State Consumer Disputes Redressal Commission
Sri Omprakash Virwani vs M/S. Ideal Real Estates Pvt. Ltd. on 13 December, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/263/2015 1. Sri Omprakash Virwani 2A, P.C. Mitra Lane, 4th Floor, Kolkata - 700 033. Represented by its authorized representative and constituted attorney Sri Deepak Virwani. ...........Complainant(s) Versus 1. M/s. Ideal Real Estates Pvt. Ltd. Ideal Regency, 50, Jawaharlal Nehru Road, 11th Floor, Kolkata - 700 071. 2. Anuj Tulsyan, Vice President of M/s Ideal Real Estates Pvt Ltd. 50, Jawaharlal Nehru Road, 11th Floor, Kolkata - 700 071. 3. S.K Himatsingka, Director of M/S Ideal Real Estates Pvt Ltd. 50, Jawaharlal Nehru Road, 11th Floor, Kolkata - 700 071. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. K. P. Tiwari, Advocate For the Opp. Party: Dated : 13 Dec 2017 Final Order / Judgement Date of filing : 17.07.2015 Date of hearing : 27.11.2017 The instant complainant under Section 17 of the Consumer Protection Act, 1986 ( for brevity, "the Act" ) is at the instance of an intending purchaser against the developer/builder and its two officers on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
Succinctly put, complainant's case is that 17.08.2010 the complainant entered into an agreement to purchase of a flat being flat no.2D in Block - A, Ideal Regency, lying and situated at premises no. 46, Diomond Harbour Road, P.S.-Thakurpukur, Kolkata - 700 063, District - South 24 Parganas within the local limits of Kolkata Municipal Corporation ( KMC) at a total consideration of Rs. 39,74,050/-, subsequently revised to Rs. 40,56,959/- in July, 2010 and Rs. 40,59,032/- in April, 2012 due to service tax rule, revisions etc. The complainant states that he has already paid Rs. 36,49,193/- to the OP No.1 on diverse dates. The complainant states that sometime in December , 2012 he came to know that there was perceptible and extremely disagreeable shift in the position of Block - A with respect to Block - B at the said project, whereby the Block - B was creating a huge blockage in the opening of the balcony and found other deviations also. The complainant brought it to the notice of OP No.1 through OP No.2 and ultimately on 28.04.2013 the complainant alongwith OP No.2 held a joint inspection where the OP No.2 acknowledged the authenticity and genuineness of the complainant's concerns and grievances and assured the complainant that he will ensure that the problem is resolved. The complainant has also stated that on 16.012004 he informed the OP No.2 through e-mail about the defective grill setting, unprovided A.C. ledges for split A.Cs and reminded him of the defected balcony. The complainant alleges that on 18.01.2014 he was served with a letter of possession without solving any of the issues as pointed by him. Hence, the complainant approached this Commission with prayer for several reliefs,viz - (a) to direct the OPs to handover the vacant and peaceful possession of the flat according to the original design as per agreement dated 17.08.2010 ; (b) interest @ 18% p.a. for delay in completion over the amount of Rs.36,49,193/-;(c) compensation for lack of any common drain pipes for air-conditioner outlets and for lack of facilities as mentioned in the brochures to the tune of Rs. 10,00,000- and Rs. 5,00,000/- respectively ; (d) compensation for harassment and mental agony to the tune of Rs. 20.00,000/- ;(e) cost of proceeding etc. The Opposite Parties by filing a written version have stated that they have obtained Completion Certificate for the building complex from the K.M.C. on 11.12.2015 and ready to hand over the possession of the subject flat to the complainant. The OP has also submitted that the position of all the Blocks of the project were done as per sanctioned plan and as such the question of any shifting in position of Block-A does not arise and as such the complaint should be dismissed.
In support of the case of the complainant, Shri Deepak Virwani, the son and constituted Attorney of the complainant has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by the OPs. On behalf of the OPs Shri Abhinav Mishra, Authorised Signatory of OP No.1/builder has filed evidence on affidavit. The said Authorised Signatory of OP No.1 has also given reply against the questionnaire put forward by the complainant. Besides the same, the parties have relied upon several documents in respect of their respective cases. At the time of final hearing, a Brief Notes of Arguments has been filed by the complainant.
I have scrutinised the pleadings of the parties, the evidence adduced by them through affidavits and the documents placed by them available on the record. Considered the submission advanced by Authorised Representative (A.R) of the complainant and the Ld. Advocate for the OPs.
The overwhelming evidence on record suggests that the OP No.1 is an incorporated company and OP Nos. 2 & 3 are Vice President and Director respectively of OP No.1 company. The OP No.1 company published and distributed in various electronic media and newspapers to raise construction in respect of a project situated at premises no. 46, DiAmond Harbour Road, P.S.-Thakurpukur, Kolkata - 700 063, District - South 24 Parganas within the local limits of Kolkata Municipal Corporation ( KMC). Being impressed, the complainant entered into an agreement to purchase of a flat being flat no.2D in Block - A, Ideal Regency, lying and situated at premises no. 46, Diomond Harbour Road, P.S.-Thakurpukur, Kolkata - 700 063, District - South 24 Parganas within the local limits of Kolkata Municipal Corporation ( KMC) at a total consideration of Rs. 39,74,050/-, subsequently revised to Rs. 40,56,959/- in July, 2010 and Rs. 40,59,032/-.
The assertion of the complainant that he has made payment of Rs. 36,49,193/- as part consideration amount towards the total consideration amount of Rs. 40,59,032/- has acquired support from the contents of the letter issued by the OP No.1. The said letter indicates that out of Rs.40,59,032/-, the complainant has already paid Rs. 36,49,193/- and in the said letter it has been mentioned that including stamp duty, registration fee, maintenance charges a sum of Rs. 8,51,498/- was due and payable by the complainant in respect of his flat being Unit 2D in Block - A measuring 1670 sq.ft.
Needless to say, the parties are bound by the terms of agreement dated 17.08.2010. As per Clause 9.5 of the agreement the developer/builder was under obligation to complete the building and handover the same within 2012 subject to enhancement for another 6 months at the option of sellers. Undisputedly, the developer/builder could not complete the construction within the time frame and on 18.01.2014 asked the complainant to take possession after payment of consideration amount. But the fact remains that the KMC has handed over the Completion Certificate on 11.12.2015. It clearly signifies that the OP No.1 has failed to fulfil their part of obligation in handing over the subject flat within the stipulated period . Therefore, on this ground alone, the developer /builder should be treated as deficient.
Ld. Advocate for the OPs, however has drawn my attention to Clause 11.2 of the agreement which provides - " without prejudice to the provisions of Clause 9.5 above, in the event the sellers failed and /or neglect to deliver possession of the said flat and appurtenances within the extended period, this agreement shall, at the option of the buyer, stands cancelled and/or rescinded upon which the sellers shall refund to the buyer all payment received till that date, with interest calculated at 12% per annum. If the buyer opts not to cancel this agreement, then no interest shall be payable by the sellers".
Referring to the said Clause, Ld. Advocate for the OPs has submitted that the complainant had option to cancel the agreement and to take back the amount of Rs.36,49,193/- alongwith interest thereon @12% p.a. from the payments till its realisation but when the complainant did not opt for cancellation for the agreement, it cannot be said that the OPs are deficient in rendering services.
The fact remains that regarding the allegations of the complainants in respect of alleged deficiencies, no technical person or expert was appointed in accordance with Section 13 (4) of the Act and as such in absence of any such opinion it would not be possible for this Commission to arrive at decision regarding the alleged deficiencies. On the contrary, the Completion Certificate issued by the KMC indicates that the building /construction was done in accordance with the sanctioned plan obtained by the builder from the KMC . Therefore, the allegation in respect of deficiency in the matter of construction does not stand.
However, the factual matrix make it quite clear that the developer has failed to handover the subject property to the complainant within 30.09.2012 and even after extension period of six months i.e. by 30.03.2013. In fact, the Completion Certificate could obtain on 11.12.2015 which signifies there has been a total delay of about 3 years in order to make the flat ready in habitable condition.
The submission of Ld. Advocate for the OPs referring to Clause - 11.2 regarding breach by sellers does not appear to be acceptable. It is common parlance that, in the developer-purchaser agreement the terms are framed by the developers suitable to them. These are unconscionable contracts . The developer has kept an option for cancellation to the buyer on payment of interest @ 12% but it is not possible for an intending purchaser to get a flat of same size in the same area or locality even with an interest of @12% is calculated with the amount advanced as part payment. Moreover, a purchaser use to purchase a flat for having a roof over his head and his claim cannot be thrown out simply by paying interest and payment of interest cannot absolve the responsibility of a developer to handover the flat within the stipulated period. Therefore, the OP No.1/builder must be considered as deficient to keep his promise .
After giving due consideration to the submission advanced by the parties and on perusal on material on record I find that the complainant being a 'Consumer' as defined in Section 2(1)(d) (ii) of the Act hired the services of OP No.1 to purchase of a flat in the complex of OP on consideration and in this regard the complainant has paid almost 90% of the total consideration amount but the OP No.1 is found deficient in rendering services to the complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
In view of the above, the complainant is entitled to relief in part. In my view, considering the facts and circumstances, a direction upon the OPs to execute the deed of conveyance within 30 days after receipt of balance consideration amount will meet the ends of justice. However, as the OPs have failed to keep their promise to deliver the possession within the time frame and in the process they have delayed for about long three years, I think considering the loss suffered by the complainant, a compensation of Rs. 3,00,000/- in the facts and circumstances will meet the ends of justice. Under compelling circumstances, the complainant had to approach this Commission to ventilate his grievances and as such the complainant is entitled to litigation cost which I quantify at Rs. 10,000/-.
Consequently, the complaint is allowed on contest in part. The OPs are jointly and severally directed to deliver possession and to execute the sale deed in favour of the complainant within 30 days from the date subject to payment balance consideration amount. The OP No.1 is further directed to pay compensation of Rs. 3,00,000/- and litigation cost of Rs.10,000/- aggregating RS. 3,10,000/- in favour of the complainant within 30 days from date otherwise the amount shall carry interest @ 9% p.a. from date till its 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