Ld. Advocate(s)
For Complainant: Debraj Das
For OP/OPs : Barun Prasad
Date of filing of the case :17.05.2022
Date of Disposal of the case :31.05.2024
Final Order / Judgment dtd.31.05.2024
The concise fact of the case of the complainant briefly narrated to the effect that the complainants Mithun Das and Mamata Das applied of
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one 2Bhk flat in the project of the opposite parties under the name and style of “Magnolia Sport City”. On 14.02.2017 they submitted one application for one 2Bhk flat at Block-2, 2nd floor, category-E, flat no.20E, area 670 sq.ft. at a price of Rs.1950/- per Sq.ft. and made payment of Rs.11,000/- towards booking charge. The OP No.2 Director of Umang Nemani, OMEGA VANIJYA PRIVATE LIMITED purchased from Ghosh Brother Realtors Private Limited. Thereafter on 31.03.2017 one agreement for sale was executed between the complainants and OP NO.1 Director through Vivek Poddar of Mangolia Infrastructure Development Limited and Director Umang Nemani . The complainants paid Rs.90,000/- and 35,529/- on the date of execution of the agreement for sale . It was agreed that within three years from the date of commencement of the construction and additional 6 months may be extended for unavoidable circumstances. The original agreement for sale is deposited to the SBI Rajarhat Branch against the loan for purchasing the flat to the SBI. The OPs obtained clearance certificate of proposed construction of G plus 7 storied residential building plan from the Government Department. As per the agreement the date of commencement of construction is 26.07.2017 and expiry date is 26.01.2021 as per the agreement commenced on 31.03.2017. The OP started work on 31.05.2018. So, one demand notice was sent to the complainants for Rs. 2,92,656/- on 31.05.2018. On 19.11.2018 the complainants made payment of Rs.4,38,984/- for completion of foundation and ground floor roof casting . The complainants further made payment of Rs.1,46,328/- to the OPs on 26.12.2018. The complainants made further payment of Rs.1,46,328/- to the OPs for third floor roof casting . He also paid Rs.1,31,956/- to the OPs on 22.05.2019 for completion of 5th floor roof casting . Subsequently, the complainants further paid Rs.2,63,914/- on 25.05.2019 on completion of brick work and 7th floor roof casting . On 11.07.2020 and 22.09.2020 the complainants issued two letters to the OPs for delay in handing over the said flat and for expiry of the date of delivery of flat. On 13.10.2020 the OPs replied through e-mail stating that due to WB HIRA approval the time limit has not expired. The HIRA is not applicable in the ongoing project because the WB HIRA was enacted after the execution of the agreement. Therefore, the complainants lodged a complaint to the Consumer Affairs Department North 24 Parganas on 14.05.2021 but the matter was not settled there. The complainants made payment of 95% of the amount as per the agreement dated 31.03.2017 but the OPs delayed the construction work. The construction work has not been completed due to negligence of the OPs. The complainants sent one e-mail notice on 17.12.2021 for registration of the sale deed. The
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complainants also paid Rs.28,462/- to the OP NO.1 for trans-forma installation and Rs.65,977/- on 17.12.2021 for completion of flooring. He further paid Rs.1,33,016/- as per the agreement and Rs.28,462/- to the OP No.1. So, the present case is filed. The OPs sent a letter for making final payment of Rs.65,979/-. Finally the OPs executed one deed of conveyance on 31.05.2023 vide deed no. 3599 by 2019. The said original deed of conveyance is submitted to the SBI Rajarhat Branch on 19.06.2023 against financing the flat. The OPs has handed over the possession of the flat with a possession letter to the complainants. The complainants claimed for interest from the date of expiry of delivery time till the date of delivery of physical possession upto 19.06.2023. The cause of action for the present case arose on 26.01.2021 and thereafter each date till the filing of this case. The complainants prayed for an award for an interest @ 18% p.a from the date of expiry of the delivery date till the date of delivery of physical possession of registered deed, Rs.2,50,000/- compensation for harassment and mental pain, agony and Rs.50,000/- for litigation cost.
Both the OPs contested the case by filing W/V wherein they denied each and every allegation. The OPs challenged the case as not maintainable on the ground that it is bad for non-joinder and mis-joinder of parties and it is not maintainable under the law and barred by jurisdiction. The positive defence case of the OPs in brief is that for development of land of OP no.2 one development agreement date 06.04.2016 was executed with OP No.1 for construction of residential multi storied building. The OP No.2 executed one power of attorney in favour of the OP No.1. The complainants approached the OP No.1 for purchasing one flat on 14.02.2017 and the OP No.1 agreed to allot and sale for Rs.1,36,500/- the complainants paid Rs.1,36,529/- as booking money. They entered into an agreement for sale on 31.03.2017. As per the HIRA the date of commencement was 15.11.2018. It was agreed that the OPs developer shall hand over the flat within the period of three years from the date of commencement of construction. Due to pandemic situation of Covid-19 the construction work was stopped due to Lock Down from 24.03.2020 upto 2020. So, WB HIRA by notification extended the time limit upto 01.09.2023 at their website for completion of the building. There is no fault or delay in completion of the building complex. The Developer completed the building on 01.09.2023 as the WB HIRA extended time limit. The complainants paid 90% of total consideration money . The complainants should also follow the rules of WB HIRA. The OPs
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claimed that the complainants tried to pressure upon the OPs to damage their reputation. The OPs claimed that the case is liable to be dismissed.
The points of conflict between the parties in regard to the delivery of possession of the flat beyond the alleged time limit for handing over is the point of contention. The commission considers it necessary to ascertain the following points for proper adjudication of the case.
Points for Determination
Point No.1.
Whether the present case is legally maintainable.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
The OPs challenged the case as not maintainable on the ground that the case barred by non-joinder and mis-joinder of parties. In the given facts and circumstances since WB HIRA is applicable, so the complainant has no cause of action.
The OPs claimed that due to coming into the force of WB HIRA the present complaint is not maintainable and the complainant does not have any cause of action.
Ld. Advocate for the complainant argued that the Act of WB HIRA came into force on 17.10.2017. The agreement between the parties was executed on 31.03.2017, so the Act does not have any application in the instant case.
After perusing the documents filed by the complainant it transpires that the agreement between the complainant and the OPs was executed on 31.03.2017. The Act came into force on 17.10.2017.
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Ld. Defence Counsel could not satisfy the commission as to how the said WB HIRA is applicable in this case.
Accordingly, after taking into consideration the pleadings of the parties and the argument advanced by Ld. Advocate for both the parties the Commission considers that the case is not barred under any provisions of law.
Although the complainant pleaded that the present case is bad for defect of parties yet the OPs could not specify as to who others are proper and necessary parties in this case except the present OPs.
Accordingly, there is no material within the four-corners of the case record to hold that the case is bad for defect of parties. Accordingly, it is held that the case is not bad for defect of parties.
Consequently, point no.1 is answered in affirmative and decided in favour of the complainant.
Point No.2&3.
Both the points have close nexus with each other and as such these are taken up together for brevity and convenience of discussion.
It is the admitted case that the opposite parties have handed over the delivery of possession of the disputed flat during the pendency of the case. The complainants by means of amendment of complaint has pleaded the said fact in para 13 to the effect that on 19.06.2023 the opposite parties have handed over the physical possession of the disputed flat and issued one possession letter to the complainant . Therefore, the complainant has not claimed for delivery of physical possession of the flat by executing registered deed of sale at present . The complainants have prayed for interest from the date of expiry of the delivery time till the date of delivery of possession that is upto 19.06.2023.
So, the crux of the case is that to ascertain whether the WB HIRA, 2017 is applicable in this case.
In this regard annexure-I is the best document. Annexure-I is the form no. 3, certificate for extension of registration of project dated 15.10.2020 issued by Secretary WB HIRA, West Bengal. As per point no.2 of the said annexure-I “Registration shall be extended by period of 9 months ending on 01.09.2023 and the total duration
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of the period of registration of the project shall be 4.8 years commencing from 15.11.2018 ending on 01.09.2023.”
As per Annexure-I the said HIRA certificate for extension of the date of commencement of the said project is 15.11.2018 but in the instant case the agreement between the complainants and the OPs is 31.03.2017. So, the said certificate for extension under form no.3 (Annexure-I) does not have any application in the instant case. So, the complainants rightly claimed that the said extension of time by virtue of Annexure-I cannot bind and it is not applicable to him.
The argument advanced by the Ld. Advocate for the complainant in this regard is reasonable and acceptable, in as much as the Ld. Defence counsel could not satisfy as to how this certificate is applicable to the complainants.
Annexure-B is the agreement to sale dated 31.03.2017 which clearly specify as per clause IX that the developer shall give possession within a period of three years from the date of commencement of construction.
Ld. Advocate for the complainant argued that the OP company got clearance of the project on 26.07.2017, so they ought to have commenced the project immediately after getting the clearance.
The complainant proved one document annexure-D being a letter issued by Special Secretary to the Government of West Bengal, Panchayet and Rural Development Department, Kolkata vide letter reference no. 3883-RD-F/RIDF-IV-41/2017 dated 26.07.2017 stating inter-alia that “clearance proposed construction of G plus 7th storied building plan, as regards the above reference this department has no objection in giving the clearance of construction of the said residential building plan...”.
So, the argument of the Ld. Advocate for the complainant has reasonable force in as much as the OPs seems to have obtained clearance certificate on 26.07.2017 but the Covid started in March, 2020.” So, the OPs could not give sufficient explanation as to why the project could not be completed or delayed in the said project prior to the said Lock Down period.
Moreover, the extension of time by the HIRA is not applicable for the complainant as stated hereinabove.
Ld. Advocate for the complainant in order to strengthen the case referred to one decision reported in Civil Appeal No.3182 of 2019 passed by Hon’ble Supreme Court wherein it was held that it
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is unjustified it would be manifestly unreasonable to construe the contract between the parties as requiring the time to wait indeifinitely for possession. So, an interest was awarded for delay in delivery of possession.
The said case law is applicable here and as such relied on.
Ld. Advocate for the complainant further referred to one decision reported in AIR-2018 SC 5351 wherein interest was awarded for detailed delivery of possession.
The said case law is also applicable here.
The aforesaid misdeeds on the part of the OPs tantamount to unfair trade practices and deficiency in service.
In the backdrop of the aforesaid discussion and observation made hereinabove the Commission is of the view that the OPs could not justify the delay in delivery of possession and the complainants successfully proved the case upto the hilt.
Point no.2&3 are accordingly, decided in favour of the complainants positively.
In the result the complaint case succeeds on contest with cost against the OPs.
Hence,
It is
Ordered
that the complaint case no.CC/52/2022 be and the same is allowed on contest with cost of Rs.10,000/- (Rupees ten thousand) against the OPs. The complainants Mithun Das & Smt. Mamata Das do get an award for an interest of 12% p.a on the total amount of money paid by the complainants to the OPs Rs.13,58,478/- (Rupees thirteen lakhs fifty eight thousand four hundred seventy eight) from the date of expiry of the delivery time to the complainants till the date of delivery of physical possession of the completed flat and execution of the registered deed , Rs. 50,000/- (Rupees fifty thousand) for harassment and mental pain and agony and Rs.10,000/- (Rupees ten thousand) towards litigation cost. The opposite parties are jointly and severally directed to pay the interest money as above and Rs.60,000/- (Rupees
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sixty thousand) within 30 days from the date of passing the final order failing which the entire award money shall carry an interest @12% p.a from the date of passing the final award till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(SHRI NIROD BARAN ROY CHOWDHURY)
