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Judgment
Heard Mr. Chandrachur Bhattacharyya, Advocate, for the complainants and Mr. Rabin Majumder, Advocate, for the opposite parties.
Sixteen sets of the home buyers of the project “Dream Palazzo” have filed above complaint, for directing the opposite parties to (i) deliver possession of the flats allotted to the flat buyers, complete in all respect as per specifications with promised amenities and facilities and execute conveyance deed in their favour; (ii) pay delayed compensation in the form of interest @24% per annum on the deposit of the flat buyers, for the period, possession was delayed; (iii) provide all the promised facilities and amenities at the time of handing over possession of their flats; (iv) pay additional compensation in the form of interest @18% per annum on the deposit of the flat buyers for the period, possession of the promised facilities and amenities are delayed; or in alternative, in case of non-provision of the promised amenities and facilities, pay Rs.1000000/- to each of the flat buyers; (v) refund the amount realized in the head of car parking space with interest @18% per annum; (vi) refund the amount realized on account of service tax with interest @18% per annum; (vii) pay Rs.1000000/- as compensation for mental agony and harassment; (viii) pay Rs.2000000/-, to each of the flat buyer as punitive damages; (ix) costs of litigation; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.
Leave under Section 12(1)(c) of Consumer Protection Act, 1986, for filing the complaint in representative capacity has been granted on 03.05.2018. Thereafter, notices were published in newspapers as required under Section 13 (6) of Consumer Protection Act, 1986. Then through IA/3807/2019 and IA/16256/2019, three sets of flats buyers were impleaded. Later on some of the complainants were permitted to be withdrawn.
The complainants stated that opposite parties formed an association in the name of “Dream Projects” and launched a group housing project in the name of “Dream Palazzo” at Ward No.2, of Rajarhat-Gopalpur Municipality, district North 24 Parganas, West Bengal in the year 2011 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite parties, each of the complainants booked one residential flat in above project. Later on, the agreements were executed during 2011-2012 between the parties. Clause-8.2 of the agreement provides payment plan as “construction linked payment plan”, in which an amount was payable before execution of the agreement, 20% including application money was payable on execution of the agreement, 10% was payable on completion of foundation, 10% each was payable on completion of 1st, 2nd, 3rd, 4th and 5th floor respectively. 10 % was payable on completion of brickwork, 5 % on completion of flooring and the balance 5 % was payable 7 days prior to possession. The opposite parties were required to raise demand of the instalments. Clause-9.5 of the agreement provides 30 months period from the date of commencement of construction as “completion time” with six months as “extended period”. The opposite parties commenced construction work in January, 2011 and collected 90% of total sale consideration from both Megha Meshram and Dipika Majumdar up to 04.08.2012 and 03.10.2012, respectively. As commencement of construction was in January, 2011, 30 months’ time period expired in July, 2013 and further period of 6 months expired in January, 2014 but the opposite parties miserably failed to hand over the possession of the flats till January, 2014. The opposite parties are guilty of rendering deficient services to the complainants. The payment plan is a “construction linked payment plan” wherein the opposite parties was entitled to demand money on completion of various level of the construction work. After collecting money at different level of the construction as per payment plan, the opposite parties have no excuse for not handing over possession of the flats by January, 2014. This position is confirmed by the admission made by the opposite parties in its e-mail dated 22.09.2015 wherein the opposite parties have admitted that the work in “Dream Pallazzo” had never stopped. The opposite parties have been sending regular reports/communications to the buyers with repeated assertions that construction was progressing well and on schedule and never intimated the complainants of any delay in the progress of construction activity which was beyond their control. Surely if there was any delay which was beyond the control of the opposite parties, the said delay would have been informed to the complainants in these regular communications mails, which was not the case. Therefore, it is clear that the opposite parties have no just and bona-fide reason to justify the delay in handing over possession of the flats to the complainants. The opposite parties intentionally started offering possession of the flats in an incomplete state without even the promised basic facilities and amenities in the advertisements, brochure and the agreements. There is no electricity connection and the lifts are also not in a functional state. Out of 16 complainants belated possession of the flats minus the amenities and facilities has been offered to all 16 complainants after a huge delay of more than 2 years and in some cases 3 years. Most of the complainants have not accepted possession of the apartments till date since basic amenities like permanent electricity supply from WSSES electric line, water supply etc. are not available. Some of them accepted possession under protest. The opposite parties have also charged from each of the complainants an amount of Rs.3/- lakhs to Rs.3.5 lakhs approximately, illegally towards car parking space which they have sold. Then, this complaint was filed on 12.04.2017, alleging unfair trade practice.
The opposite parties filed their written reply on 04.09.2018 and contested the complaint. The opposite parties stated that the project “Dream Palazzo” consisted of total 10 Blocks and 175 flats. While this complaint was filed by 15 sets of the flat buyers. Even after publication of the notice only few flat buyers were got themselves impleaded. From which, it is proved that only few buyers and not numerous buyers have any grievance against the opposite parties. Deepak Sharma (complainant-14), through letter dated 03.11.2017, informed the opposite parties that he had never instructed Mr. Chandrachur Bhattacharya, Advocate for filing instant complaint on his behalf and he obtained conveyance deed no.11788 of 2017, of the flat allotted without protest. Manish Kumar, Abhisekh Goenka and Nitin Agrawal (complainants-3, 9 and 15) took possession of their flats. Prior to filing of this complaint none of the complainants raised any grievance against the opposite party or gave any notice in this respect. All the complainants booked their flat in different Blocks, at different time, their agreements are of different dates, sizes of flats are different and there is no sameness of the interest between them. The opposite parties have completed the construction of the project in all respect and municipal authority has issued completion/occupation certificate on 21.07.2014. After completing other formalities, the opposite parties, started issuing emails to the buyers from April, 2016 to clear the dues and take possession. Substantial amounts are due against the complainants. In spite of issue emails of offer of possession, they are neither clearing their dues nor taking possession. It has been denied that the construction of the flat and amenities were not completed nor the electricity connection, water connection and sewerage connection were provided in the flats of the complainants on the date of offer of possession. The complainants have never raised any protest against offer of possession before the opposite parties or in respect of any incomplete construction or amenities and facilities. In order to avoid balance payment and gain time for it, this complaint has been mala fide filed. Commencement of construction of different blocks was at different time. The instalment payable on competition of foundation was raised by the opposite parties in August, 2011 as such the date of commencement of construction cannot be made in January, 2011. In January, 2011 none of the complainants have entered into agreement with the opposite parties. Clause 9.5 of the agreement provides for completion of construction within 30 months from the date of commencement of construction with grace period of six months which is liable to be extended. These 36 months completed in August 2014 while, the competition/occupation certificate was obtained on 21.07.2014 which was before the date of commencement of construction. The opposite parties were provided a car parking space and separate charge has been stipulated in this respect in the agreements of the home buyers. Judgment of Supreme Court in Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd. (2010) 9 SCC 536 has no application in the present case. After about six years of the agreement, the contention that the opposite parties have illegally realised amount for car parking space is not liable to be accepted. The alleged legal notice dated 11.09.2017 has not been signed either by the complainants or by their Advocate, as such, no reliance can been placed on it. The complainants have filed mala fide complaint to harass the opposite parties which is liable to be dismissed.
The complainants filed rejoinder reply on 14.10.2019 in which various facts stated in the complaint were reiterated. They stated that the home buyers have raised their protest in respect of electricity problem, sewerage/drainage problem and maintenance of society to the opposite parties on 28.04.2018 from which it is proved that the basic amenities were not complete on the date of offer of possession. Some of the allottees took possession reserving their right to the common amenities like lift, driveway, swimming pool, electricity and DG set etc. The complainants sought for Information under Right to Information Act, 2005 from the statutory authority, reply was supplied on 28.01.2017 from which also, it is proved that the project was not complete in all respect on the spot. Various communications between home buyers and opposite parties show that the project was incomplete on the spot.
The complainants filed Affidavit of Evidence of Sandeep Chaudhary and documentary evidence. The opposite parties filed Affidavit of Evidence of Prem Lal Jain and documentary evidence. Both the parties have filed their short synopsis of arguments.
The counsel for the opposite parties, relying upon judgment of Supreme Court in Brigade Enterprises Limited Vs. Anil Kumar Virmani, (2022) 4 SCC 138, submitted that permission under Section 12(1)(c) of the Consumer Protection Act, 1986 could not be granted in the present case, inasmuch as all the complainants were allottees of different tower and they entered into agreement with the opposite parties at different time. Some of the allottes have made payment while, some of the allottees were still making payments of the instalments, therefore, there was no sameness of interest amongst them. At the most it can be treated as joint complaint of 16 complainants. The permission under Section 12(1)(c) of the Act, has already been granted on 03.05.2018 after hearing the parties. The Dictionary meaning of “interest” as given in Black’s Law of Dictionary is “the word collectively includes any aggregation of rights, privileges and immunities”. In the present case, all the complainants are claiming for possession over the flats allotted to them with delayed compensation and other consequential relieves. Thus, all of them were interested in the same right of possession and delayed compensation, as such, it cannot be said that there is no sameness of interest, only for the reason that they were allotted flats in different tower on different times.
We have considered the arguments of the counsel for the parties and examined the record. Admittedly, the payment plan was “constructed linked payment plan” under which the home buyers are required to make payment at various level of construction. The complainants have filed statement of account of Megha Meshram (complainant-1). A perusal of statement of account shows first demand on “completion of foundation” was raised on 28.12.2011. The agreement in favour of Megha Meshram itself was executed on 16.04.2011. In the agreement, it has been stated that building plan was sanctioned on 09.02.2011. Therefore, it is incorrect to say that “commencement of construction” was January, 2011. The statement of
However, possession was offered to the complainants in April, 2016 onward. Thus, there was delay in offer of possession and the complainants are entitled for delayed compensation from January, 2015 till the date of offer of possession. In Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, just delay compensation would be interest @6% per annum on the deposit of the home buyer from due date of possession till the offer of possession.
So far as allegation of the complainants that electricity, water and sewerage connections were not at the time of issue of occupation certificate on 21.07.2014, are concerned, no evidence in this respect has been adduced by the complainants. Issue of completion/occupation certificate on 21.07.2014 is prima facie proof that the building was complete and fit for occupation at that time. The complainants on the basis of certain e-mails between the parties tried to allege that the basic amenities were not in existence, even at the time of offer of possession. In none of these emails electricity, water and sewerage connections in flats were disputed.
Relying upon the judgment of Supreme Court in Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd. (supra), it has been argued that car parking charges has been illegally realised, but this judgment has been distinguished by Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512. Service tax have been realised under the law and there is no illegality in this respect.
The counsel for the complainants relying upon the judgment of Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, argued that where full payment was made and possession was delivered, but title deed is not executed without any justifiable cause the allottee may be awarded compensation for harassment and mental agony. In this case, the opposite party has stated that all the complainants are defaulters and liable to pay the dues and some of them has paid dues during pendency of the complaint and took possession. Therefore, there was a justification of the opposite parties for not executing the conveyance deed. Dues against the complainants as stated by the opposite parties are given below:-
Client’s Name
Interest
Maint. (Till March)
With GST
Megha Meshram-Sougata Bhunia
92060 (Due)
158257
50026
Sandip Choudhury
42084 (Due)
225966
71429
Manish Kumar
93416-80k (Paid)
108413
56509
Jhumoor Biswas Khamrai
78736 (Due)
223518
70657
Dipika Majumder
33912 (Due)
4
Dinesh Dhanuka
159324 (Due)
228413
72203
Sanjay Kumar Santuka ®
11664-8059 (Paid)
2
Sanjay Kumar Santuka ®
11554-7979 (Paid)
4
Abhishek Goenka
72495 (Due)
10498
Hemendra Karmakar ®
3472-Full Waived
162976
47566
Jitendra Kumar ®
56772/40k (paid)
89023
48852
Susmita Seal
85948 (Paid)
2
Nitin Agarwal
29728 (Due)
225966
71429
Arjit Das-Swati Sen
37446/35k (paid) 71429
225966
71429
Rana Kar
45067/54594 (Paid)
147592
53492
Vijay Sinha
79792 (Due)
10668
Gateway Forex (P) Ltd ®
90851 (Waived)
11176
ORDER
In the result, the complaint is partly allowed. The opposite parties are directed to issue fresh statement of account giving delay compensation to the complainants in the form of interest @6% per annum from January, 2015 till the date of offer of possession, on their deposits, within six weeks from the date of this judgment. The opposite parties shall charge interest @9% per annum on its dues from the date of offer of possession till the date of statement of account is fresh prepared. If due date of possession varied according to the agreement of the complainants and it comes after January, 2015, then for that complainants delay compensation will be counted from due date of possession as per his agreement till the date of offer of possession. If any amount is payable by the opposite parties after adjusting the delayed compensation then it shall be paid along with statement of account. If even after adjusting the delay compensation any amount is payable by the complainants, then they will be given at least six weeks’ time to clear their dues. On settlement of the account, the opposite parties shall execute conveyance deed in favour of complainants and hand over possession of the flat allotted to them without any further delay.