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Universal Projects v/s Prasanta Kumar Basak

Company & Directors' Information:- S KUMAR PROJECTS PRIVATE LIMITED [Active] CIN = U70101WB2009PTC134015

Company & Directors' Information:- UNIVERSAL CORPORATION LIMITED [Active] CIN = U74899DL2000PLC103817

Company & Directors' Information:- M. K. UNIVERSAL PRIVATE LIMITED [Active] CIN = U70109DL2006PTC154153

Company & Directors' Information:- UNIVERSAL INDIA LTD [Amalgamated] CIN = U17222WB1990PLC048613

Company & Directors' Information:- UNIVERSAL E P PRIVATE LIMITED [Active] CIN = U74899DL1982PTC013400

Company & Directors' Information:- A G UNIVERSAL PRIVATE LIMITED [Active] CIN = U25200DL2008PTC178400

Company & Directors' Information:- R R UNIVERSAL PRIVATE LIMITED [Active] CIN = U52100MH2013PTC243592

Company & Directors' Information:- UNIVERSAL PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74999MH1980PTC023593

Company & Directors' Information:- UNIVERSAL PRIVATE LIMITED [Active] CIN = U45202PB1984PTC001388

Company & Directors' Information:- K R UNIVERSAL PRIVATE LIMITED [Active] CIN = U74999HR2014PTC052725

Company & Directors' Information:- UNIVERSAL PVT LTD [Not available for efiling] CIN = U51909PB1948PTC001338

Company & Directors' Information:- P. BASAK & CO PVT LTD [Strike Off] CIN = U35921WB1955PTC022298

Company & Directors' Information:- UNIVERSAL CORPORATION LIMITED [Strike Off] CIN = U99999MH9999PLC007536

    Revision Petition No. 52 of 2020

    Decided On, 17 February 2020

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Appearing Parties: Rimpy Mukherjee, Advocate.

Judgment Text

Present Revision Petition is filed by the Petitioner under Section 21 (b) of the Consumer Protection Act, 1986 against the order passed by West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as "the State Commission") in First Appeal No.A/227/2017 dated 23.10.2019.

2. Case of the Complainant/Respondent is that he entered into an agreement with the Petitioner/Opposite Party on 30.09.2014 for purchase of Flat No.304 at a cost of Rs.15,05,000/-. He also paid an advance of Rs.5 lakhs. The Petitioner assured the Complainant to complete construction of the flat and hand over the same within eight months from the date of execution of the agreement, after receipt of the balance consideration from the Complainant. Having not got possession within the agree time frame, the Respondent wrote several letters to the Petitioner, but with no response. Later, on a site visit, he found that the work was not completed as per the agreed specification and therefore the Complainant was compelled to file a Complaint before the District Forum.

3. The Opposite Party filed written version and denied all the allegations made in the Complaint. It was contended that as per the agreement the Complainant was to pay Rs.15,05,000/- towards consideration of the flat, but he paid Rs.5 lakhs only and failed to make payment of the balance amount.

4. After hearing Learned Counsels for the Parties and going through the record, the District Forum held that the Opposite Party was guilty of deficiency in service in not handing over the flat within the stipulated time. District Forum allowed the Complaint and directed the Opposite party as follows: -

"The O.P. is directed to pay Rs.4,80,000/-. And, for compensation as well as cost, Rs.3,000/- totalling Rs.4,83,000/- (Four Lakh Eighty Three Thousand) i.e. by 14.12.16, to the complainant, failing which the amount of Rs.4,80,000/- shall carry the interest of 4% thereon from 14.12.16. For each day of default, after 14.12.16 the O.P. shall have to pay Rs.50/- as punitive damage which shall be deposited before the State Welfare Fund."

5. Aggrieved by the order of the District Forum, the Opposite Party preferred an Appeal before the State Commission. The State Commission concurred with the finding of the District Forum that there was deficiency in service on the part of the Opposite Party in not handing over possession of the flat within stipulated time. It, however, also found non- compliance of the conditions on the part of the Complainant. The State Commission therefore modified the order of the District Forum with following directions: -

"Since the complainant did not comply with the conditions as enumerated in the agreement he cannot claim equitable relief rather in the given facts and circumstances of the case he would be entitled to refund of earnest money paid to the Developer. Hence we dispose of the appeal by directing the OP herein to refund the amount of Rs.5,00,000/- (Rupees five lakh) without any deduction since the OP could not complete the flat within the stipulated time. Accordingly we dispose of the appeal by directing the OP to refund the said amount (Rs.5,00,000-) to the complainant within 60 (sixty) days from the date of the order, but the other directions in the order dated 09-11-2016 including direction for payment of cost, interest or punitive damages etc. are set aside. Parties to bear their respective costs of Appeal. The appeal is thus allowed in part for the finality of litigation."

6. Not being satisfied with the order of the State Commission, the Opposite Party filed the instant Revision Petition.

7. Heard the Learned Counsel for the Petitioner and carefully perused the record. Learned Counsel for the Petitioner submitted that the Complainant was offered the flat, vide letter dated 11.11.2015. The Respondent, however, instead of taking possession of the flat and registering the same after making payment of the balance consideration, filed a Complaint simply to extort money from the Petitioner.

8. Agreement for sale was executed on 30.09.2014. The Respondent had paid Rs.5 lakhs out of Rs.15,05,000/- to the Petitioner. The flat was to be delivered within eight months from the date of execution of the agreement. However, according to the Petitioner the flat was offered to the Respondent, vide letter dated 11.11.2015 i.e. after more than 13 months which itself amounts to deficiency in service. The District Forum held that the Petitioner has resorted to unfair trade practice and there was deficiency in service on the part of the Petitioner. The State Commission modified the order of the District Forum as the Complainant had paid Rs.5 lakhs only towards earnest money. State Commission rightly held that while construction was not completed within the stipulated time, the Complainant also had paid only Rs.5 lakhs towards earnest money and did not pay the balance consideration. Both the parties were therefore not in full compliance with the terms & conditions of the agreement between them. The appeal was allowed in part. The State Commission, therefore disposed of the Appeal directing the Petitioner to refund the amount of Rs.5 lakhs without deduction to the Complainant within 60 days from the date of the order and set aside the rest directions of the District Forum. Hon'ble Supreme Court also held in Pionee

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r Urban Land & Infrastructure Ltd. versus Govindan Raghavan, Geetu Gidwani Verma & Anr., 2019 2 CPJ 34(SC) that if the project is not completed and possession is not handed over even with reasonable delay, an allottee had a right to seek refund and he cannot be compelled to take possession after a huge delay in handing over the possession. 9. From the foregoing discussion, I find no illegality or infirmity in the impugned order warranting interference in exercise of revisional jurisdiction under Section 21 (b) of the Act. The revision petition has no merit and the same is dismissed.