SHYAMAL KUMAR GHOSH, MEMBER

The instant  CC case has been filed by the complainant against the Opposite parties praying for  certain reliefs which are reproduced as follows :-

1. “To refund the amount  paid in part  consideration money of Rs 6,00,000/- to the complainant with 18% interest.
2. To pay Rs. 6,00,000/- to the complainant as compensation for causing mental sufferings and harassment.
3. To pay Rs. 15,000/- to the complainant towards litigation cost.
4. Cost and penalty.
5. And pass such other order or orders which your honour deem fit and proper for the ends of justice.

       For such act of kindness  your petition as in duty bound shall ever pray.”

The brief fact of the case is that  being  a developer /OP No. 1   has carried on a business under trade name and style of M/S Sushovan Construction within the jurisdiction of this Commission. The Opposite Parties being No. 2 to 5 are represented as the landowners  and by virtue of registered General Power of Attorney dated 26.03.2012  all the landowners  have appointed  the OP No. 1 as a constituted attorney  and to that effect the  aforesaid General Power of Attorney has been executed and  registered in the office of DSR IV at Alipore, being deed no. 00161 for the year , 2012. The complainant  is an intended purchaser  of self-contained flat on the 2^nd floor measuring more or less 700- 750 sq.ft. super built up area consisting of  two bedrooms, one  dining room,  one kitchen , one toilet  and one balcony  belonging to the developer’s allocation at a total consideration amount of Rs. 21,00,000/-  alongwith  undivided  and impartible share of land  as well as all facilities  and amenities and to that effect the complainant has entered into an agreement for sale  with the developer  on 08.09.2013. 

The complainant has paid Rs. 2,50,000/- in cash on 23.04.2013 and Rs. 3,50,000/- in cash as well as cheque  on 03.05.2013 i.e. total amount of Rs. 6,00,000/- as part consideration to the OP No. 1/developer and to that effect the OP No. 1/developer has issued two money receipts in favour of the complainant.  The rest consideration amount would be payable as per  schedule of the agreement for sale  dated 08.09.2013.  The fact remains that  the delivery of the possession of the aforesaid flat  was supposed to be handed over  within the stipulated period of 18 months  from the date of execution of the agreement. Thereafter, the developer/OP No. 1 has expressed his inability to complete the aforesaid construction of the flat with the stipulated period of time and to that effect both the parties ( complainant and developer)  have entered into a supplementary agreement for sale on 10.12.2015  extending the further period of 18 (eighteen) months from 10.12.2015 assuring  full completion of the building and delivery of the possession of the flat within 18 months.  By executing the aforesaid supplementary agreement, it has been settled that the earlier payment of Rs. 6,00,000/-  vide agreement for sale dated 08.09.2013  would be treated as a part consideration in respect  of supplementary agreement dated 10.12.2015.  Unfortunately, said time was over. No possession of the said flat in habitable condition has been delivered to the complainant within the stipulated period of time.  On several occasion the complainant has requested the  OP No. 1/developer to handover the same but to no effect. Several correspondence by way of sending letters  have been made between the parties but ultimately  no proper relief   by way of refunding  the amount of  Rs. 6,00,000/- with interest has been provided to the complainant causing clear gross negligence and deficiency in service on the part of  OP No. 1/developer.  

 Hence, the case before this Commission.

The OP No. 1 contested this case by filing written version stating inter alia that  the complainant has suffered no loss alleged  and all stories of mental tension and agony  inflicted upon the complainant  has no basis at all.  A false and concocted story  has been created in order to gain  financial benefit alongwith the interest from the end of OP No. 1/developer.  There is no such negligence and deficiency in service on the part of OP No. 1/developer and accordingly OP No. 1 has prayed for dismissal of the instant consumer case with exemplary cost.

The order no. 6 dated 13.06.2019 clearly reveals that no written version has been filed by the OPs No. 2 to 5 and as such the case has been fixed for exparte hearing against them.  

The Ld. Counsel appearing for the complainant argued that the complainant has entered into an agreement for sale on 08.09.2013 with the developer/OP No. 1 for purchasing a self-contained flat situated at the 2^nd floor measuring more or less 700-750 sq.ft.  at a total consideration amount of Rs 21,00,000/- with an assurance to handover the    possession of the flat in habitable condition within 18 months from the execution of the agreement dated 08.09.2013. On different dates and occasions the complainant has made payment of Rs. 6,00,000/- to the OP No. 1/developer as  a part consideration  and the complainant  has promised to pay the rest amount as per payment schedule of the agreement dated 08.09.2013.  Ld. Counsel has further submitted that after execution of the  aforesaid agreement for sale  the OP No. 1/developer  has expressed his inability  to handover  the possession of the flat to the complainant within the stipulated period of time  and to that effect another supplementary agreement for sale dated  10.12.2015  has been executed between the parties.  By virtue of the  said agreement   it has been settled that the  consideration amount of Rs. 6,00,000/-  already paid by the complainant would be treated as consideration amount in respect of the supplementary agreement dated 10.12.2015.  After expiry of stipulated period of time the OP  No. 1/developer has failed to provide the vacant flat in habitable condition to the complainant.  The complainant  has realized that the project work could not be completed  and as such  in any way  the developer/OP No. 1 was not able to deliver the possession of flat to the complainant within the stipulated period of time.  Resultantly, the complainant has prayed for  refund of Rs. 6,00,000/- from the end OP No. 1/developer.  Several correspondence have been make between the parties regarding refund of money but  ultimately  the OP No. 1/developer has failed to made the aforesaid refund to the complainant causing clear gross negligence, fault and deficiency of service on the part of the developer and accordingly the Ld. Counsel  appearing for the complainant has prayed for refund of consideration amount of  Rs.6,00,000/- alongwith   interest @ 18% p.a.

We have heard the Ld. Counsel appearing for the complainant at length and in full.

We have considered the submission of the Ld. Counsel.

We have meticulously  perused the materials available on the record.

The  hearing has been concluded.

We have perused the agreement for sale dated 08.09.2013 executed  by the complainant and OP No. 1/developer wherefrom  it appears to us that  the complainant being an intended purchaser has booked  one self-contained residential flat situated at 2nd floor  measuring super built up area more or less 700-750 sq.ft. consisting of two bedrooms, one dining room,  one kitchen,  one toilet and one balcony together with undivided proportionate share of  land including all common facilities  and common amenities belonging to the proposed building at a  total consideration amount of Rs. 21,00,000/-. This document also reveals that the developer/OP No.1 shall deliver the khas vacant possession of the said flat to the purchaser/complainant within 18 months from the date of execution of the  said agreement.  The Memo of Consideration  of said document  clearly reveals  that  the developer/OP No. 1  has received Rs. 6,00,000/- only being an earnest money  and to that effect  the OP No. 1/developer,  Pradip Saha has endorsed  his signature  upon such instrument .

From the aforesaid discussion, it is suitably decided  that out of total consideration amount of Rs. 21,00,000/-, the complainant has already made the payment of Rs.6,00,000/-  to the OP No. 1/developer which comes  well within the  purview of the definition  of the ‘complainant’  and the   rendering ‘service’ in pursuant to the  Consumer Protection Act. 

We have carefully perused two money receipts dated 23.04.2013 and 03.05.2013 respectively wherefrom it appears to us  that  the Opposite Party No. 1 has received Rs. 2,50,000/- and Rs. 3,50,000/-  from the end of the complainant and to that effect OP No. 1 has issued  the aforesaid money receipts dated 23.04.2013 and 03.05.2013.

It is admitted that one subsequent agreement for sale dated 10.12.2015 has been executed by and between the OP No.1 /developer, intended purchaser/complainant and the landowners (represented  by Pradip Saha  as constituted attorney) in respect of  self contained residential flat situated at 2^nd floor measuring super built up area more or less 750 sq.ft. consisting of two bedrooms,  one dining room, one kitchen , one  toilet and one balcony alongwith undivided proportionate share of land including  common facilities and amenities at a total consideration amount of Rs. 21,00,000/-. This agreement also reveals that  the earlier payment amounting to Rs. 6,00,000/-  in respect of   proposed  flat has been accepted by the Opposite Party No. 1 /developer  and subsequently  the complainant/purchaser has agreed to pay the balance sum of Rs. 15,00,000/-  to the developer  as per schedule of payment clearly enumerated  at the page No. 6 of aforesaid agreement . The Opposite No.1/developer has promised  to deliver the khas vacant possession of the said flat to the purchaser  within  18 months  from the date of execution of  the agreement. The subsequent agreement has been executed on 10.12.2015. So,  as per terms  and conditions of the aforesaid agreement, the delivery of the possession of  the flat should be made by the OP No. 1/developer  to the complainant  within June, 2017. 

Upon careful perusal of the  letters   lying the case record, it is evident that  the OP No. 1 was interested to make refund  of Rs. 6,00,000/-to the complainant without any interest  and compensation  but  against the said letter  the complainant has raised vehement objection  and asked for payment of principal amount of Rs.6,00,000/- alongwith  interest and compensation as the act  done by the  OP No. 1/developer  is harassive in nature.

From the aforesaid discussion, there is no hesitation to hold that the complainant has been waiting since June, 2017 for getting his flat  in habitable condition but it is very much painful  and unexpected that  the developer/OP No. 1 has failed to complete his project  within the stipulated period of time and also failed to deliver the khas vacant peaceful possession of the flat to the complainant till date causing clear gross negligence and deficiency of service on the part of OP No. 1/developer.

It is very common  expectation  at the behest of the complainant  to get the flat  in habitable condition from the end of the developer within the stipulated period of time but when  the developer has failed to provide the same to the complainant,  the order of refund should be passed  in favor of the complainant in order to meed the proper justice to the Complainant.  It is the settled principals of  law that  it is not expected at the behest of the complainant to wait for possession of the flat  for  indefinite period of time.

In this respect we can safely rely upon the decision  FORTUNE INFRASTRUCTURE AND ANOTHER  VS TREVOL D’LIMA AND OTHERS REPORTED IN (218) 5 SCC 442 wherein Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of amount paid by him along with compensation.  In this  respect,  we can depend upon another remarkable decision  Suniti Kumar Bhat and others  VS Unitech Acacia Projects Pvt. Ltd. and others reported in 2018(3)CPR 795 (NC) wherein the Hon’ble National Commission held that when the  builder fails to construct the flat on time, he is entitled to pay compensation in the form of interest  and cost of litigation.

Hon’ble National Commission, in NEENA Mehrotra  and Anr. VS M/S Unitech Limited, reported in 2017(3) CPR 376(NC) wherein Hon’ble NCDRC has been pleased to hold that in absence of any cogent  explanation for failure to comply with stipulation of delivery of possession, opposite  party has committed deficiency in service as also has indulged in unfair  trade practice.  When the OPs are not in a position to offer the  possession of the apartment,  the said opposite party/company shall refund  the amount with simple interest without any further liability and the allottee cannot be expected to wait for possession of the aforesaid apartment  for indefinite period of time.

Keeping in view of the above  observation , we hold that  there is a clear gross negligence   and deficiency in service on the part of OP No. 1/developer . So, the order of refund in favour of the complainant should be passed  against the OP No. 1/developer.

No order should be  passed against the OPs  No. 2 to 5 /landowners  as they have already entrusted all rights upon the OP No. 1/developer  by virtue of  General Power of Attorney.

The instant consumer case is thus allowed  against the OP No. 1/developer on contest with cost  and dismissed   exparte against the OPs No. 2 to 5/landowners without any order as to costs.

Hence,

It is

                                                     ORDERED

That the OP No. 1 /developer is hereby directed to make the refund amounting to Rs.  6,00,000/- ( Rupees six lakhs) only  to the complainant with 60(sixty) days from the date of this order alongwith simple interest @ 9% p.a. from the date of each payment ( in the form of compensation) till full realization.

That the OP No. 1/developer is further directed to pay litigation cost of Rs. 15,000/- ( Rupees fifteen thousand)  only  to the complainant within the aforesaid period of time,  in default, the said amount shall carry interest @ 9% p.a. till full realization.

In case of non-compliance of the order by the OP No. 1/developer, the Complainant is at liberty to put the order in execution.

Thus the Consumer Case stands disposed of as per observation.

Note accordingly.