18.03.2016
MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
Instant appeal under Section 15 of the Consumer Protection Act, 1986 has been filed by the Appellant/Complainant challenging the judgment and order dated 29.09.2014 passed by the Ld. District Forum, Kolkata, Unit – II in CC No. 143 of 2014 dismissing the complaint without cost.
The facts of the case, in brief, are that the Respondents/O.Ps published an advertisement in November, 2007 in leading dailies offering for sale of some flats in “Moonbeam” project.
The Appellant/Complainant, with a view to purchasing a flat in the said project, applied in prescribed form, sold by the Respondents/O.Ps, along with an application money of Rs.50,000/-.
The Respondent/O.P. No. 3, issued in the name of the Appellant/Complainant, a provisional allotment letter No. 1533/Moonbeam/WBHB dated 07.06.2008 indicating therein the flat number allotted in favour of the Appellant/Complainant and asked the Appellant/Complainant to deposit Rs.7,88,600/- being the balance amount after deducting Rs.50,000/-, the application money, from the total consideration of Rs.8,38,000/-.
Since the Appellant/Complainant made delay in payment, he ultimately had to pay Rs.12,834/- as penal interest over and above the total consideration due to the said delayed payment as per terms narrated in the brochure of the project for the period of delay.
In the brochure, there was specific provision for payment of interest at savings bank rate by the Respondents/O.Ps in case of delayed delivery of possession for the period of delay.
There being total delay of 40 months in handing over possession of the flat and common area as per the terms of the agreement and the Respondent/O.P. bank being not interested in payment of the interest due to be paid to the Appellant/Complainant for the said delayed delivery of possession, the aggrieved Appellant/Complainant filed the complaint before the Ld. District Forum which the impugned judgment and order relates to.
Heard the Ld. Advocate on behalf of both the parties.
The Ld. Advocate on behalf of the Appellant/Complainant submitted that the Appellant/Complainant had to pay a penal interest for delayed payment as per terms of the Agreement for an amount of Rs.12,834/- only.
The possession of the flat, as submitted, was to be delivered by the end of December, 2008 whereas the Respondents/O.Ps delivered possession on 03.10.2012. Therefore, there was delay of 40 months in delivery of possession. Since the terms of Agreement are equally applicable to both parties, the Respondents/O.Ps are also liable to compensate at savings bank rate of interest for the period of delay on paid amount as provided in the brochure brought out by the Respondents/O.Ps in connection with the said project.
The Ld. Advocate drew the notice of the Bench to the impugned judgment and order where the Ld. District Forum, citing the judgment of the Hon’ble Supreme Court reported in 2013 (4) CPR 423 (SC), set aside the claim of interest for delayed delivery of possession for an amount of Rs.1,12,065/- of the Appellant/Complainant. The Ld. Advocate contended that the above-mentioned judgment of the Hon’ble Supreme Court was not applicable in the instant case as the payment of interest was being governed by the Agreement which was in force and was, therefore, binding upon both the parties.
Heard the Ld. Advocate for the Respondents/O.Ps who submitted that it was the discretion of the Court to entertain or reject the prayer for payment of penal interest. It was submitted by him that the delayed delivery of possession was for the completion of construction caused due to the political disturbance in the area in question.
It was further submitted that letter under No. 4052/AHCE/HB dated 02.08.2013 (running page 59) of the Respondents/O.Ps, in response to the letter dated 04.07.2013 of the Appellant/Complainant (running page 58) wherein the said amount of penal interest was claimed, was sufficiently explicit about the compelling circumstances which caused the delay in delivery of possession. The Respondents/O.Ps, in the said letter, informed that the failure of the power supply body to provide the service connection actually stood in the way of completion of the project in time which resulted in the delay in delivery of possession. The situation, being beyond the control of the Respondents/O.Ps, as it was submitted, the claim of penal interest of the Appellant/Complainant could not be entertained as per terms of the Agreement.
Perused the papers on record. It appears that the Appellant/Complainant paid the penal interest for delayed payment for an amount of Rs.12,834/-.
It further appears from the letter dated 04.07.2013 of the Appellant/Complainant, addressed to the Respondent/O.P. No. 2 (running page 58), that a penal interest to the tune of Rs.1,12,065/- was claimed for 40 months delay in delivery of possession. It also appears from the letter under No. 4052/AHCI/HB dated 12.08.2013 of the West Bengal Housing Board, the Respondent/O.P. No. 1, in response to the above communication, that it has only defended itself from paying the penal interest highlighting therein the reason for the delay which, according to the Respondents/O.Ps, was beyond the control of the Respondents/O.Ps. There was no contention as to the period of delay and the rate at which the compensation was claimed.
Perused the provisions under the head “possession” in the brochure in relation to the subject project. It is clear that there is a provision for compensating at the rate of savings bank on the paid amount for the delay in delivery of possession, if the same is caused otherwise than any unforeseen circumstances beyond the control of the Board, that is, the Respondent/O.P. No. 1.
On perusal of papers on record and on careful consideration of submissions of both the parties, we are of the considered view that delay was not caused due to any unforeseen situation beyond the control of he Housing Board.
Since the Appellant/Complainant had to pay the penal interest for delayed payment of consideration as per the terms narrated in the brochure, we are of the considered view that the terms of paying compensation as envisaged in the said brochure in regard to delayed delivery of possession by the Respondents/O.Ps should be equally applicable.
It reveals on perusal of records that as per provisions laid down in the brochure, delay is to be calculated from January, 2009 till the date of delivery of possession. The possession certificate placed at the running page 54 of the case record reveals that physical possession of the flat was delivered on 4th October, 2012. Therefore, there was delay of about 45 months 3 days or say 45 months.
It is, therefore, ordered that the appeal is allowed in part on contest setting aside the impugned judgment and order. The Respondents/O.Ps are hereby directed to pay to the Appellant/Complainant an amount of Rs.94,275/- only being the compensation in the form of simple interest @ 3% per annum on the paid amount of Rs.8,38,000/- for a period of 45 months within a period of 45 days, failing which, simple interest @ 9% per annum shall accrue to the amount of the said compensation from the date of default till full realization.
The appeal is thus disposed of.
