SHRI REYAZUDDIN KHAN,MEMBER
This is an application U/s.35 of the C.P. Act, 2019. The fact of the case in brief is that the Complainants was looking for residential flat and at the same time the complainant came in contact with the OPs and expressed their willingness to purchase a residential apartment measuring 650 sq.ft super built up area in the Block-05 along with car parking at the demarcated space on the front side in the Zone named “Smart Home Residency” in the project of OPs called”Green Tech City” situated under Rajarhat,P.S ,Chandpur Panchayat,Bidhannagar (SaltLake)District,24-Parganas(North) West Bengal.The complainant paid the booking amount of Rs,1,00,000/ (Rupees One Lakh)only along with S.T of Rs,3090/-and the OPs issued an allotment letter dated 23.08.2013 in favour of the complainant at the total consideration amount of Rs,20,24,500/ along with other charges & club Membership.The said deal was executed by an agreement for sale dated 23.09.2013.The complainant paid Rs,4,17,411(Rupees Four Lakh Seventeen Thousand Four hundred Eleven)only inclusive of booking amount out of total consideration against valid payment receipt to the OPs.The complainant stated that as per the Agreement for sale dated 23.09.2013,the construction of schedule II Unit and handover of possession thereof to the complainant within 24 months from the effective date.But the OPs miserably failed to fulfill their part of obligation in completion of the project. The complainant further stated that a tripartite agreement between complainant,OP1 and OP4 was also executed to purchase the said property from the Proforma OP4 (Central Bank of India) on 24.03.2014 and the OP4 sanctioned Rs,15,23,000/ (Rupees Fifteen lakh Twenty three thousand)only.OP4 disbursed only Rs,4,11,157 (Rupees Four Lakh Eleven thousand one hundred fifty seven)only out of the total sanctioned amount to the OP1.Later,OP4 stopped payment of any further installment .The amount paid to the OP1 both by the complainant and from Bank a total of Rs,8,28,568 (Rupees Eight Lakh Twenty Eight thousand Five hundred sixty eight)only.OP4 Bank exerting pressure on the complainant and demanding overdue amounts along with interest on the amount paid to OP1 as per tripartite agreement and forcing the complainant for early registration of flat .
After assessing the conduct of the OPs regarding completion of the said flat the complainant left no option but to cancel all the agreements for purchasing the said Unit and asked for refund of the paid money with interest by issuing letter dated 04.12.2021 to the OP1 and after that sent several reminders. After receiving the termination letter the OP1 raised illegal demand of Rs,4,60,068/ through a letter dated 14.01.2022.Further the complainant issued legal notice dated 12.04.2022 upon the OPs and demanded for refund the deposited amount but the OPs not responded to complainant’s legal notice.It is a failure on the part of the OPs and a clear case of deficiency in service and negligency.The complainant suffered mental agony and harassment which establishes unfair trade practice Finding no other option the complainant knock the door of the commission to get justice and prayed as mentioned in complaint petition.`
Notices have been served to OPs and the same was delivered to them way back on 07.09.2022. No WV was filed by OP 1 to 3 to contest the case as the stipulated time to file WV have already been elapsed and the case do proceeded ex-parte against the OP 1 to 3.
OP4 filed the WV on 20.10.2022 to contest the case.OP4 stated that the allegations contained in the complaint is absolutely concocted, fabricated facts. The dispute is primarily towards constructions of building blocks or suit flat in which the OP4,Bank is in no way connected or involved. The Bank sanctioned the home loan of Rs,15,23,000/ vide loan account no.3333609025.Out of this money the Bank disbursed a sum of Rs,4,24,776/ while EMI was fixed at Rs,14,950/.OP further stated that whatever dispute or deficiency of service, if any lies against the developers(OP1 to 3) only and as such no order can be passed against the OP4 nor any specific relief is sought for against him.The complaint in that context having no merit is liable for dismissal as far as the OP4 is concerned.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs is deficient in rendering proper service to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainants are entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.Complainant has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by the OP4.
On perusal of the pleadings it would reveal that on 23.08.2013 complainant received an allotment letter after payment of Rs,1,00,000/ only against the booking of one residential Unit No. “5N on 5th floor in Block No.05 in Smart Home Residency-1 with one car parking, total measuring 650 sq.ft (Super builtup area)of Green Tech City” situated under Rajarhat,P.S ,Chandpur Panchayat,Bidhannagar (SaltLake)District,24-Parganas(North) West Bengal. The overwhelming evidences on record further goes to show that the super built-up area of residential unit measuring 650sq.ft.and the cost of unit and car parking space Rs,20,24,500.The complainant paid Rs,4,17,411 inclusive of booking amount out of total consideration.
It remains undisputed that OP1 issued allotment letter dated 23.08.2013 in respect of
the said flat. It should also not be out of place to mention here that there is a payment schedule in the allotment letter.The materials on record make it clear that the complainant had paid of Rs,4,11,157/-( Rupees Four Lakh Eleven Thousand One hundred Fifty Seven) only through OP4 Bank loan disbursement against the subject unit and Rs, Rs,4,17,411 through advance payment,so total payment made by the complainant is Rs, Rs,8,28,568 (Rupees Eight Lakh Twenty Eight thousand Five hundred sixty eight)only
It is true that OP1 failed to construct the “Smart Home Residency-1” project till the date of filling the instant consumer case.It is well settled that after making payment of Rs,8,28,568 (Rupees Eight Lakh Twenty Eight thousand Five hundred sixty eight)only
as a advance payment of the consideration amount,the purchaser can not wait indefinitely for having a roof over his head. In the perspective, when the OPs have failed to complete the project this itself amounts to deficiency in service.
The OPs did not deny regarding issuance of allotment letter dated 23.08.2013 and also receiving payment of Rs,8,28,568 (Rupees Eight Lakh Twenty Eight thousand Five hundred sixty eight)only as booking money from the complainant.Thus,the complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act.
On evaluation of materials on record it is quite evident that the complainant being the “Consumer” hired the services of the OP1 for construction of flat and OP1 has failed to construct the project and thereby deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
In this regard a Judgement of the Hon’ble Delhi State Consumer Disputes Redressal Commission under reference 2022(2) CPR 137(Del.) in the matter Mrs.Jasveen Kaur v. Parsvnath Developers Ltd., Complaint Case No.1618 of 2016 decided on 05.05.2022 is also found relevant to the present context. The Hon’ble SCDRC has been pleased to observe in Para 34 of the said Judgement “ A failure of the Developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service.”
Keeping in view of the above cited Judgments and based on the fact and circumstances of the present case,we are of the considered opinion that the Complainants have established the case against the OP1 to 3
.No privity exists between the complainant and the OP4 ,Complainant has no occasion to implead OP4 as a party to this case.Thus,instant consumer case against the OP4 is dismissed .
In view of above,the complainant is disposed of on Ex-parte against the OP1 to 3 and contested against OP4 with the following direction:-
Hence,
Ordered
i).The OP 1 to 3 are directed jointly or severally to refund the paid booking amount of Rs,8,28,568 (Rupees Eight Lakh Twenty Eight thousand Five hundred sixty eight)only with of simple interest @9% P.A in favour of the complainant from the date of issuance of allotment letter( i.e, 23.08.2013) till its realization.
ii) The OPs are further directed to pay jointly or severally a sum of Rs,20,000/ (Twenty Thousand)only as compensation for unfair trade practice, harassment and mental agony with a litigation cost of Rs,5,000/-
Complainant put the order into execution, if the OPs transgresses to comply the order according to Consumer Protection Act, 2019 after the expiry of 60 days.
