State Consumer Disputes Redressal Commission
Sri Pradip Kumar Saha. vs M/S Bengal Unitech Universal ... on 20 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/64/2010 1. Sri Pradip Kumar Saha. S/o Late B.C. Saha, BD-142, Sector-I, Salt Lake City, P.S. - Nort Bidhannagar, Kolkata- 700 064 (West Bengal). 2. Smt. Alpana Saha W/o. Sri Pradip Kumar Saha, BD-142, Sector-I, Salt Lake City, P.S. - Nort Bidhannagar, Kolkata- 700 064 (West Bengal). ...........Complainant(s) Versus 1. M/S Bengal Unitech Universal Infrastructure Private Limited. Reg.Office-6, Community Centre Saket, New Delhi,Pin-110 017(India)& Regional Office-22, Camac Street, Block-C (4th floor), P.S. Shakespeare Sarani, Kolkata- 700 016(W.B) 2. Mati Satram Das Masand S/o Satramdas Vishandas Masud, 12, Sarvaroya Vihur, New Delhi, Pin- 110 016(India). 3. Mr. Sanjoy Chandra S/o Ramesh Chandra, C/41, Mafair Garden, New Delhi - 110 016 (India). 4. Mr. Prasoon Mukherjee S/o Late Pranabananda Mukherjee, Wisma 40, Kota BNI, 46 Level 34, Suite 3404, JI Jend, Sudhirman Kav 1, Jukarta 10220, Indonesia. 5. The Managing Director, West Bengal HIDCO Salt Lake Stadium - Gate No.3, P.S. - Salt Lake, Kolkata - 700 098 (West Bengal). ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Complainant: Mr. Sanat Sil., Mr. P.R. Sinha Sarkar., Advocate For the Opp. Party: Mr. P. R. Bakshi., Advocate Dated : 20 Feb 2017 Final Order / Judgement Date of Filing - 17.09.2010 Date of Final Hearing - 06.02.2017 PER HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of intending purchasers against the developer company and its Managing Director and Directors (Opposite Party nos. 1 to 4) and against the Managing Director, WB HIDCO (OP no.5) 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 sometime in February, 2007 the Complainants in order to purchase of a flat from the OP no.1 Company in their project at 'Uniworld City Cascades" at Action Area-III, New Town, Kolkata has entered into an agreement with the OP no.1 to purchase a flat measuring about 1475 sq. ft. being Flat No.1102, Tower No.10 at 11th Floor in the Complex known and called 'Cascades' in the 'Uniworld City' for a valuable consideration of Rs.46,64,756/-. The Complainants paid a sum of Rs.4,42,742/- as an earnest money to the OPs. In the payment plan and also in Allotment No.00224 dated 13.02.2007, it was stipulated that all the instalments shall be made by 15.12.2009 being the last and 16th instalment. It was agreed that the possession of the apartment will be handed over within 31.03.2010 subject to 'Force Majeure' circumstances and it is also stipulated that in case of delay, the developer company will make payment of Rs.5-/ per sq. ft. per month beyond the date of possession i.e. from 31.03.2010. The Complainants submit that in compliance with the payment schedule, they have made payment of the sum of Rs.33,96,526/-. On 06.03.2009, the Complainants were told that the delivery of possession of the flat/apartment will be delayed by 12 to 15 months. Being frustrated for the wilful delay to complete the flat/apartment, the Complainants have been compelled to cancel the said Sale Agreement by their letter dated 08.04.2009 through their Advocate calling upon the OPs to refund the amount of Rs.38,97,116/- including interest calculated @12% p.a. till payment. On receipt of the said letter, OPs replied through their solicitor on 23.04.2009 informing the Complainants that they have no right to cancel the agreement. Thereafter, the Complainants have made several correspondences for refund of money but it yielded no result. Hence, the Complainants approached this Commission with prayer for certain reliefs, viz - (a) refund of Rs.33,96,526/- only and interest of Rs.05,39,104/- being interest 12% p.a. till 30.08.2010 and further interest @ 12% p.a.; (b) compensation of Rs.5,00, 000/- and (c) litigation cost of Rs.50,000/-.
The OP nos. 1 to 4 by filing a written version admitted the existence of the agreement and the payment of advanced consideration amount upto 12 instalments but it is stated that as the Complainants unilaterally cancelled the agreement through their legal agent, they are not 'consumer' as defined in Section 2(1)(d) of the Act. The OP nos. 1 to 4 have stated that the construction of the complex was behind schedule by 8 to 10 months and reason for such delay was due to delay in statutory infrastructural provisions pertaining to road, electricity, water, sewerage etc. and as such there is no deficiency in services on the part of them for which the complaint should be dismissed.
The OP no.5 by filing a separate written version has stated that the grievances raised by the Complainants are against the OP nos. 1 to 4 and as such the present OP is not a necessary party as they have no nexus with the Agreement for Sale.
On the basis of contention of the parties, the following points are framed for adjudication;-
Is the complaint maintainable?
Are the Complainants 'consumer' as defined in Section 2(1)(d) of the Act?
Is there any deficiency in services on the part of the OPs?
Are the Complainants entitled to get the relief/reliefs, as prayed for?
In order to prove the case, Complainant no.1 Sri Pradip Kumar Saha has tendered evidence on affidavit on behalf of him and also on behalf of his wife i.e. Complainant no.2, against which questionnaire has been filed by the OP to which reply was given by the Complainants.
On behalf of OP nos. 1 to 4, Sri Rajib Chatterjee, Constituted Attorney of OP no.1has filed evidence on affidavit against which questionnaire has been filed by the Complainants to which reply was given by the contesting OP.
Besides oral evidence, the parties have relied upon some documentary evidence.
On the basis of materials indicated herein above, we shall proceed to discuss how far the Complainants have been able to substantiate their case.
DECISION Point nos.1 to 4:-
All the points are taken up together for the sake of convenience and to skip reiteration.
Admittedly, the Complainants accepted the terms and conditions issued by the OP no.1/developer for allotment of residential apartment measuring about 1475 sq. ft. more or less being No.1102 on 11th Floor of Tower 10 along with one car parking space at the complex 'Cascade' in the Uniworld City at Action Area-III, New Town-Kolkata at a consideration of Rs.47,64,756/-. It is also not in dispute that in accordance with the agreed terms, the Complainants have paid Rs.34,46,526/- + Rs.1,244/-. The said agreement between the parties executed on 15.02.2017 has not been translated into action within the time frame in the agreement and as such on 08.04.2009 the Complainants issued a legal notice to the developer with an intention to cancel the agreement and claimed Rs.38,97,116/- as refund of the amount already paid by them as part consideration amount. Needless to say, in order to obtain a relief under the Scheme of the Act, the Complainant must satisfy that he is a Consumer within the meaning and Section 2(1)(d) of the Act. For proper understanding of the matter, it would be pertinent to reproduce the provisions of Section 2(1)(d) which runs as follows -
"Consumer means any person who -
buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other then the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose".
Explanation:- for the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment".
Section 2(1)(o) of the Act defines 'service' which provides - "Service means of any description which is made available to potential users and includes, but not limited to, the provision of the facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction .......".
Therefore, a person who applies for allotment for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered under the amended provision of Section 2(1)(o) of the Act w.e.f. 08.06.1993.
Mr. Siba Prasad Mukherjee, Ld. Counsel appearing for the developer has submitted that by issuing a legal notice dated 08.04.2009 through their Advocate to the OP no.1 cancelled the said agreement unilaterally and claimed refund of Rs.38,97,116/-. Therefore, as soon as the Complainants have cancelled the agreement, the Complainants ceased to be 'consumer' under the provision of the Act. He has further submitted that the dispute has arisen out of a breach of contract between the parties and as such this Commission has no jurisdiction to entertain the same. In order to substantiate his submission, Ld. Counsel for the developer with the assistance of recorded Advocate has placed reliance to Paragraph - 12 of the decision of Hon'ble National Consumer Commission reported in II (2014) CPJ 705 (Meerut Development Authority - vs. - Manju Gupta).
Mr. Amit Roy Chowdhury, Ld. Counsel for OP no.5 has submitted that the Complainants have not expressed any grievances against the OP no.5 anywhere in the petition of complaint and as such the complaint should be dismissed against OP no.5.
Mr. P.R. Sinha Sarkar, Ld. Counsel for the Complainants, on the other hand, has submitted that the matter should be considered as a whole and not in a piecemeal manner simply basing upon the legal notice dated 08.04.2009. According to him, the OP no.1/developer has not yet refunded a single farthing and as the developer was deficient in rendering services within the stipulated period of the agreement and as there was uncertainity about completion of construction and further the Complainants being an urgent need of a flat, the situation compelled the Complainants to issue such a legal notice and as such the referred decision has no application in the case. The Ld. Advocate for the Complainants has referred several decisions of Hon'be National Consumer Commission like - (1) IV (2015) CPJ 135 (CH. Srinivas - vs. - Mantri Developers Pvt. Ltd. & Ors.); (2) IV (2015) CPJ 128 (Kailash Developers & Ors. -vs. - C.K. Dhananjayan & Ors.); (3) IV (2015) CPJ 25 (Dr. Ramkrishna Vealmati & Anr. - vs. - Maruthi Corporation Ltd. & Anr.); (4) IV (2015) CPJ 418 (Britannia Industries Ltd. -vs. - The State of West Bengal) and (5) IV (2015) CPJ 294 (Emaar M.G.F. Land Ltd. & Anr. - vs. - Dyal Singh).
The Paragraph-12 of the decision referred on behalf of the Complainants in the case of Meerut Development Authority (supra) the National Consumer Commission has observed thus -
"It is manifestly clear from the record that respondent herself had applied for the refund of the amount. In pursuance thereof, she had received a cheque of Rs.52,258/- from the petitioner. Moreover, the cheque had already been encashed by the respondent for more than 12 years ago. However, respondent for reasons best known to her had concealed all the material facts in all the Consumer Fora. Once respondent had claimed the refund amount, then she ceased to be a consumer".
We had an occasion to go another decision of the Hon'ble National Consumer Commission reported in 2015 (1) CPR 299 (Vatika Ltd. -vs.- Mr. K.L. Kaur) in Paragraph-8 of the said case, it has been observed that once complaint has accepted cheque in full and final and final settlement of his claim, he cannot be permitted to reopen the matter by filing consumer complaint.
The facts and circumstances of our case is altogether different. On receipt of the legal notice dated 08.04.2009 the OP no.1/developer replied through their solicitor on 23.04.2009 intimating the Complainants to handover the possession of the flat and ready to pay compensation for delay in accordance with the terms of the agreement. In reply to the same, by a letter through their Advocate dated 02.06.2009, the Complainants sought for a clarification whether the developer should complete the said flat and provide all the amenities as mentioned in the brochure within the delay of 08 to 10 months. On 23.07.2009 the OP no.1 through their solicitor or legal agent has referred that the delay has been caused due to occurrence of 'Force Majeure' event and the compensation would be paid to the Complainants for such delay.
Having heard the Ld. Counsel appearing for the parties and on going through the materials available on the record, we find deficiency on the part of the OP no.1in providing services as required in the instant case. Section 2(1)(g) of the Act defines deficiency which runs thus - "deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner or performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service".
The consecutive replies given by OP no.1/developer through their legal Agent to the Complainants clearly indicates that the OP no.1/developer could not keep his promise in providing the subject flat within the time frame. It is trite law that the parties are bound by the agreements. Both the parties after knowing its pros and cons put their signature. Neither of the parties picked up any dispute as to terms of the agreement. Therefore, the terms of the agreement have binding effect upon the parties. In the case beforehand, the Complainants to show their bonafide as a consumer was going on paying instalments regularly and in the process they have paid more than 75% of the total consideration amount. The OP no.1 disclosed the factum of delay in delivering the possession at a later stage. Though the OP no.1 took a plea of 'Force Majeure' event but has failed to show any circumstances which caused unusual delay in construction of the complex and in this regard, the development of infrastructure appears to be a lame excuse. Therefore, it is quite evident that the OP no.1/developer is deficient in rendering services to the Complainants in accordance with the provision of 2(1)(g) read with Section 2(1)(o) of the Act.
However, we do not find any reason why OP no.5 has been impleaded in this case because no privity of contract exists between the Complainants and OP no.5 and further the Complainants have not prayed for any relief against them.
After giving due consideration of submissions advanced by the Ld. Advocates appearing for the respective parties and on having a close look to the pleadings and the evidence, we are of the view that the Complainants are 'consumer' as defined in Section 2(1)(d)(ii) of the Act and the OP no.1is deficient in rendering the services as per terms of the Agreement either in handing over the subject flat within the time frame or to refund the amount as claimed by the Complainants. Therefore, the Complainants are entitled to an order for refund of the amount already paid by them to the OP no.1 as part consideration amount along with interest thereon because the OP no.1/developer without refunding the amount on the basis of legal notice dated 08.04.2009 invested the same for commercial purpose to earn profit and as such the amount shall carry an interest @ 12% p.a. from the dates of payment till its full realisation. The OP no.1/developer had no intention to end the 'lis' and as such they did not refund the money thereby depriving the Complainants, who have been living in a rented house, to purchase of a flat to have a roof over their head which in turn causes harassment and mental agony for long eight years and as such in the facts and circumstances, we quantify a compensation of Rs.3,00,000/-. The compelling circumstances forced the Complainants to file the complaint and as such the OP no.1must borne the cost of the litigation which we assess at Rs.10,000/-.
In view of the above, all the above four points are decided in favour of the Complainants and disposed of accordingly.
In the result, complaint succeeds in part.
It is, accordingly, ORDERED That the complaint is allowed on contest against OP nos. 1 to 4 and dismissed on contest against OP no.5.
The OP nos. 1 to 4 i.e. developer and its Managing Directors and the Director are jointly and severally directed to refund Rs.33,96,526/- together with interest @ 12% p.a. from the date of receipt till its full realisation.
The OP nos. 1 to 4 are also directed to pay compensation of Rs.3,00,000/- and litigation cost of Rs.10,000/- aggregating Rs.3,10,000/- within 30 days from the date of receipt of order, otherwise the amount shall carry an interest @ 9% p.a. from the date of order till its realisation.
The Registrar of the Commission is directed to send a copy of this order to the parties to the case at once free of cost for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER