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Dr. Biswajit Das & Another v/s M/s. Shelter Infra Projects Limited & Another

    Complaint Case No. 410 of 2018
    Decided On, 31 August 2022
    At, West Bengal State Consumer Disputes Redressal Commission Kolkata
    By, THE HONOURABLE MR. JUSTICE MANOJIT MANDAL
    By, PRESIDENT & THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER
    For the Appearing Parties: --------


Judgment Text
Samiksha Bhattacharya, Member

The Complainants have filed the instant complaint under section 17(a)(i) of the C.P. Act, 1986 alleging deficiency in service against the O.Ps.

The facts of the case, in brief, are that the complainant being the medical officers by profession had jointly applied before the O.P. No. 1 for allotment of a subject unit being flat No. 19E, Floor no. 19, Tower 1, being more or less approximately 1190 sq. ft. together with one covered car parking space and accordingly complainants paid a sum of Rs.9,12,968/- to the O.P. No. 1 on 08.01.2011 by way of three cheques with the application form. At the time of application the O.P. No. 1 had categorically represented to the complainant that all the necessary sanctions from the statutory authority in respect of the said project has been obtained and the same would be completed by mid 2012. Thereafter, from time to time the complainants had diligently approached the O.P. No. 1 and sought for date of execution of the agreement for sale of the aforesaid unit along with the covered car parking space. The O.P. No. 1 on the pretext that when the construction of the said project would commence they would enter into the agreement for sale. Till July, 2012 no construction has been started on the site for the reasons best known to the OPs. In such circumstances, the complainants by their letter dated 28/07/2012 asked the O.P. No. 1 to refund the application money together with accumulated interest thereon, but no response came from the O.P. No. 1. Instead of refunding back the application money, the O.P. No. 1 , had sought for extra time to commence the project since the sanction has not been granted by the appropriate authority till date. The complaints were shocked and surprised to hear the same since at the time of applying for allotment of the unit, they had been informed that such sanction had already been obtained. Subsequently, on 16/08/2013 the complainants had entered into an agreement with the OPs where it was stated that the said project would be completed in the first phase within 30 months from the date of obtaining sanction. It was also stated that if, the handover of the project is delayed beyond the control of the developer, in that case a compensation @ 12% simple interest per annum would be paid by the developer for the period of delay and the purchaser is not free to cancel the agreement during the period of 18 months from the date of agreement. In spite of this agreement the O.Ps have failed to start construction of the said project. From the reliable source it came to the knowledge of the complainant that the OPs have abandoned the project. In such circumstances, the complainant issued a legal notice dated 12/03/2018 to O.P. No. 1 claiming refund of application money of Rs.9,12,968/- together with interest @ 18% per annum. The O.P. No. 1 on receiving the legal notice dated 12/03/2018 had called the complainants for a meeting on 20/03/2018 in their office where the situation was reviewed and the matter was discussed at length. In that meeting O.P. No. 1 had assured that as per agreement dated 16/08/2013 the earnest money would be refunded with the accrued interest within 31/03/2018. But the O.Ps had failed to keep their commitment. Therefore, the complainants have stated that O.Ps have engaged in unfair trade practice and as such complainants are entitled to receive sum of Rs.41,27,691/- from the OPs No. 1 & 2 which has been stated in para 17 of the petition of complaint. Finding no other alternative the complainants have filed the instant complaint praying for direction upon OPs to pay a sum of Rs. 41,27,691/- along with interest @ 18% per annum on the said sum along with cost of litigation.

Both the OPs appeared before this Commission and filed their written version. In their written version the OP denied all material allegation inter alia stated that the contesting OPs No.1 & 2 is a reputed company incorporated under the Companies Act, 1956. The O.P.No. 1, formerly known as Central Concrete & Allied Products and / or is a private limited company which is engaged in the business of construction and the OP No. 2 is also engaged in Civil Engineering and Building of complete construction or part thereof. The O.P. No. 1 is a development company engaged in providing real estate services to the subscriber at large in all over India and also in West Bengal. The Developer got building plan and sanction and commenced construction work of multi-storied building over the said land with the right and power to absolute sell, transfer, convey, alienate the constructed area by a separate unit/flat, garage to the intending purchasers. Being satisfied with all respect and all papers regarding the building and sanction plan, the complainants have been allotted of their respective flat upon some agreed consideration as described in the allotment letter dated 08/01/2011.

In their written version OPs have admitted that they have received Rs.9,12,968/- towards earnest money for purchase of a flat being No. 19E, Floor no. 19, Tower 1, being more or less approximately 1190 sq. ft. together with one covered car parking space in the project ‘Anandadhara’ in mouza Barhans, Fartabad, J.L. No. 47 & 49, Touzi No. 109, P.S. Sonarpur, Dist. South 24 Parganas. As per clause 14 of General Terms and Conditions it has been stated that if a portion of the entire scheme is discontinued then the Allottee(s), affected by such discontinuation, have no right of compensation from CCAP. CCAP will however refund all the money received from the Allottee(s). O.P. No. 1 & 2 have stated that there are no deliberate latches or negligence on their part since OPs 1 &2 have duly performed their duties to the complainants. The complainants are aware of FORCE MAJURE clause mentioned in the allotment letter and the GTC that none of the party 1 & 2 shall be regarded as in beach of any of the terms and conditions of the said agreement if any party no. 1 to 2 is prevented from performing or discharging its obligation because of the circumstances beyond its control such as delay for local syndicate problem with the help of some plot holders who intends to take money from the developer and all the project land is litigated property and the project work is pending for that. Due to aforesaid dispute installation of electric sub station was not possible. There were temporary or permanent interruption in the supply of material, disturbance created by local problem, non availability of workmen as per requirement.

Because of the said circumstances, the project was delayed which was in knowledge of the complainants. Due to non supply of electric power from the end of WBSEDCL it was next to impossible on the part of O.P. No. 1 to complete the procedure of handing over the possession to the intending purchaser. The O.Ps duly intimated the complainants through issuing letters explaining the cause of delay. In the instant case, the complainants suddenly changed their mind and came forward with demand on account of alleged interest on the amount paid by them. The O.Ps No. 1 & 2 are ready and willing to refund the consideration amount considering the facts and circumstances of the case. Hence the question of payment of any sum on account of mental agony, pain and unnecessary harassment as well as the demand of litigation cost do not have any leg to stand in the eye of law and is liable to be quashed, set aside and dismissed in limini by imposition of exemplary cost upon the complainants for filing the frivolous petition with absolute ulterior motive and sheer malafide intention to earn some unlawful gain to terminate the prestige of OPs by filing this clandestine complaint. The complainants do not have any prima facie case and the balance of convenience and inconvenience is absolutely against the interest of the complainant and same should be dismissed in limini by imposition of exemplary cost upon the complainant.

Hence the OPs have prayed for dismissal of the case in limini with exemplary cost.

Ld. Counsel for the complainants has submitted before this Commission that the Complainants are medical officers by profession and the O.P. No. 1 is a recognized name in the construction field competent in managing mega dimensional projects and O.P. No. 2 is also engaged in civil engineering and building of complete constructions or part thereof. O.P. No. 2 entered into a joint development agreement with the O.P. No. 1 under terms and conditions mutually agreed upon and contained therein and the name of the Housing project was tentatively titled as ‘Anandadhara’. On or about January 8, 2011 the complainants have jointly applied for allotment of a subject unit being flat no. 19E, floor No. 19 in Tower 1 before the O.P. No. 1 and they had paid a sum of Rs.9,12,968/- by way of three cheques. O.P. No. 1 received the same for booking of the unit in question. But till July, 2012 no construction has been commenced on the site for the reasons best known to them. Subsequently, complainants entered into an agreement dated 16/08/2013 in which it was stated that purchaser would not be free to cancel the agreement during the period of 18 months from the date of the agreement. Therefore, complainants could not cancel the agreement after knowing the fact that the O.Ps have not commenced the construction as per agreement. Therefore, the complainant, by filing this petition of complaint prayed for direction upon O.Ps for refund of earnest money of Rs.9,12,968/- along with interest on the aforesaid amount from 8/1/2011 till 31/5/2018 @ 18% p.a. amounting to Rs.12,14,723/- along with amount payable on account of damages to the tune of Rs.20,00,000/- totalling Rs.41,27,691/-.

Ld. Counsel for the OPs has submitted before this Commission that first of all the prayer of the complainants is infractuous since complainants have prayed for direction upon OPs to pay a sum of Rs.41,27,691/- . The Complainants have never paid such amount. The Complainants themselves have admitted that they have paid Rs. 9,12,968/- only , therefore, the prayer of Rs. 41,27,961/- becomes redundant . Complainants have not prayed for refund of Rs. 9,12,968/- which they have paid. Ld. Counsel for the OPs has also submitted that in the four corners of petition of complaint nowhere the complainants have mentioned the cause of action.

Ld. Counsel for the OPs have admitted that complainants have booked the flat in question on January 8, 2011. After expiry of 18 months on 28.07.2012 complainants had sent a letter dated 28.07.2012 to OP No. 1 praying for refund of application money for the flat in question with accumulated interest ( running page 21 with the petition of complaint as Annexure-C). The complainants have cancelled their booking in 2012 and in 2013 they have entered into an agreement for purchasing the flat in question. Therefore, the Ld. Counsel has stated if we consider the letter dated 28.07.2012 praying for refund of allotment money then we cannot rely upon the agreement for sale. As per agreement (Annexure D running page 22) the complainants have agreed with the terms and conditions of the agreement and, therefore, there is no negligent act or deficiencies of service on the part of the OPs. In course of argument, Ld. Advocate has also stated that refund of deposited amount alongwith compensation @ interest 12% p.a. is not correct since the clause under the heading ‘Undertaking’ was stated if the project is delayed beyond the period due to the reasons beyond the control of the developer a compensation of 12% simple interest would be paid for the delayed period. As per agreement, the OPs were agreed to deliver the unit in 2015, the Complaint case was filed in 2018. Therefore, the prayer for compensation for the delay in delivery of possession for the delayed period as stated in the petition of complaint is not sustainable.

Upon hearing the parties and on perusal of the record, particularly the evidence adduced by the parties, it is admitted fact that the complainants have booked a flat being No. 19E upon payment Rs.9,12,968/- by way of three cheques. It is also admitted fact that the complainants entered into a Preliminary Agreement with the OPs on 16.08.2013. In that agreement the clause ‘Mode of Payment’ has been stated. In that agreement it is stated that complainants have paid Rs. 9.12.968/- by way of three cheques against the provisional allotment as advance as part of the consideration. In that clause it is also written that 20% amount would be paid at the time of application. Therefore, as per agreement complainants have paid the amount as advance. Thereafter since no construction has been commenced by the OPs , no amount was paid by the complainants. After expiry of 18 months after the payment of advance amount complainants requested for refund before the OP No. 1. The parties have entered into the Preliminary Agreement in 2013 but till date no construction has been made by the OPs .

The argument on behalf of the Ld. Counsel for the OPs that the prayer of Rs. 41,27,691/- cannot be sustainable since this amount was not paid by the complainants. On perusal of the record we have noticed that in para 17 of the petition of complaint complainants have mentioned the calculation towards prayer of Rs. 41,27,691/-. The second argument on behalf of the OPs that the complainants have not stated the cause of action, cannot be considered also since the complainants have mentioned it in para 19 of the petition of complaint.

OPs did not inform the complainants the current position of the project and when they would hand over the flat of land and car parking space to the complainants. We do not find any reasonable ground which prevented the OPs. to finish the project and OPs. have not also revealed the current status of the project. Simply, we understand that the project is abandoned and OPs would not be able to hand over the same to the complainants. OPs had taken the plea in their written version that due to some local problem and for non-installation of electricity they could not start the project but on the other hand OPs have not filed any scrap of paper in support of their argument. OPs did not take initiative to sort out the problems as well as for obtaining for obtaining the sanction plan.

We are in the view that Allottees cannot be expected to keep on paying more and more money to Developer if they find that Developer is not in a position to complete the construction with stipulated period of time or even within reasonable period thereafter. In the instant case, the terms of contract are not adhered to by the Developer, therefore, the OPs are bound to refund the amount which was paid by the Complainants along with interest or compensation. If for any reason, the Developer is not at all in a position to offer the unit and car parking space, as agreed herein, the Developer may offer the purchasers an alternative property or refund the amount in full with interest. The Complainants cannot be waited for an indefinite period for flat and car parking space in question which was assured by the OPs.

The complainants paid Rs. 9,12,969/- to purchase the unit and car parking space but till date the project has not been started at all. The Complainants in their petition of complaint prayed for direction upon OPs to return the paid amount of Rs. 9,12,969/- along with interest [emailprotected] p.a. 08.11.2011 till 31.05.2018 and on account of damages alongwith interest thereon. There is no denial that the complainants paid Rs. 9,12,969/- and in course of argument, Ld. Advocate for the OPs has submitted that they are ready to willing to refund the amount. When the OPs have failed to keep their commitment , OPs. should have informed the complainants as early as possible and should have returned the paid am

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ount alongwith interest to the complainants, otherwise complainants would not have taken the recourse of law. The OPs. cannot sit idle for so long period. Therefore, we find that there is gross deficiency in service and unfair trade practice on the part of OPs. and as such the complainants arte entitled to get principal amount with adequate interest. Now the question is what would be the amount of compensation payable by the OPs to the complainants. In the instant case some problems might have cropped up for commencement of the project but OPs have failed to show any scrap of paper which can reveal that some measures were taken by them to solve those problem. We think, in the present situation, the order upon the OPs to pay the compensation in the form of the interest @ 8% upon the deposited amount by the complainant would be appropriate. Accordingly the complaint succeeds. As a result the petition of complaint succeeds. Hence, Ordered That the complaint case being no. CC/410/2018 is allowed on contest against OPs No. 1 & 2 with cost. The OPs are directed to refund Rs.9,12,968/-(Rupees nine lakh twelve thousand nine hundred sixty-eight) only to the Complainants alongwith simple interest @ 8% p.a. in the form compensation of from the date of payment by the complainants i.e. 08.01.2011 till the date of realization within two months from the date of this order, in default, the Complainants are at liberty to put the decree into execution. The OPs are also directed to pay litigation cost of Rs. 10,000/- (Rupees ten thousand) only to the complainants within the aforesaid stipulated period. The complaint case being No. CC/410/2018 is disposed of accordingly.
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