HON'BLE MR. KAMAL DE PRESIDING MEMBER
Order No. : 19
Date : 14.08.2019
The case of the complainant, in short, is that the complainant applied for the Flat to the OPs vide Application No. 0044 and considering the said application of the complainant, OP No. 2 provisionally allotted apartment No.: 9A, Tower 5, measuring 1460 Sq. ft. along with a car parking space at Taraang, Shristinagar at New Asansol vide provisional allotted letter No.: IP/5 – 9A/0070 dated 26th September, 2011 along with proposed payment schedule for the allotted flat with the printed terms and conditions by demanding total cost of Rs. 32,57,510/- and accepting Application Money amounting to Rs. 1,51,475/-. Amount payable on Allotment was Rs.3,89,651/- and the complainant paid application money amounting to Rs. 1,51,475.
The Complaint Case is that the complainant made payment as per schedule but the OP did not hand over the possession of the apartment within thirty (30) months from the date of allotment i.e. on and from 26.09.2011 as per the agreed condition. It is stated that the OP did not hand over the possession within 25.02.2014 that is the specified period and hence, the OPs are liable to pay Rs. 6000/- p.m. as compensation to the complainant as per Clause No. 13 of the terms and conditions. OP No. 2 on 18.08.2017 sent a letter of intimation about the readiness of the unit for possession with a request for paying the balance amount of Rs. 7,09,457/- without making any adjustment of the payable compensation for the delay of thirty-six (36) months for handing over possession and in violation of Clause 13 of the terms and conditions.
It is further stated that the complainant had parted with a payment of Rs. 31,55,394/- through A/c payee cheque in favour of OPs. The complainant on several occasions requested the OPs for proper adjustment of the compensation for forty-eight (48) months delay till date for giving possession but in vain. The complainant had alleged that OPs has indulged in unfair trade practice. The OPs also alleged that the complainant has suffered total loss of Rs. 31,55,394/-. It is also stated that the complainant has suffered mental anxiety and pain. The cause of action arose on and from 18.08.2017 when the OPs unlawfully demanded Rs. 7,09,457/- from the complainant in utter violation of Clause 14 of the terms and conditions in the agreement. The complainant has also alleged the deficiency of service against the OPs. Hence, the complainant filed this case against the OPs.
OPs have contested the case in filing written version contending inter alia that the complainant has no cause of action for instituting the instant case and the case is not maintainable in C. P. Act. It is stated that there has been no breach of service on the part of the OPs. It is also alleged that the complainant has acted in breach of the contract and has moved to this Commission with clean hands. It is stated by the OPs that Op No. 2 started developing plots/ developed plots with Bungalows, Apartments within Shristinagar, Asansol.
The complainant after inspecting the brochures, application form containing terms and conditions and being satisfied in all respect and with relevant papers regarding the apartments and common other facilities of Tower 5, Taraang expressed his desire to purchase Apartment No.9A, Tower 5, at Taraang, Shristinagar and accordingly made an application before the OP No. 2. The OP No. 2 after receiving such application vide letter No.: IP/5-9A/0070 by a provisional allotment letter dated 26.09.2011 allotted the said apartment No. 9A, measuring 1460 sq. ft. on the 9th floor of Tower 5 at Taraang, Shristinagar on terms and conditions mentioned therein.
Work of the project progressed satisfactorily, considering the severe hinderance it has faced from Asansol Durgapur Development Authority. The complainant was well aware of the fact that the construction of the apartment is directly linked to the payment of instalment to be paid by the complainant. But the complainant failed to adhere to the terms and conditions of the allotment. The complainant was required to make a payment of Rs. 3,89,652/- on allotment i.e on 11.10.2011. but the complainant’s caused delay of 140 days in making part payment amount to Rs. 3,14,652/- out of payable allotment money including service tax and payment is made by cheque dated 29.09.2012. Similarly, the complainant was required to pay the sum of Rs. 3,87,311/- being first instalment on completion of foundation i.e. on 24.02.2012 but the complainant caused delay of 644 days in making part payment only amounting to Rs.3,12,311/-. Thus, the complainant over and over again caused delay in making payment of instalment. it is also stated that Asansol Durgapur Development Authority being the owner of the land was supposed to provide all necessary support by issuing various No Objection Certificates, and for obtaining various permissions, approvals, sanctions but there was lack of cooperation on the part of Asansol Durgapur Development Authority which was beyond the control of OP No. 2 and such non-cooperation has resulted in an Arbitration proceeding presided by Hon’ble Justice S. P. Talukdar. Finally, the award was passed in favour of OP No. 2.
The contesting OPs have also stated that there was lack of labour forces, high inflation level, enhancing price of petrol and diesel and all these created hinderance and delay in the project and there was no negligence on the part of OP No. 2 in the project and delay occurred due to reasons beyond the control of OP No. 2 and the representative of OP No. 2 have informed the complainant about such facts and with reference to the Clause 9 of development agreement . The OPs have alleged that the complainant has filed the instant case for wrongful gain suppressing the material facts and that there are reciprocal obligations on the part of both OP 2 and complainant.
It is further submitted that after the unit No. 9A, Tower 5 at Taraang was ready for possession. OPs requested the complainant to take possession by paying the final amount vide letter dated 18/08/2017 but the complainant had not taken the possession of the apartment by paying the final payable bills.
Moreover, the complainant caused delay in making part payment on various occasions and from time to time. It is denied that the OP has indulged in unfair trade practice or the complainant has suffered loss for mental agony and pain and sufferings. It is alleged that complainant had not come with the hands and has fabricated the facts as well as suppressed the facts. The Ops have prayed for dismissal of the case.
Upon pleadings of the parties the following issues have been failed.
- Is the case maintainable in its present form of prayer?
- Whether the OPs have been deficient in providing service to the complainant?
- Whether OPs indulged in unfair trade practice?
- Whether complainant is entitled to get decree as prayed for?
Issue No. 1
Ld. Advocates appearing for the respective sides have been not advanced any argument on the maintainability of the case. Nothing specific was urged by either of the sides. It appears that the complainant is the intending purchaser of the Flat in question and the OPs are the service provider being engaged in housing construction and promotion business. OP is a reputed joint venture company incorporated under the Companies Act, 1956 and is a joint enterprise of Asansol Durgapur Development Authority and Shristi Infrastrcture Development Corporation Ltd. and develop the integrated township under the name and style of Shristinagar, Asansol. The complainant is a consumer as understood within the meaning of Consumer Protection Act, 1986 and the OPs are service providers. This commission has also its territorial jurisdiction as well as pecuniary jurisdiction in trying the case. The case as such is very well maintainable as per Consumer Protection Act, 1986. The point gets decided in favour of the complainant.
Issue Nos. 2, 3 & 4
We have perused the documents on record, i.e. provisional Allotment Cum-Agreement, including payment schedule and payment making schedule, terms and conditions letters of the complainant addressed to the OP dated 10.09.2017, 23.09.2017 and 06.12.2017, the reply letter of the OPs addressed to the complainant dated 13.12.2017 letters of the complainant addressed to the opposite parties, dated 18.04.2018, complaint letter dated 25.06.2018 submitted from the side of the complainant before C.A. & FBP Paschim Bardhhaman.
We have also travelled over the letters and documents, payments schedule, provisional allotment completion certificate, Payment schedule along with payment dates, copy of letter dated 18/08/2017 for handing over the allotted Flat and other documents as filed from the side of the OPs.
It appears that the complainant applied for a flat to OP No. 1 vide Application No. 0044 and accordingly considering the application of the complainant, the OP No. 2 provisionally allotted the apartment No. 9A, Tower 5, measuring 1460 sq. ft. along with car parking space at Taraang, Shristinagar, the New Asansol on vide provisional allotment letter dated 26/09/2011 along with proposed schedule for the flat with the terms and conditions at a total cost of Rs. 32,57,510/- and accepting application money. As per the terms and conditions, the opposite parties, have to deliver possession of the allotted apartment within 30 months from the date of allotment i.e. on and from 26/09/2011.
The case of the complainant is that the OP has not handed over the Apartment within stipulated period that is within 25/02/2014. As per the terms and conditions in clause 13, the OPs are liable to pay Rs 6,000/- p.m. as compensation to the complainant. OP No. 2 sent a letter of intimation for handing over the flat in question vide letter dated 18/08/2017 about the readiness of the unit for possession with a request for paying the balance amount of Rs. 7,09,457/- without making any adjustment of the payable compensation for the delay of 36 months in handing over possession in violation of Clause 13 of the agreed terms and conditions though the complainant has parted with Rs 31,55,394/- to A/c cheque on different dates.
On the other hand, it is argued from the side of OPs that the complainant did not make all payments within time. It is stated that the Complainant was required to make payment of a sum of Rs. 3,89,652/- on allotment i.e. on 11/10/2011. The complainant, however caused delay of 140 number of days in making part payment only amounting to Rs.3,14,652/- out of payable allotment money including service tax. Payment was ultimately made by cheque dated 29/09/2012. Similarly, the complainant was required to make payment of a sum of Rs. 3,87,311/- being first instalment on completion of foundation i.e. on 24/02/2012. The complainant, however caused delay of 644 number of days in making part payment only amounting to Rs.3,12,311/- out of the payable money including service tax. Payment was ultimately made by cheque dated 30/11/2013. Similarly, the complainant had delayed in making payments of remaining instalments. Complainant is well aware of the fact as per general terms and conditions the complainant is liable to pay interest @ 18 % for delayed payment and the OP no. 2 reserves the right to terminate the allotment for any delay beyond 2 months. OP No. 2 in all its demand has clearly stated that any delay in making payment after stipulated period will attract interest.
The backdrop of the present controversy as raised by the parties is that there has been considerable delay for more than for about 36 (thirty six) months for handing over possession in violation of the term of Clause 13 of the specified terms and conditions as canvassed from the side of the complainant and on the contrary, the complainant did not make all payments within time and caused delay of 644 days in paying the instalments as per the terms and conditions of the payment schedule and complainant is liable to pay interest @ 18% to the OPs as reiterated from the side of the OP.
We have gone through all the documents on record and the general terms and conditions, payment schedule with payment details and late payments etc. As per the terms and condition, the OP failed to deliver possession of the Flat in question within 36 months from the date of allotment i.e. on and from 26.09.2011. It appears that the OP could not hand over the possession of the Apartment within the specified period i.e. within 25.02.2014. In such circumstances it is argued from the side of the complainant that the OPs are liable to pay Rs 6,000/- p.m. as compensation to the complainant. (Clause 13 of terms and condition with provisional allotment letter is referred to.)
Ld. Lawyer appearing for the OP draws our attention to Clause 12 of the terms and conditions. It is stated that the stipulation of delivery of possession is subject to force on majeure which includes delay on account of civil commotion, or by reason of war, or enemy action, or earth quack, or any act of God, delay in certain decision/clearances from Statutory Bodies, or any notice , order, rules or notification of the Government or any other public or competent authority, or for any other reason beyond the control of the company and in any of the aforesaid events, company shall be entitled to a reasonable corresponding extension of time for delivery of possession of the said apartment.
It appears from the payment details that the complainant caused delay in making payment of instalment from time to time. In fact, amount payable on allotment was Rs. 3,89,651/- but the complainant pays Rs. 1,51,475/- on the date of allotment as application money. Similarly, the complainant from time to time made delay in making payment of the instalments though OP No. 2 never waived to charge the interest for delayed payments. On the other hand, OP was supposed to make delivery of the possession within 36 months from the date of the agreement as per clause 11 of the date of allotment. But the OPs could make ready the flat on 18.08.2017 for handing over possession. OP became delayed of 36 months of handing over the possession and as per stipulation in Clause 13 of the terms and conditions of allotment letter. OP is liable to pay compensation to the allottee @ Rs. 6,000/- p.m. It is argued from the side of the OPs that the cause of delay to the date was labour problem, high inflation and Arbitration proceeding pending in between OP and Asansol Durgapur Development Authority. It is also stated that there was lack of co-operation on the part of Asansol Durgapur Development Authority with regard to issuance of no objection certificate, and for obtaining various permission, provisional and sanctions and all these matter were beyond the control of OP No. 2 and such non-cooperation had resulted in an arbitration proceeding decided by Hon’ble Justice, S. P. Talukdar (Retired) and final order passed in favour of OP No. 2. OP has also produced the copy of arbitration award passed by Hon’ble Justice S.P. Talukdar at the time of hearing.
We find that there are reciprocal lapses on the part of both the OP No. 2 as well as complainant. Moreover, we find from the letter dated 11.01.2018 filed from the side of the complainant that partial occupancy certificate was issued by the Asansol Municipal Corporation to the OP on the basis of sanction of building plan vide building promo No. 833/1-3/SP/G & 834/1-10/BP/G dated 25.03.2013 when the site was inspected with reference to the provision of the building rule under West Bengal Municipal Act, 1993. So, it is crystal clear that OP got sanction of the plan on 25.03.2013. So, we find that there was delay of one year and six months approx. in obtaining the permission. Whereas the date of allotment was 26.09.2011. However, we find that an Arbitration Proceeding was going and Arbitration Award was passed by Hon’ble justice S.P. Talukdar on 5th October 2016. As there are reciprocal lapses on both sides, we think that the complainant cannot claim Rs. 6,000/- p.m. as compensation.
Moreover, on the contrary , OPs cannot claim any interest for the late payment of instalment. We find that the OP on 18.08.2017 i.e. after 36 months from the date of allotment intimated to the complainant vide letter dated 18.08.2017 about the readiness of the unit for possession with a request for paying the balance amount of Rs. 7,09,457/- without making any adjustment of the payable compensation for the delay of 36 months for handing over the possession.
We find that the Flat in question was not even ready on 25.02.2014 i.e. on the ate of expiry of the specified period. OP could not make the flat in question ready even within the stipulated period and he can not claim interest for paying the amount of Rs. 7,09,457/- as interest along with the balance principal and without making any adjustment payable compensation for the delay of 36 months for handing over possession. OP cannot claim interest. Had the flat been ready OP could claim interest but OP could not make the flat ready for reasons for which complainant is not liable in any manner. On the contrary the complainant cannot also claim adjustment of the payable compensation for the delay of 36 months as the complainant also made delay in making payment of instalment on different dates.
We, however, observe with anxiety that the developers have been causing delay in delivery of flats to the allottees under some pretext or other. In the instant case, save and excepting the copy of the order of Arbitration Award passed by the Hon’ble Justice S. P. Talukdar, no other documents or correspondence causing hinderance of work are produced from the side of the OP. Moreover, Clause 12 of the terms and conditions of the allotment letter does not specifically speak about delay on account of suits, cases or Court Orders or regarding Arbitration proceeding, etc. We make it clear as a logical follow up of the discussion as made in earlier paragraph that the complainant cannot claim Rs. 6,000/- p.m. as compensation. On the contrary, OPs cannot claim any interest as against the late payment made by the complainant from time to time.
We, however, find that the complainant has run from pillar to post and back to pillar in getting delivery of the possession of the Flat in question. Default in payment of instalment is alleged by the OP. But Flat in question could not be completed or made ready by the time demand was raised. There was no construction of Flat in question within the stipulated period and OP cannot take advantage of delay, moreover, OP accepted delayed payment and in accepting payment at a belated stage, OP presumably condoned the same. We find that construction was not also progressed as per schedule. The fact of abnormal delay in completion of Flat in question cannot be overlooked while deciding the case. We cannot also overlook that the complainant suffered tremendous mental pain and agony as such. Considering all aspects, we think that complainant is entitled to compensation as such.
These issuers are thus decided accordingly.
Hence,
ORDER
That the instant case be and the same is allowed on contest against the OPs.
OPs 1 and 2 are jointly and severally directed to make delivery of possession of the subject flat as per the Agreement dated 26th September, 2011 to the complainant and also to execute and register Deed of Conveyance before the Registering Authority within 60 days from the date of this order receiving the balance principal amount from the complainant without any interest and the complainant is to pay the balance principal consideration amount to the OPs meanwhile. If the OPs fail to hand over delivery of possession and execute the Sale Deed by registering it within stipulated period, in that case the complainant shall be entitled to take recourse to execution case in a separate proceeding for getting delivery of possession, execution and registration of the Sale Deed by this Commission and for this purpose complainant shall have to bear all costs and service charges for execution and registration charges of the Sale Deed and also to pay the charges for deputing an officer of this Commission on behalf of complainant for execution and registration of the Sale Deed on behalf of the OPs.
OPs 1 and 2 are also jointly and severally directed to pay an amount of Rs. 1,50,000/- as compensation to the complainant for causing harassment and mental pain and agony along with litigation cost of Rs. 20,000/- within the said stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution U/S. 25 read with Sec. 27 of the C.P. Act and in that case OPs shall be liable to pay punitive damage @ 5,000/- per month to the complainant till full and final satisfaction of the decree.
Let a free copy of this judgement be supplied to the parties free of cost.
