State Consumer Disputes Redressal Commission
The Director, Green Tech It City Pvt. ... vs Prasenjit Nayek on 27 June, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/702/2016 (Arisen out of Order Dated 15/06/2016 in Case No. Complaint Case No. CC/19/2016 of District North 24 Parganas) 1. The Director, Green Tech IT City Pvt. Ltd. 1/1B, Upper Wood Street, Kolkata - 700 017. 2. The Site Manager, Green Tech City Smart Home Residency -1, Mouza - Bajetaraf(Chandpur Panchayet), P.S. - Rajarhat, Kolkata - 700 135. ...........Appellant(s) Versus 1. Prasenjit Nayek S/o Giridhari Nayek, Vill. & P.O. - Champadanga, P.S. - Tarakeswar, Dist. Hooghly, Pin - 712 401. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Alok Mukhopadhyay, Ms. Rituparna Maitra, Advocate For the Respondent: Mr. Susil Kr. Sikdar, Mr. Bidyak Lahiri, Advocate Dated : 27 Jun 2017 Final Order / Judgement
Date of Filing - 04.08.2016 Date of Hearing - 15.06.2017 The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Opposite Parties to impeach the Judgement/Final Order dated 15.06.2016 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum) in Consumer Complaint no. 19/2016 whereby the consumer complaint initiated by the Respondent Sri Prasenjit Nayek under Section 12 of the Act was allowed on contest with directions upon the Appellants to deliver possession of the complete flat after receiving the balance consideration money from the complainant within one month from the date of order, in default the appellants to return Rs.11,21,620/- with interest thereon @ 9% p.a. till full payment, pay compensation of Rs.10,000/- and litigation cost of Rs.5,000/- within one month, failing which the appellants will be liable to pay a sum of Rs.100/- per day as punitive damages.
The Respondent herein being Complainant lodged the complaint asserting that on 24.09.2013 he entered into an agreement with the opposite parties to purchase of a flat measuring about 950 sq. ft. super built up area being Unit No.M2 on the 2nd floor and one car parking space on the stilt level at a consideration of Rs.24,70,000/- + Rs.2,50,000/- in a premises lying and situated at L.R. Plot Nos. 91, 97, 102 to 110, 113, 226, 232 to 234, 232/1233, 233/1234, 233/1245 under Mouza - Bajetaraf, P.S.- Rajarhat, Dist - North 24 Parganas. The complainant has stated that he has already paid Rs.11,21,600/- after obtaining bank loan. It was stipulated that the opposite parties/developers will hand over the subject flat within 24 months from the date of execution of Agreement for Sale on payment of the entire consideration amount. The complainant submits that he was ready and willing to make payment the balance amount but the OPs did not complete the construction of flat within the time frame. Hence, the Respondent approached the Ld. District Forum with prayer for certain reliefs, like - (a) to hand over possession on payment of balance amount; (b) compensation of Rs.2,00,000/- for harassment and mental agony and (c) Rs.5,00,000/- as litigation cost The Appellants herein being OPs by filing a written version have stated that the subject flat could not be delivered within 24 months on account of force majeure events which prevented them to complete the project within the stipulated period.
After assessing the materials on record, the Ld. District Forum by the impugned judgement and final order allowed the complaint with certain directions, as indicated above, which prompted the OPs to prefer this appeal.
Mr. Srijan Nayek, Ld. Counsel appearing for the appellants has drawn my attention to the schedule -III of the Agreement for Sale and submitted that the respondent has only paid Rs.11,21,620/- and thereby defaulted in payments. He has further submitted that in fact after completion of 2nd floor casting, the respondent did not make a single farthing towards construction of the project. He has further submitted that some force majeure events became stumbling block in completion of the project within the time frame.
Mr. Barun Prsasad, Ld. Counsel for the respondent, on the contrary has submitted that the expected possession time was given 24 months from the effective date but within the time frame, the appellants never made any correspondences with the respondent asking him to take possession after making payment of the balance consideration amount. Therefore, the question of default in payment does not arise. He has further contended that assuming that the respondent has failed to make payment as per payment schedule yet when there is no clause in force majeure events that non-payment of the amount would be considered as force majeure events, certainly the appellants has no case at all. He has further submitted that the Ld. District Forum has passed the order directing the developer either to execute the Sale Deed after receipt of balance amount or to return Rs.11,21,620/- with interest thereon @ 9% p.a. is a harmless order and the developer had no reason to file this appeal and the object of this appeal is to cause delay of execution of the order.
I have considered the submission advanced by the Ld. Advocates appearing for the parties and also scrutinised the materials on record.
Having heard the Ld. Advocates appearing for the parties and on going through the materials on record, it would reveal that the Respondent entered into an Agreement for Sale with the appellants on 24.09.2013 to purchase of a flat measuring about 950 sq. ft. super built up area being Unit No.M2 on the 2nd floor and one car parking space on the stilt level at a consideration of Rs.24,70,000/- + Rs.2,50,000/- in a premises lying and situated at L.R. Plot Nos. 91, 97, 102 to 110, 113, 226, 232 to 234, 232/1233, 233/1234, 233/1245 under Mouza - Bajetaraf, P.S.- Rajarhat, Dist - North 24 Parganas. In the Agreement, it was stipulated that the developer will hand over the possession of the flat to the purchaser within 24 months from the date of execution of Agreement for Sale. It is also not in dispute that the respondent has paid part consideration amount of Rs.11,21,620/- out of total consideration amount.
It is true that in Schedule - III of the Agreement for Sale, the instalment payment schedule was given and as per terms of the agreement, the respondent was liable to make payment to the developer phase wise by way of ten instalments. Admittedly, the appellants had never asked the respondent to take possession of the subject flat after payment of balance consideration amount. Therefore, it cannot be said that the respondent was not ready to make payment. It is bounden duty on the part of the developer to inform an intending purchaser about the progress of construction time to time and asking him to make payment. When there was no such effort on the part of the developer, certainly the liability in this regard cannot be attributed upon the respondent.
The appellants in Paragraph-3 in their written version has admitted that they were prevented to complete the project owing to certain factors beyond their control. In the Agreement for Sale, the force majeure events has been mentioned which includes - (a) act of war or hostilities of any kind, (b) riot, commotions or other civil disorders; (c) any act, restrained or regulation of any governmental instrumentality including any local, state or Central Govyt. Of India or any department instrumentality or agencies thereof including (d) any act, regulation or restrain constituting a change in law; (e) any failure by a competent authority to grant or renew any licence, permit or clearance within reasonable time (other than for cause) after application having been duly made or (f) the imposition of any material condition of the issuance or renewal or continuance of any approval from a competent authority; (g) any local issue which may hamper the implementation of the project; (h) flood, cyclone, lightening, earthquake, drought, storm or any other effect of natural elements; (i) epidemic, famine or plague; (j) fire, explosion or accident leading to breakage of facilities, plant or equipment or chemical contamination thereof; (k) strike, lockout or other labour difficulties or (l) legal proceedings or any other order rule or notification issued by the competent authorities effecting the development of the project.
On going through the contents of the written version, I do not find any specific plea regarding any of the force majeure events by the developers. Therefore, it is quite apparent that the developer was deficient in rendering the services as per terms of the agreement and as such the Ld. District Forum was quite justified in passing the order impugned.
However, the Ld. District Forum had no occasion to impose penalty of Rs.100/- per day as punitive damages because I do not find any averment in the petition of complaint and any prayer in the prayer clause of the petition of complaint and therefore, that part of the order is liable to be set aside.
In view of the above, the appeal is disposed of with a direction upon the appellants/opposite parties to comply with the order passed by the Ld. District Forum excepting payment of punitive charges of Rs.100/- per day.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information and guidance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER