Central Concrete And Allied Products Ltd vs Prabir Sen Gupta

This appeal has been filed under section 19 of The Consumer Protection Act, 1986 in challenge to the Order dated 25.10.2019 of the State Commission in complaint no. 388 of 2017.

We have heard the learned counsel for the appellants (the ‘builder co.’) and for the respondent (the ‘complainant’). We have also perused the record including inter alia the State Commission’s impugned Order dated 25.10.2019 and the memo of appeal.

The matter relates to a builder-buyer dispute. Briefly, the complainant paid a total sum of Rs.10,62,418/- on 11.08.2010 and 13.08.2010 to the builder co. as part consideration for a residential flat. The builder co. however did not even commence the construction of the project within any reasonable time. After waiting for years together the complainant started making repeated requests for refund of his deposited amount. His advocate eventually sent a notice on 11.01.2017 for refund of the deposited amount along with interest at the rate of 10% per annum. The builder co. neither gave any reply to the notice nor refunded the amount. The complainant then filed a complaint before the State Commission on 23.05.2017. The State Commission vide its impugned Ordered dated 25.10.2019 ordered the builder co. to refund the amount of Rs. 10,62,418/- along with compensation in the form of simple interest at the rate of 10% per annum from the dates of payment i.e. from 11.08.2010 and 13.08.2010 till realisation. It also awarded Rs. 10,000/- as cost of litigation.

We note that the State Commission appears to have passed a well appraised and reasoned Order, it appears to have aptly dealt with the issues germane in the matter. On the face of it itself this appears to be an open-and-shut case in which admittedly the builder co. obtained a sum of Rs. 10,62,418/- from the complainant but did not even commence construction of the project within any reasonable period. It did not refund the money nor give any compensation / interest thereon. The State Commission has endeavoured to remedy the wrong by way of ordering refund of the deposited amount and awarding interest at the rate of 10% per annum thereon for the period during which it was unjustly retained by the builder co.

Learned counsel for the builder co. submits that the builder co. could not start construction of the project because the requisite approvals from the concerned authorities could not be obtained. Submission is that the construction of the project could not start due to extraneous factors not within its control and as such the delay was due to force majeure.

We may however observe that prior to, or, at the least, simultaneous to, getting the consumer to enter into its agreement and accepting the first payment towards the total cost of the subject unit, the builder co. was required and expected to have the due pragmatic and realistic assessment and preparation of the project planning. Planning, execution and completion were the builder co.’s responsibility, and not of the consumer; (normal) impediments or problems that may arise in planning, execution and completion were again its own responsibility, and not of the consumer. Specifically, availability of land, as well as all approvals from the concerned government, development and municipal authorities, as and when due, being fundamental basic requirements of a housing construction project, were decidedly to be taken care of and dealt with by the builder co. Non-fulfilment of its overall responsibilities of project planning, execution and completion can not be and are not grounds for condoning or overlooking delay in commencement or completion. All-encompassing blanket plea of force majeure, unforeseeable circumstances, irrespective of its various ‘liberal’ or ‘strict’ interpretations, and irrespective of its various interpretations in different sets of facts, cannot be irrationally contended and argued as omnibus defence for anything and everything related to the builder co.’s failure to fulfil its responsibilities for commencing and completing the project without occasioning time or cost overruns. Here, in the present case, even the commencement of construction itself did not take place for an inordinately delayed period. The factum of unduly and wrongly retaining the consumer’s money is writ large, and the plea of force majeure raised in defence deserves to be rejected being meretricious and specious both.

There can be no two opinions that the builder co. was dutybound to refund the amount it had obtained from the complainant. Regarding the compensation provided by way of interest at the rate of 10% per annum on the deposited amount for the period for which it was prejudicially retained by the builder co., in the overall facts and circumstances of the case the same appears to be quite reasonable and justified and there is no good reason forthcoming to disturb it, the compensation granted by the State Commission appears to be commensurate with the loss and injury suffered by the complainant.

The appeal, being wholly bereft of worth, stands dismissed.

The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is requested to upload this Order on the website of this Commission immediately.