For the Complainants                     - Mr.  S. Guha, Advocate

For the OPs                                        -Mr. Rajesh Biswas, Advocate

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT :  

This is an application u/s.12 of the C.P. Act, 1986.

Brief stated, the facts of the case are : -

That the complainants were allotted  an Apartment measuring about 820 Sq. ft. with one covered car parking on the 8^th floor of “Sohini-II/164” at  “ Neel Diganta “ Housing Project, Barasat, North 24 Parganas together with common area and undivided proportionate share of land at a total consideration of Rs.17,49,780/- fully described in the allotment letter dated 08.02.2013. Complainants have already paid Rs.7,47,362/- to the OP-2 on different dates. OP-2 agreed to handover possession of the subject  Apartment within 48 months from the date of allotment. The OP-2 failed to handover possession of the subject Apartment within the stipulated period as the project is incomplete. Finding no other alternative, complainants vide letter dated 23.11.2017 requested the OP-2 to refund the deposited amount but the OP-2 did not pay any heed to refund the deposited amount. Hence, the complainants have filed this consumer complaint praying for refund of deposited amount including compensation and litigation cost.

The OPs have contested the case by filing a joint Written Version wherein they have denied all the allegations  made out in the consumer complaint. The specific case of the OPs is that by a letter of Allotment dated 08.02.2013 Apartment No. ND/S/II/3/8D(Type-D) at Sohini – II (UMIG), Block-3, 08^th floor having an area of 820 Sq. ft. with covered car parking at “ Neel Diganta “ Housing Project was provisionally allotted in favour of the complainants against Application No.0848 dated 11.01.2013. The value of the subject Apartment is Rs.17.49,780/-. Complainants were fully aware regarding general terms & conditions of the agreement. The OPs vide letter dated 01.06.2015 informed the complainants that they are not able to complete the project within due time on account of some unforeseen circumstances. The OPs offered the complainants an option to transfer the booking from the proposed project to another project of the OPs named “Sisirkunja” at a discounted price. On account of delay to non supply of electric power from the WBSEDCL, the  OPs failed to complete the project. The consumer complaint is speculative, harassing motivated, concocted, fabricated and for wrongful gain. Thus, the OPs have prayed for dismissal of the complaint with cost.

In the light of the pleadings of the parties  the following points are came up for determination :-

1)         Whether the consumer complaint is maintainable in its present form and in law?

2)         Whether there is any deficiency in service on the part of the OPs for non delivery of possession of the subject flat to the complainants within 48 months from the date of allotment ?

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

Decision with Reasons

            Point Nos. 1 to 3 :-

            All the points are taken up together for the sake of convenience and brevity in discussion.

            Both the parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by the adversaries. Both parties also  filed Brief Notes of Arguments.

            Upon taking into account of the entire fact of the consumer complaint including the Written Version of the OPs and also considering the argument advanced by the Learned Advocate for the parties  and further on overall assessment and evaluation of the evidence as well as documents on record, it is found that the OP-2 provisionally allotted Apartment No. ND/S/II/3/8D (Type-D) at Sohini –II (UMIG), Block 3, 8^th floor having an area of 820 Sq. ft. valued at Rs.17,49,780/- with a covered car parking at “ NEEL DIGANTA” Housing Project to the complainants against Application No.0848  dated  11.01.2013. It is also true that the complainants have paid Rs.7,47,362/- to the OP-2 on different  dates. Fact also remains that the OP-2 agreed  to handover possession of the Apartment to the complainants within 48 months from the date of allotment. It is not in dispute that on account of  various force measure condition which includes delay in non supply of electric power from the end of the WBSEDCL the development works of the project got interrupted. OP-2 vide letter dated 01.06.2015 had approached the complainants to understand the situation and to bear with them.

            On perusal of Annexure-E of the consumer complaint it appears that the complainants approached the OP-2 to refund the deposited amount of Rs.7,98,857/- along with interest  at the rate of 18 percent per annum. We also note that vide letter dated 21.12.2017 the OP-2 requested  the complainants  to transfer the booking from “ NEEL DIGANTA” to “Sisirkunja” Project with a discounted price. Complainant did not accept such proposal and ultimately, the OP-2 failed to refund the deposited amount on the ground that fund are locked in the concerned project.

            As per general terms & conditions of the Allotment letter dated 08.02.2013 the  complainants are free  to withdraw their applications and cancel their booking  any time even after issue of provisional allotment letter but before the possession of flat is made over. In that event the total deposit will be refunded after deduction of penal charge  at the rate of 10 percent from the amount deposited / paid up to the date of withdrawal. All such refund to residents and Non-resident Indians (NRI) Foreign Citizens of Indian Origin shall, however, will be made in Indian Rupees only. In addition to Penal / Cancellation charges as above, statutory deductions if any, on such cancellation will also be borne by the allottee (Clause-7).

            Clause-16 of the terms & conditions goes to show that if OP-2 Bengal Shelter fails to deliver possession of the flats to the Allottee (s) within the stipulated time subject to force majeure as stated herein below) and if on this account the allottee wishes to withdraw his /her application, in that event the amount deposited by him / her will be refunded with simple interest at the rate applicable to the Savings Bank  Account in a Nationalized Bank,  without  any other claim for damages or compensation whatsoever.

            The claim made by the complainants is on account of delay in handing over  possession of the Apartment No. ND/S-II/3/8D (Type-D) of  Sohini – II (UMIG), Block-3, 08^th floor having an area of 820 Sq. ft. with covered car parking at “ Neel Diganta” Housing Project within 48 months from the date of allotment. It is not in dispute that the OP-2 failed to handover possession of the Apartment to the complainants within 48 months from the date of allotment letter on the ground of non availability of electricity from the WBSEDCL but on such ground the complainants cannot wait for an indefinite period. Complainants are compelled to cancel their bookings due to laches on the part of the OPs. Therefore, the OP-2 is bound to refund the deposited amount with simple interest at the rate applicable to the Savings Bank Account in a Nationalized Bank, without any other claim for damages or compensation whatsoever as per clause-16 of the  General Terms & Conditions.

            As per provision of Section 12 (1) (o) of the CP Act, 1986 the OP-2 is the service provider and under  proviso of Section 2 (1) (d) of CP Act, 1986 complainants are the consumers who hired/avails of service for a consideration. Allotment agreement is a bilateral agreement and it binds upon both parties. The defect or lacuna in the document so far as stamp duty is concerned cannot be agitated at this stage when the parties are at the stage of giving effect to the document in terms of  the agreement, incorporated therein. Now either of the parties cannot be permitted to withdraw from the document on the plea that this is a defective one causing damage / loss to the other partiers. Since this is a bilateral document and it is the duty of both parties who signed it to look into the matter. OPs cannot take the plea of deficit stamp duty at this juncture after signing the document on receiving a part consideration amount. Complainants cannot suffer alone for the deficit stamp duty as alleged by the OPs in their Written Version.

            Based on the above discussion, we are of the view that there is deficiency in service on the part of the OPs and in fact they withhold the deposited amount without any cogent reason. The Consumer Protection Act came in to being the year 1986. It is the benevolent legislation to protect the Consumers for exploitation. The spirit of the benevolent legislation cannot be overlooked and object is not to be frustrated. The act and conduct of the OPs are a clear case of deception, which resulted in the injury and loss of opportunity to the complainants. The complainants cannot wait indefinitely to get the deposited / paid money. The complainants have suffered mental agony 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 the relief the complainants have a legal battle. In the circumstances, the complainants are entitled to refund deposited amount of Rs.7,47,362/- along with simple interest  at the rate of 5 percent per annum from the date of payments till its realization.

In the result, the case succeeds.

Hence,

Ordered

            That the complaint case be and the same is allowed on contest against the OPs with litigation of Rs.5,000/- (Rupees five thousand) only.

            OP-2 is directed to refund  of Rs.7,47,362/- ( Rupees seven lacs forty-seven thousand three hundred sixty two) only along with compensation in the form of  simple interest  at the rate of 5 percent per annum from the date of cancellation of booking payments till its realization and litigation cost to the complainants  within 45 days from the date of this order.

Liberty be given to the complainants to put the order in execution, if the OP-2 transgresses to comply the order.