National Consumer Disputes Redressal
M/S. Orchid Developers Pvt. Ltd. & Anr. vs Uttam Kumar Majumder on 11 July, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1028 OF 2018 (Against the Order dated 17/04/2018 in Complaint No. 192/2015 of the State Commission West Bengal) 1. M/S. ORCHID DEVELOPERS PVT. LTD. & ANR. 9/12, LAL BAZAR STREET, 3 FLOOR, BLOCK-C, P.S. HARE STREET KOLKATA 700 001 WEST BENGAL 2. MR. BASAB DAS GUPTA M/S. LAVANYA PROJECTS PVT LTD SANTINIKETAN BUILDING, 8, CAMAC STREET, 12FLOOR, ROOM NO B-2, P.S SHAKESPEARE SARANI KOLKATA 700 017 WEST BENGAL ...........Appellant(s) Versus 1. UTTAM KUMAR MAJUMDER S/O. BASUDEB MAJUMDER, SODEPUR ROAD, BANIKIPALLY (W) P.O. MADHYAM GRAM NORTH 24 PGS KOLKATA 700 129 WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER
For the Appellant : Mr. Sanjoy Kumar Ghosh, Advocate For the Respondent :
Dated : 11 Jul 2018 ORDER
The present First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short "the Act") has been filed by the Opposite Parties in the complaint against the order dated 17.04.2018, passed by the State Consumer Disputes Redressal Commission West Bengal, Kolkata (for short "the State Commission") in CC No.192 of 2015.
2. The respondent / complainant had filed a complaint alleging that agreement for sale was entered into with the appellant / opposite parties on -2- 11.03.2011 for the purchase of the flat measuring 1150 sq. ft. of super built up area, flat No.3A on the 3rd Floor, Block No.6 and a covered car parking space on the ground floor in the building named 'Lavanya' situated at Mouza-Basina Gram, P.S. Rajarhat, District-North 24 Parganas for a consideration of Rs.19,55,000/- @ Rs.1700/- per sq. ft for the flat and Rs.2,50,000 on account of covered car parking, thus aggregating to sum of Rs.22,05,000/-. It was the case of the complainant that though he had paid the sum of Rs.21,51,044/- i.e. 95% of the total consideration amount to the developer, the possession was not given within the stipulated period of 24 months from the date of execution of the agreement.
3. The case of the appellants before the State Commission was that they could not deliver the possession of the flat within the stipulated period due to Force Majeure, which clause was part of the agreement. It happened due to the circumstances beyond their control as electricity power was not supplied by WBSEDCL in time and so the project could not be completed within time. It is contended that the State Commission has not appreciated the facts of the case in correct perspective and failed to appreciate the fact that failure to give possession within 24 months was beyond the control of the appellant. There was no intentional deficiency on the part of the appellants. It is prayed that impugned order be set aside and complaint be dismissed.
4. I have heard the arguments and perused the impugned order and the documents placed on record. Admittedly, the agreement for sale was dated 11.03.2011 and possession was to be delivered within 24 months from the date of execution of the agreement with grace period of six months on -3- account of Force Majeure. Accordingly, in terms of agreement, possession was to be delivered and registration of deed of conveyance was to be executed by 10.03.2013. However, since there was no communication from the appellants, the respondent sent demand notice on 24.03.2015 asking the appellants to hand over possession and execute sale deed and also to pay interest @ 18%. This fact clearly shows and is not denied that till the filing of the complaint, flat was not constructed and possession was not given. The State Commission in its order issued the following directions:
"(i) The opposite parties shall complete the construction of the flat and car parking space to deliver possession and to execute the deed of conveyance of the same in favour of complainant by 31.07.2018 as per terms of the agreement dated 11.03.2011;
(ii) The opposite party no.2 is directed to pay compensation in the form of simple interest @ 18% p.a. from the committed date of possession ( inclusive of six months grace period) i.e. from 11.09.2013 till the date on which the possession will be delivered to the complainant in terms of this order;
(iii) The opposite parties shall pay a sum of Rs.10,000/- as cost of litigation to the complainant;
(iv) The balance amount payable by the complainant shall be adjusted by the OPs out of the compensation payable to them in terms of this order."
5. This further shows that till the date of order i.e. 17.04.2018, the appellants had failed to complete the construction and hand over possession of the flat to the respondent. The fact clearly shows that for almost seven years, the appellants had failed to fulfil their part of the obligation under the agreement for sale.
-4-6. The only contention of the appellants is that they could not complete the construction because of non supply of electricity by WBSEDCL and in the absence of supply of electricity, project could not have been completed. It is submitted that supply of electricity was the prerogative of WBSEDCL and hence it was beyond their control and thus clause 16.1 in Article XIV comes into operation which deals with the Force Majeure showing circumstances which were beyond the control of the appellants and which prevented the completion of the project.
7. The same contention had been raised by the appellants before the State Commission as well. The State Commission has duly considered those contentions and held as under:
"The OPs took a plea of Force Majeure circumstances. Ld. Advocate for the OP has given emphasis to Clauses (f) and (i) of Clause 16.1 relates to Force Majeure. Ld. Advocate for the OP has submitted that due to non-supply of electric connection by WBSEDCL, there has been delay in handing over possession. However, he could not through any light as to how the disturbance in the locality arose for which construction could not be completed. In a question by complainant, as to whether they could deliver the possession of the property in time? on behalf of OPs it was replied - "At present, we could deliver the possession". Strangely enough, the OPs did not take any pain to issue any letter or Notice of Possession as per terms of the agreement. In another question please specify the date you actually deposited the amount to the WBSEDCL to which it was replied - "yes, 13.12.2010." However, the documents available with the record speak that on 06.12.2012 the developer had applied for connection of electricity in the project and the amount was deposited only on 22.02.2014 much later than the stipulated date of delivery of possession. The developer / builder has failed to show that they took any initiative earlier to obtain -5- electric connection. Moreover, the OPs did not take seek any legal remedy in order to get electric connection within the stipulated period of time from WBSEDCL."
8. Facts noted in the impugned order clearly shows the falsity of the contention of the appellants. They were to complete the project within 24 months and they claim non completion of the project due to the non supply of electricity by WBSEDCL Their own documents clearly show that they applied for the electricity on 06.12.2012 but deposited the amount for the said purpose only on 22.02.2014 i.e. beyond the stipulated date of delivery of possession. Counsel for the appellants has failed to point out any illegality or infirmity in the findings of the facts. Nothing has been placed on record to contradict these findings of fact. The plea of Force Majeure taken by the appellants is of no consequence, and has no merit. It infact is not available to them. Moreover, as per the terms of the agreement, the grace period for completion of construction and hand over possession was six months on account of Force Majeure and the Appellants have failed to complete the construction even in seven years. The appeal has no merit and is liable to be dismissed in limine.
9. The Consumer Protection Act, 1986 has been enacted by the Legislature to help the consumers from exploitation in the hands of unscrupulous service providers. It is incumbent duty of the Commission to ensure that Act is implemented not only in letter but also in spirit. It is, therefore, the duty of the Commission to ensure that consumers are not being harassed by false, frivolous and meritless litigations and they get speedy -6- justice. The object of the Act loses its purpose if the Court permits meritless litigations and allow the exploitation of the consumer. The consumers are also consumers of justice and it is the paramount duty to protect their rights and nip all such litigations including appeal or revision in bud. To discourage such efforts against consumers, it is essential that heavy costs be imposed. In this case despite the fact that document of the appellants shows that money for connection of electricity to WBSEDCL was deposited on 22.02.2014 (as noted by the State Commission in its order), they wrongly stated to the Commission that they had deposited the amount with WBSEDCL on 13.12.2010 while actually it was done as per the document on 22.02.2014. This conduct of the appellants is reprehensible. Even before this Bench, the appellants insisted that electricity was not supplied to the project, which delayed the completion of project beyond two years, knowing very well that plea Force Majeure was not available to them and that their plea was rejected by the State Commission in view of document on record, they had filed. The present appeal, which on the face of it, is meritless.
10. I, therefore, while dismissing the present appeal in Limine, impose a cost of Rs.25,000/- on the Appellants which shall be deposited with Consumer Legal Aid Account-NCDRC within four weeks from the receipt of the copy of this order.
......................J DEEPA SHARMA PRESIDING MEMBER