainants did not accept the said proposal. Since there was / is no deficiency in service on the part of o.ps. thereby o.ps. prayed for dismissal of the case.

                On the basis of the pleadings of parties the following points are to be decided:

1. Whether the complainants wanted to purchase the flat in question from o.ps.?
2. Whether o.ps. failed to handover the flat during the stipulated period?
3. Whether there was any deficiency in service on the part of o.ps.?
4. Whether the complainant will be entitled to get the relief as prayed for?

Decision with reasons:

                All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

                Ld. lawyer for the complainant argued that the complainants for the purpose of purchasing a flat entered into an agreement availing the brochure in the name and style ‘Nildiganto’. It was printed in the said brochure that West Bengal Housing Board and Bengal Shelter Housing Development Ltd. as a joint sector company engaged in joint business of providing service to the people of the society by raising housing construction for residential purposes. The complainants being doctors were in requirement for a flat exclusively for their own residential accommodation and obtained an application kit from the office of o.p. no.1 by payment of Rs.50,000/-. The complainants being the father and son jointly applied in the  prescribed form and also paid the part consideration price of Rs.4,99,945/- and further paid Rs.15,449/- towards Service Tax, out of total consideration price of Rs.14,99,780/-. In the agreement it was stated that o.ps. should have handed over earmarked flat to the complainants within the prefix time of three years from the date of booking the flat i.e. 20/01/2013 in lawful performance of the settled terms and conditions. The complainants, thereafter, to the utter surprise found that in spite of expiry of 36 months o.ps. did not make any construction. The complainants found that it was not possible for o.ps. to complete the construction within the stipulated period and after the expiry of the said period complainants demanded the amount of Rs.5,65,394/-, but o.ps. did not pay any heed, on the contrary, they offered another site whereby the construction was being carried out, but the complainants refused to accept the proposal of o.ps. On the basis of the said fact the complainants filed this case praying for direction upon the o.ps. for refund of the amount of Rs.5,65,394/- as well as compensation and litigation cost.

                Ld. lawyer for the o.ps. argued that o.ps. are the developer company engaged in providing real estate services to the subscriber at large all over India and also in West Bengal. The o.ps. which act as joint sector company with West Bengal Housing Board and they have undertaken different projects at different places. The promoter /developer got building sanctioned plan and commenced construction work of multistoried building upon the said land with right and power of absolute sale, transfer, convey alienate the constructed area by a separate unit / garage to the intending purchaser for taking consideration money. The allotment of the apartment being no. ND/S-II/2/8C(Type-C) at Sohini II (UMIG), Block 2 at 8^th floor having an area 820 sqft. with covered car parking valued at Rs.17,49,780/- at Nildiganto Housing Project was provisional allotted in favour of the complainants dated 20/01/2013. The complainants paid a sum of Rs.5,65,394/-. In the agreement itself there is a clause force majeure provided that none of the parties will be regarded as breach of any of the terms and conditions of the said agreement. Because of such eventuality the construction could not be made within the stipulated period for which the complainants were also provided another place whereby the construction was being carried out by o.ps. but the complainants did not accept the said proposal. Since there was / is no deficiency in service on the part of o.ps. thereby o.ps. prayed for dismissal of the case.

                Considering the submissions of the respective parties it is an admitted fact that both the parties entered into an agreement and the complainants applied for purchasing a flat from o.ps. and as per the terms of the said brochure provided by o.ps. it was decided that the flat is to be provided to the complainants within 36 months from the date of depositing the application money in favour of o.ps. The o.ps. have also admitted that there was some problems for which the project could not be completed and the flat could not be provided to the complainants. It is admitted fact that the complainants paid the part consideration price of Rs.5,65,394/- and the flat in question along with car parking space had not been completed within the stipulated period of 36 months. The complainants before filing of this case sent a notice demanding the amount from o.ps. but o.ps. instead of refund of money offered them to accept another place whereby the construction was being done by o.ps. but complainants did not accept the same. It is admitted fact that the complainants took the amount his PPF account and paid the part consideration price to o.ps. Since the flat has not been provided to the complainants and complainants demanded the money, therefore, we hold that there is deficiency in service on the part of o.ps. and the complainants will be entitled to get that the amount paid by them along with compensation and litigation cost. Thus all the points are disposed of accordingly.

                Hence, ordered,

                That  the CC No. 338/2017 is allowed on contest with cost against the o.ps. The o.ps. are jointly and/or severally directed to refund the amount of Rs.5,65,394/- (Rupees Five Lakhs Sixty Five Thousand Three Hundred and Ninety Four) only to the complainant along with compensation of Rs.50,000/- (Rupees Fifty Thousand) only for harassment and mental agony and litigation cost of Rs. 5,000/- (Rupees Five Thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.