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Ayaesha Gooptu v/s Ideal Real Estates Pvt. Ltd.

    Complaint Case No. 271 of 2017

    Decided On, 25 January 2022

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, PRESIDING MEMBER

    For the Complainant: Richa Raman, Advocate. For the Opposite Party: Soni Ojha, Punam Choudhury, Dipanjana Paul, Advocates.



Judgment Text

Final Hearing through Virtual Mode

The instant consumer case has been filed by the complainants against the opposite party praying for execution and registration of the deed of conveyance, delivery of possession of the flat in habitable condition, compensation, cost etc.

The brief fact of the case is that the complainants are the resident of Haryana. The complainants entered into an agreement for sale with the opposite party on 20/09/2011 for purchase of a residential flat. As per terms of the said agreement, the total consideration amount has been fixed for Rs 35,99,659/- The complainants already paid Rs 28,89,594/- as part payment of the consideration amount. A sum of Rs 7,30,930/- becomes due and payable by the complainants towards full and final payment. The extra charges is to be borne by the complainants as per terms of the agreement and as such total sum of Rs 10,67,297/- becomes due and payable by the complainants to the op. As per agreement, the construction of flat would be completed within 30/09/2013 which may be extended for the further period of 6 months i.e. on or before March, 2014 the construction work would be completed. But even after expiry of the said time limit, the op did not take any steps for execution and registration of the deed of conveyance. On several occasions the complainants informed the matter to op through letter dated 30/10/2015, 27/11/2015 and 25/10/2016. But the op wilfully neglected to provide any reply to the complainants. At present, the complainants along with their daughter resided at Haryana paying rent of Rs. 33,500/- per month. It is stated that the complainants are entitled to get a sum of Rs 17,92,116/- towards loss suffered by the complainants on account of wilful failure and deficient service on the part of op. Hence the case.

The Opposite Party contested this case by filing written version stating inter alia that the op entered into an agreement for sale with the complainants in respect of the said flat on terms and conditions contained in the said agreement. It is also stated that the construction of such a big project is depended upon the various factors as well as sanctions and permissions granted by the different authorities. In the present case, due to labour problem, the construction work became belayed. It is also stated that the complainants have failed and neglected to make payment of instalments as per the agreement. The opposite party issued notice of possession dated 25/02/2017 thereby calling upon the complainant no 1 to take the possession of the flat upon payment of the dues consideration amount. However, the complainants did not turn up to take physical possession of the flat. It is categorically stated that the aforementioned worst situation which was beyond the control of the opposite party and as such the op could not complete the construction work within time. But the op is now ready to execute and register the deed of conveyance in respect of the subject flat in favour of the complainants. So the present complaint is vexatious and frivolous one and as such it is liable to be dismissed with cost.

At the time of hearing learned counsel for the complainants urged that the complainants entered into an agreement for sale with the opposite party on 20/09/2011. The complainants have already paid Rs. 28,89,594/- out of total consideration amount of Rs. 35,99,659/- . The balance consideration amount of Rs. 7,30,930/- would be payable by the complainants. In addition to that the complainants shall have to pay of Rs. 10,67,297/- in respect of extra charges to be borne by the complainants and they are interested to pay the same to the op company. As per Consumer Protection Act the complainants are to be treated as Consumers. The ld counsel further argued that as per agreement, the construction work of flat in question would be completed within 30th Sept 2013 subject to force majeure of the period of further 6 months i.e. within March 2014. But after expiry of the said period the op/developer company has failed to handover the possession of the said flat as well as to execute and register the deed of conveyance in favour of the complainants. The ld counsel also stated that on several occasions the complainants informed the matter to op through letter dated 30/10/2015, 27/11/2015 and 25/10/2016. But the op wilfully neglected to provide any reply to the complainants. The complainants along with their daughter at present resided at Haryana paying the rent of Rs. 33,500/- per month and as such they were suffering from huge financial loss causing gross negligence and deficiency in service on the part of OP / company.

At the time of hearing, the ld counsel for the op/ company argued that the construction of such a big project was depended upon the various factors as well as sanctions and permissions granted by the different authorities. Ld counsel also added that in the present case, due to labour problem, the construction work became belayed. It is also stated that the complainants have failed and neglected to make payment of instalments as per the agreement. The opposite party issued notice of possession dated 25/02/2017 thereby calling upon the complainant no 1 to take the possession of the flat upon payment of the dues consideration amount. However, the complainants did not turn up to take physical possession of the flat. It is categorically stated that due to unavoidable circumstances, the opposite party could not complete the construction work within time. There is no gross negligence and deficiency in service on the part of op/company and as such the ld counsel prayed for dismissal of the complaint/petition filed by the consumers/complainants.

Heard the ld counsel for both sides at length through virtual mode. Perused all relevant documents and papers.

Before considering the instant consumer case at first I am trying to decide two important points:-

Whether the complainants are to be treated as Consumers or not as per Consumer Protection Act.

Whether there is any gross negligence and deficiency in service on the part of op/company or not.

It is admitted that the complainants paid Rs. 28,89,594/- to the op/ company as part payment out of total consideration and the balance amount of Rs. 7,30,930/- would be payable by the complainants further. Due to inclusion of additional charges, the balance due amount of Rs. 10,67,297/- is to be paid by the complainants themselves which is clearly revealed from the Table – ‘A’ attached with the written version filed by the opposite party/company. The said Table – ‘A’ also corroborates with the statements made by the complainants in their complaint-petition at the page no – 3 of paragraph no – 5 and as such there is no hesitation to hold that the complainants come well within the purview of the definition of the Consumer as per Consumer Protection Act. As per above observations point no – 1 is thus decided.

It is admitted that one agreement dated 20th September, 2011 has been executed between the parties in respect of residential flat being No. R/33, Block- Raw Sienna.

It is true that the construction work of flat in habitable condition along with car parking space would be completed within 30th September, 2013 which might be extended for further period of six months i.e. within March, 2014 which is clearly revealed from the clause No. 9.5 of the Agreement dated 20.09.2011 wherein the buyers/complainants and the director of OP company for self and as the constituted attorney of the owners made their respective signatures. Be it mentioned here that parties being Nos. 3.1 to 3.28 of the said agreement are declared collectively as owners and include successors – in- interest.

10.2.1 of the agreement also reveals that the transfer of the said flat and appurtenances should be completed by the concerned owners and ideal by executing conveyance in favour of the buyers/complainants.

It is fact that by the letter dated 30.10.2015, 27.11.2015 and 25.10.2016 the complainants informed the OP/Managing Director of the Company to make execution and registration as well as handing over the flat being No. R/33, Block- Raw Sienna in complete habitable condition along with all facilities in terms of agreement dated 20th September, 2011. At this stage, no proper steps have been taken by the OP/company.

Now, relying upon some documents filed by OP/company it is found that by letter dated 17.06.2016 (Annexure ‘A’) and by letter dated 25.02.2017 ( Annexure ‘B’), the OP/company requested the complainant to take the possession of flat being No. R/33 in Block Raw Sienna. But with reference of notice of completion dated 09.11.2016, the building has been inspected with reference to the provision of the Building Rules and as per approved plan it is certified to be fit for occupation as approved on 23.04.2018 which is clearly revealed from Grant of Occupancy Certificate issued by Bidhannagar Municipal Corporation on 30.05.2018. At this stage, I am surprised on the ground that the occupancy certificate has been approved as on 23.04.2018 but the OP/Company offered the Complainant to take possession and registration of the flat by letter dated 17.06.2016 and 25.02.2017 which are before granting of the occupancy certificate issued by Bidhannagar Municipal Corporation, Salt Lake, Kolkata- 106.

It appears from the lease deed dated 14.12.2016 that the complainants with their family members have been residing outside West Bengal at rented house as the OP/ company has failed to deliver the possession of the aforementioned flat to the complainants till date.

14.2 of the agreement provides ‘no default clause’. But by taking the said plea, the OP/company cannot escape from their liability as the OP/company already received 80% of the consideration amount from the complainants. At the time of hearing Ld. Counsel for the OP/Company repeatedly argued that the complainants have failed to pay the consideration amount within the proper time. In this respect, I can rely upon the following case law:-

In Sanjoy Kumar Gupta vs- Kebal Kisahan Baran and Ors. reported in 2014 (3) CPR 236 (NC), wherein Hon’ble National Commission held that the Consumer Forum is primarily meant to provide protection to the consumers and their claims cannot be defeated on technical grounds.

The above scenario clearly indicates that the agreement has been executed in the year 2011 and till date the flat in question has not yet been delivered to the complainants. So the plea of force majeure taken by the OP/ company, as per opinion of this Commission, has no leg to stand upon. After receiving the lion shares of consideration amount from the complainants, the OP/developer company has failed to deliver the possession of the flat to the complainants within time. It is not our expectation that the complainants by any means suffer from loss of money and time for the breach of the agreement on the part of OP/ company.

From the above discussion in details, it is clear that there is a gross negligence and deficiency in service on the part of OP/Company and as such the complainants are entitled to get relief as prayed for against the OP/ Company.

Point No. 2. is thus decided as pe

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r above observation. Accordingly, as per above observation the CC Case being No. 271/2017 is allowed on contest against the OP/ Company with the following directions:- (i) The OP/ Company is hereby directed to execute and register the Deed of Conveyance in favour of the complainants in respect of flat being No. R/33 in Block Raw Sienna clearly mentioned in the agreement dated 20.09.2011 within 60 days from the date of this order and the complainants are hereby directed to pay the balance consideration amount of Rs. 10,67,297/- (ten lakh sixty seven thousand two hundred ninety seven) only to OP/Company at the time of execution and registration of the deed of conveyance. (ii) The OP/Company is further directed to provide the possession of the aforementioned flat to the complainants within 60 days from the date of this order. (iii) The OP/Company is also directed to pay compensation of Rs. 2,00,000/-(Two Lakh) only for mental and physical harassment and to pay litigation cost of Rs. 25,000/- (twenty five thousand) only to the complainants within 60 days from the date of this order i.d. the awarded amount of Rs. 2,25,000/- (two lakh twenty five thousand) only shall carry interest @ 8% p.a. till full realisation.
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