HON’BLE SUDIP NIYOGI PRESIDENT FACTS The facts of the instant case are as follows: - The Complainants on being convinced by the Respondents had entered into an agreement on 17.05.2018 with Respondent Nos.1 to 5 for buying a flat being flat no.6B on the sixth floor, Block 2B2, under Precinct -07, with built up area 734 sq. ft. comprising two bedrooms, one living cum dining room, etc. along with one two-wheeler parking space situated at Satuli, P.S. – Kashipur, under Bhagawanpur Gram Panchayat, District – South 24 – Parganas at a consideration of Rs.17,25,000/-. The said consideration is inclusive of basic price but exclusive of taxes including GST. Complainants paid Rs.2,24,000/- towards application and allotment money including GST on 16.05.2018. He further paid Rs.12,96,000/- through bank. It was agreed that within 36 months with a grace period of 6 months from the date of agreement, the possession of the flat would be handed over. However, on 04.06.2021, the Complainants made an application for cancellation of the agreement and prayed for refund of the money paid by them. After initial reply in a positive way, they did not pay any heed to their request. So, by making an allegation of unfair trade practice and deficiency in service on the part of the Respondents, Complainants filed this instant complaint seeking several reliefs including refund of the amount paid by them as consideration along with an interest of 18% p.a. compensation and cost of litigation etc. Respondents No.1 to 5 by filing a written statement contested this case and raising some preliminary disputes regarding jurisdiction of this Commission claimed that due to pandemic situation, there was unintentional delay. But, they are trying to complete the construction work with full force and the same is now ready to sell and inhabitable condition. They denied the other allegations of the Complainants. Respondent No.6 filed a separate written version and claimed that their name should be struck off from the complaint as they are not a necessary party and they only provided financial assistance to the Complainants and they have no privity of contract with the Complainants regarding the delivery of possession and the possession of the flat. The parties filed their evidence on affidavit, exchanged questionnaires and replies and also filed written version of argument. POINTS FOR CONSIDERATION - Whether the instant complaint is maintainable?
- Whether the Complainants are entitled to the relief(s) as prayed for?
Both points are taken up together for consideration. We have gone through the materials on record including the documents filed by the parties. FINDINGS On considering the nature of the complaint we find, the instant case is quite maintainable before this Commission. Admittedly, there was an agreement between the Complainants and the Respondents No.1 to 5 whereby the Complainants had agreed to buy the schedule flat at a consideration of Rs. 17,25,000/-, which would be constructed by the Respondents No.1 to 5. It is further found and admitted that Complainants paid Rs.2,24,000/- to the Respondent No.5 on 16.05.2018. It further appears that Complainants obtained loan from Respondent No.6 in connection with purchase of their flat and further a sum of Rs. 12,96,000/- was also paid and this was also admitted by Respondent No.1 to 5. We further find from the agreement that initially 36 months was agreed to be the stipulated time during which the possession of the flat was to be handed over. However, there was a grace period of 6 months but even after the said grace period, the construction was not completed. So, the Complainants prayed for cancellation of their agreement and also for refund of the money advanced by them. Respondents (no. 1 to 5) also admitted about the prayer for cancellation of the agreement by the Complainants. According to Respondents, they could not complete the construction work due to lock down. The documents further revealed that Complainants were informed that after cancellation refund of the amount would be made as per the terms and conditions of the settlement. Here, in this case, we find the Complainants alleged that the construction was not completed within the stipulated period and that is one of the reasons for their prayer for cancellation of the agreement. Be it noted here, the agreement of the Complainants with the Respondents was executed on 17.05.2018. If the stipulated period of construction i.e. was 36 months with a grace period of 6 months, that is, a period of 42 months in all, in that event the Respondents were to complete the project by January, 2022. But, in this connection we cannot ignore the claim of the Respondents that there was element of force majeure on account of the lock down for Covid – 19 pandemic during a major part of 2020 & 2021 and the said situation was beyond the control of the Respondents during which no construction work could be continued. The instant case is found to have been filed on 14.03.2022. So, for the delay in completion of the project, the Respondents No.1 to 5 cannot be blamed. We find in the agreement itself it has been clearly stated “that in the event, the purchaser(s) is desirous to withdraw at any point of time due to any reason, he may submit his application for withdrawal and the amount deposited by him till the date of application will be refunded after deducting 30%.” So, following the said Clause of the agreement, the Complainants are found to have requested for cancellation. It may be noted here that the Complainants obtained loan in order to finance consideration of their flat and they have to pay EMIs of their loan to Respondent No.6. But Respondents No.1to 5 did not refund the amount to the Complainants. Taking into consideration of all these things, we are of the opinion to allow the prayer for refund of the amount paid by the Complainants towards consideration of their flat to Respondent No.5 along with interest @10% p.a. on the amount of refund. Therefore, the Complainants are entitled to get refund of Rs.15,20,000/- along with interest @10% p.a. from the date of filing of this case i.e. 14.03.2022 until realization full. This apart, Complainants are also entitled to Rs.4,000/- for cost of litigation. As interest is being awarded no further amount towards compensation is given. Be it noted here that the Complainants did not seek any relief(s) against Respondent No.6 and therefore the instant case against Respondent No.6 is liable to be dismissed. Accordingly it is, ORDERED That the instant complaint is allowed against Respondent Nos.1 to 5 on contest and dismissed against Respondent No.6 also on contest. Respondents No.1 to 5 are directed to refund the amount of Rs.15,20,000/- (Rupees Fifteen Lakh Twenty Thousand Only) along with interest @10% p.a. from the date of 14.03.2022 until realization in full. The said Respondents are to pay Rs.4,000/- (Rupees Four Thousand Only) towards cost of litigation to the Complainants. Respondents No. 1 to 5 are jointly and severally liable for a due compliance with the Order. The aforesaid order shall be complied with, within 45 days from the date of this order failing which Complainants shall be at liberty to proceed in accordance with law. Dictated and corrected by me President | 
