The present Appeal is filed by the Appellant under Section 19 of the Consumer Protection Act, 1986 against Order passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the “State Commission”) in Complaint No. 410/2017 dated 19.11.2019.
2. Along with the Appeal, IA/524/2020, an application for condonation of delay of 25 days has also been filed by the Appellant. For the reasons stated in the application, delay is condoned.
3. The case of the Respondent/complainant is that pursuant to an advertisement published by the Opposite Party, the Petitioners/Complainants entered into an agreement for purchase of one flat with covered parking space at BAGESREE (HIG) Block-3 at Neel Diganta, Barasat, North 24 Parganas by filing an application form on 19.7.2012 along with Rs. 75,000 towards application money. The Petitioners issued allotment letter on 16.8.2012 in respect of an apartment No. NB/B/3/9B (Type-B) having an area of 1,331 sq. ft. on 9 th floor in the said project for a total consideration amount of Rs. 27,61,885 and Rs. 2 lakh towards car parking, totalling to Rs. 29,61,885 along with 3.09% service tax of sale price. The Respondents paid Rs. 8,92,198 as part consideration. The Opposite Party was supposed to deliver the possession of the flat within 48 months from the date of allotment i.e. 16.8.2012. As the Opposite Party did not allot the same, despite several requests and legal notice, Complaint was filed before the State Commission with following prayer:
“A. An order directing the Opp. Party to hand over the flat and covered car parking space after receiving the balance consideration money fully mentioned in the schedule below in favour of the complainants within very shortly.
B. Alternative an order directing the Opposite Party to refund the total money amounting to Rs. 8,92,198 only alongwtih interest @ 18% per annum from 14.8.2012 to till date when the Opp. Party shall pay to the complainants.
C. An order directing the Opposite Party to pay the compensation as assessed by this learned Commission.
D. or all costs of this case.
E. For any other relief or reliefs as the complainants are entitled to the law and equity.”
4. The Opposite Party filed reply that construction got delayed from time to time due to force majeure conditions as follows:
“(a) Delay for local syndicate problem with the help of some plot holder who intends to extra money from the developer filed litigation and now all the project land is litigated property and project is pending for this;
(b) Due to the aforesaid dispute the electric substation is not possible to install;
(c) Temporary or permanent, interruption in the supply of material or utilities serving the project (NEEL DIGANTA) in connection with the work;
(d) Disturbance created by Local Problem;
(e) Non-availability of workmen as per the requirement.”
5. The State Commission after hearing both the parties ordered as follows:
“Therefore, considering the facts and circumstances and the authorities referred above as there was deficiency of services on the part of Opposite Party, the complainants are entitled to refund of the amount paid by them along with compensation. Now, in determining the compensation to be awarded in this case, let us see Clause 16 of the agreement which runs as follows:
“16. If 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.”
Keeping in view Clause 16 of the terms of the agreement, we think the complainants are entitled to refund the amount of Rs. 8,92,198 along with interest thereon @ 8% p. a. from the date of each payment till its realisation. As the situation compelled the complainants to lodge the complaint, they are also entitled to litigation costs which we quantify at Rs. 20,000.
In view of the above discussion, the complaint is allowed with the following directions:
(i) the Opposite Party is directed to refund Rs. 8,92,198 along with compensation in the form of simple interest @ 8% p.a. in favour of the complainants from the date of each payment till its realisation;
(ii) the Opposite Party is directed to pay Rs. 20,000 to the complainants as costs of litigation;
(iii) the above payment must be paid within 90 days from date.”
6. Heard the learned Counsel for the Appellant and carefully perused the record. The Counsel very clearly stated at the outset that the apartment has not yet been completed so far and possession of the flat not handed over to the Respondents/Complainants, though the possession was to be delivered four years after the date of allotment i.e. 16.8.2012. The State Commission clearly held that in the terms and conditions of the agreement we do not find any Clause as to Force Majeure circumstances. The plea taken by OP under force majeure circumstances, therefore, had no significance with the facts and circumstances of the case. The Opposite Party has not provided any evidence in support of the unforeseen and unexpected events which prevented the construction of the allotted unit, but merely narrated a set of events and circumstances which routinely are faced by any project developer. The Petitioner/Opposite Party, therefore, cannot take shelter of any force majeure circumstances. A person cannot be made to wait indefinitely for the possession of flat allotted to him/her. The reasons stated as for
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ce majeure conditions are only delay tactics to handover the possession of the apartment. The Complainants are, therefore, well entitled to seek refund of the amount paid by them, along with compensation. The State Commission has rightly directed the Opposite Party to refund the amount deposited along with compensation in the form of simple interest and litigation cost. 7. For the aforesaid reasons, I do not find any illegality or infirmity in the order of the State Commission. There is no merit in the Appeal. The order of the State Commission is confirmed and the Appeal is dismissed with no order as to costs. Appeal dismissed.