State Consumer Disputes Redressal Commission
Sri Mahabir Prasad Bansal vs M/S. Bengal Sharchi Housing ... on 19 April, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/201/2013 1. Sri Mahabir Prasad Bansal S/o Rajkumar Bansal, 15/16, Musalman Para Lane, P.O. - Kadamtala (near Bantra Kabarsthan), P.S. Kadamtala, Howrah - 711 101. ...........Complainant(s) Versus 1. M/s. Bengal Sharchi Housing Development Ltd. Sharchi Tower, 686, Anandapur, E.M. Bye Pass R.B. Connector Junction, P.S. Rajarhat, Kolkata - 700 107. 2. West Bengal Housing Boiard 105, Surendra Nath Banerjee Road, Kolkata - 700 014. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Barun Prasad Mr. Subrata Mondal, Advocate For the Opp. Party: Mr. N. R. Mukherjee, Advocate Dated : 19 Apr 2017 Final Order / Judgement Date of filing - 27.08.2013 Date of final hearing - 06.04.2017 The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of an intending purchaser against the developer (Opposite Party No.1) and the land owner i.e. West Bengal Housing Board (OP no.2) on the allegation of deficiency in services, particularly against OP no.1 in a consumer dispute of housing construction.
In a nutshell, Complainant's case is that on 04.06.2007 he submitted an application to the OP no.1 Company for booking of a flat/unit at Greenwood Elements, ARIA-II and paid a sum of Rs.2,22,753/- by cheque as booking money. On 01.08.2007 the OP no.1 Company issued a provisional allotment letter where the complainant was provisionally allotted a unit/flat bearing No.7B1 ARIA (3BHK) at ARIA-II along with one covered car parking space at Greenwood Elements, New Town, Kolkata at a total consideration of Rs.47,90,060/-. The complainant has stated that he has already paid a sum of Rs.44,03,515/- only out of total consideration of Rs.47,93,768/- and agreed to pay balance consideration of money amounting to Rs.3,53,253/- at the time of delivery of possession. It was stipulated that the OP no.1 Company will hand over the flat within 36 months from the date of provisional allotment letter but the OP no.1/developer has failed to keep their commitment and insisted him to take possession though it was not habitable. In this regard, all the requests and persuasions of the complainant to make the subject flat habitable turned a deaf ear and on the contrary, the OP no.1 unilaterally cancelled the agreement. Hence, the complainant has come up in this Commission with the instant complaint with prayer for certain reliefs, viz. - (a) to direct the opposite parties to execute and register the Deed of Conveyance in favour of him or alternatively to refund the deposited amount of Rs.44,03,515/- along with 15% interest thereon till realisation; (b) for compensation of Rs.20,00,000/- for harassment and mental agony etc. and (c) Rs.20,000/- as litigation cost etc. The opposite party no.1 by filing a written version (written objection) disputed the claim of the complainant. The OP no.1 has stated that on several occasions, they requested the complainant to take possession of the flat but the complainant failed and neglected to take possession of the flat and as such by a letter dated 07.11.2012, the OP no.1 Company had issued the cancellation letter to the complainant and subsequently they have taken steps for the purpose of re-allotment of the said unit. Hence, the complaint should be dismissed.
On the basis of contention of the parties, the following points are framed for adjudication:-
Is the complaint maintainable in its present form?
Is the Complainant a consumer as defined in Section 2(1)(d) of the Act?
Are the OPs deficient in rendering services to the Complainant?
Is the Complainant entitled to relief/reliefs, as prayed for?
During hearing of the case, Sri Mahabir Prasad Bansal, Complainant has filed evidence on affidavit against which questionnaire was set forth by OPs to which reply was given by the Complainant.
On behalf of the contesting OP, Sri Balai Dey being Authorised Representative has filed evidence on affidavit. He has also given reply against the questionnaire set forth by the Complainant.
Besides oral evidence, both the parties have relied upon some documentary evidence. Apart from the same, OP no.1 has filed Written Notes of Argument.
On the basis of the materials indicated herein above, we shall proceed to ascertain how far the Complainant has been able to substantiate the case.
On perusal of materials on record, it has come to surface that the complainant had made an application on 04.06.2007 to the OP no.1/developer for allotment of a unit at the proposed township being constructed by OP no.1 on a land measuring 0.96 acres being HIDCO Plot No.AA, Action Area-IID, New Town and has paid Rs.2,22,753/- by cheque in favour of OP no.1 as booking money. On 01.08.2007 the OP no.1 provisionally allotted one unit on the 7th floor being Flat No.7B1, ARIA-II in HIG Apartment measuring an area of 1811 sq. ft. and one covered car parking super built up area to be constructed at a building at Greenwood Elements, New Town, P.S.- Airport at a total consideration of Rs. 47,90,060/-.
The provisional allotment letter provides payment schedule as follows -
Particulars Amount Due Date Booking + 0 Days 2, 22, 753.00 Jun-04, 2007 On allotment 10,62,220.00 Sep-14, 2007 On completion of foundation 6,68,259.00 On cast 3rd floor 4,45,506.00 On cast 6th floor 4,45,506.00 On cast 9th floor 6,68,259.00 On cast 12th floor 4,45,506.00 On compl brick 4,45,506.00 On final notice of possession 3,90,253.00 Total 47,93,768.00 Out of the total consideration amount of Rs.47,93,768/- as mentioned in the allotment letter, the complainant has already paid Rs.44,03,515/- and oblige to pay a sum of Rs.3,90,253/- at the time of delivery of possession as per terms of the allotment letter.
The complainant has articulated that the OP no.1 Company could not keep their promise in handing over the flat within stipulated period of three years from 01.08.2007. On the other hand, it is alleged by the OP no.1 Company that the complainant defaulted in payment as per payment schedule and in this regard all the requests and demand notices went in vain.
It is trite law that the parties are bound by the agreement. Both the parties after knowing pros and cons of the provisional allotment letter or the terms and conditions which formed part of provisional allotment letter entered into agreement. Either of the parties never raised any objection against any terms and conditions of the agreement. Therefore, the agreement between the parties towers above the rest. In this backdrop, we shall consider whether the OP no.1 developer has failed to keep their commitment.
As per terms of the agreement, the OP no.1 Company was under obligation to complete the construction and to hand over the same to the complainant by 31.07.2010. The overwhelming evidence of record makes it abundantly clear that the OP no.1 could not complete the construction within the time frame. The certificate given by Executive Engineer - II of New Town Kolkata Development Authority (NKDA) dated 04.07.2013 clearly indicates that even on that date, Occupancy Certificate could not be given to the OP no.1 Company for their project at Greenwood Elements due to non-completion of construction of the project. Therefore, from the said certificate, it becomes crystal clear that even in the year, 2013 the developer could not complete the construction of their project.
The letter given on behalf of the OP no.1 Company dated 02.02.2013 addressed to the complainant is noteworthy which is reproduces below -
"Dear Mr. Bansal, In reference to your several mails and discussions had with our senior management, please be informed that snags of your flat has been rectified by our concerned department which you have already inspected on 03.02.2013. We have also intimated you that door will be replaced shortly. Regarding damped, it will be also rectified. Rather than this two, we are unable to rectify the below issues (Point Nos. 3, 4, 5 & 6) those are under standard specifications of our company.
As per our management decision, please note that we are cancelling your unit and will refund your full money within 7 days without deducting cancellation charges".
In the written argument, it has been mentioned by the OP no.1 Company that they completed the project on 23.02.2011 and requested the complainant to take possession of the property after making payment of the balance consideration money and all other outstanding dues. The written argument on this point is totally contradictory to the certificate issued by the Executive Engineer, NKDA dated 04.07.2013.
By the mail dated 02.02.2013, the opposite party has stated that they will refund the entire amount paid by the complainant within seven days. The OP no.1 Company has failed to show any scrap of paper that they have ever made any attempt to send any Bank Draft/Pay Order to the complainant. In the written argument, it has been mentioned that by a letter dated 26.02.2013 they informed SBI, Howrah Branch that the provisional allotment has been cancelled and the sum of Rs.44,03,954/- received so far would be refunded without any deduction but by a letter dated 04.07.2013 Bank refused to accept such refund. It has also been stated that by a letter dated 07.08.2013, the OP no.1 again offered to refund the said sum to the Bank. Had it been so, I am at a loss to understand what prevented the OP no.1 Company to produce those letters and the letter of refusal of Bank for appreciation of bonafide on the part of OP no.1 Company. It is well settled that best evidence must always be given and when the OP no.1 inspite of having such opportunity did not avail of the same, an adverse presumption should be drawn against the OP no.1 Company.
The evidence on record also reveals that due to their own problems, the OP no.1/developer could not complete the construction within the time frame and in this regard, they had taken the ground of force majeure conditions including delay on account of non-availability of steel, cement, building materials, water supply, electric power etc. There is no document that at the relevant time there was no availability of steel or cement in the market or that there was no water supply or electric connection in the locality. These grounds cannot be considered as force majeure. What is important is that the OP no.1 did not adhere even to the dead line stipulated in their allotment letter dated 01.08.2007. The developer could not complete the construction within time and on the contrary started blame game upon the complainant for non-payment of instalment although the OP no.1/developer has agreed that the complainant has paid a sum of Rs.44,03,954/- as part consideration amount.
The fact remains that the OP no1/developer unilaterally cancelled the agreement. It is well settled that a builder cannot be permitted to hold money of allottee for an indefinite period without performing his part of contract. The complainant became a bitter pill for the OP no.1 as the complainant claimed interest over the amount paid by him after expiry of the stipulated period.
Therefore, it is evident that the complainant being a 'consumer' as defined in Section 2(1)(d)(ii) of the Act hired the services of OP no.1 Company upon payment of money and agreed to pay the balance amount and when the OP no.1 could not keep their commitment as per terms of the agreement, certainly, the OP no.1 was deficient in rendering services as per Section 2(1)(g) and read with Section 2(1)(o) of the Act. In that perspective, the complainant is entitled to relief. Considering the fact that when the relation between the complainant and OP no.1 turned into sour, instead of direction of execution of Sale Deed, an order of refund of deposited amount of Rs.44,03,515/- together with an interest thereon @ 15% p.a. from 01.08.2010 (expiry of three years from the date of letter) will meet the ends of justice. The complainant has suffered mental agony for prolonged ten years and his dream of having a roof over his head has been vanished and as such he is entitled to compensation and in my view, a compensation of Rs.10,00,000/- in the facts and circumstances of the case will cater the object. The acts and conducts of the OP no.1 led the complainant to lodge this complaint and as such the complainant is entitled to litigation cost which I assess at Rs.10,000/-.
Consequently, the instant complaint is allowed on contest in part against OP no.1 with cost of Rs.10,000/- and dismissed exparte against OP no.2 without any order as to costs.
The OP no.1/developer is directed to refund Rs.44,03,515/- together with interest thereon @ 15% p.a. from 01.08.2010 till its full realisation. The OP no.1 is also directed to make payment of compensation of Rs.10,00,000/- and litigation cost of Rs.10,000/- to the complainant. All the above payments must be paid within 30 days from date, otherwise the amount of compensation and litigation cost shall carry interest @ 9% p.a. from this date till its full realisation.
The Registrar of the Commission is directed to send a copy of this order to the parties at once free of cost for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER