Mita Majumder & Anr vs Sreesree Partha Sarathi Developer & Anr

The present Appeal is filed against the interlocutory order in IA/231/2022 dated 06.04.2022 passed by State Consumer Disputes Redressal Commission, West Bengal, Kolkata (in short State Commission’) Consumer Complaint No.496/2018 whereby the State Commission allowed the application.

Alongwith the First Appeal, IA/5173/2022, an application for condonation of delay of 5 days has also been filed. However, as per computation done by the Registry, there is a delay of 24 days. For the reasons stated in the application and in the interest of justice, IA/5173/2022 is allowed and delay condoned.

Case of the Appellants/Complainants is that they booked flat No.2A on second floor, Block B measuring 1019 sq. ft. super built up area and a car parking space with Opposite Party No.1/Builder, for a total consideration of Rs.51,37,400/, by paying an advance of Rs.1,00,000/-. On 18.11.2015, the Appellants and Opposite Party No.1 entered into a tripartite agreement whereby the Appellants paid an amount of Rs.14,41,220/- i.e. approximately 85% of the total consideration. As per agreement, possession of the flat was to be delivered upto 30th January, 2017, failing which Opposite Party No.1 was to pay a penalty of Rs.10,000/- per month till the date of possession. The Appellants/Complainants made total payment of Rs.42,43,813/- by availing a home loan of Rs.20 lakhs from the State Bank of India. On 08.12.2017, Opposite Party No.1 sent a letter demanding further payment. The Complainants visited the premises and found that most of the construction work was not completed and even the plumbing work was also not completed even after expiry of due date of possession. In the first week of January, 2017, Opposite Party No.1 handed over a draft deed of conveyance to the Appellants. The said deed contained arbitrary, unilateral and completely one sided clauses. The Appellants sent a legal notice dated 31.05.2018 seeking refund of the entire amount. Opposite Party No.1, vide reply dated 20.06.2016 refused to refund the amount. Alleging deficiency in service on the part of the Opposite Parties, the Complainants filed a Consumer Complaint before the State Commission with the following prayer: -

a) Pass an ad-interim ex-parte order restraining the Opposite Parties from creating any third party interests in the said Schedule flat till the pendency of the Complaint;

b) Pass an ad-interim ex-parte order restraining the Opposite Parties from carrying on construction in contravention to the Sanction Plan No.2014010042 dated 08.07.2014 till the pendency of this Complaint;

c) Pass an order, issuing notice upon the Opposite Parties;

d) Pass an order holding the Opposite Parties liable to have committed deficiency in service and unfair trade practices;

e) Pass an order directing the Opposite Parties to refund the amount of Rs.42,43,813/- along with 18% interest on the same from the date of each payment;

f) Pass an order directing the Opposite Parties to pay the amount which the Complainants have paid and continue to pay the Bank as interest on the loan they had availed along with 18% interest on the same from the date of each payment;

g) Pass an order directing the Opposite Parties to pay compensatory costs of Rs.5,00,000/- towards the mental harassment, agony and inconvenience caused to the Complainants who are elderly citizens;

h) Pass an order directing the Opposite Parties to pay compensatory costs of Rs.1,00,000/- towards the loss of opportunity of the Complainants, as they were unable to sell their independent house and move into the flat due to the delay in handing over possession of the flat;

i) Pass an order directing the Opposite Parties to pay Rs.2,00,000/- as the cost of litigation; and

j) Pass any other order this Hon’ble Commission deems fit in the facts and circumstances of the case.”

The Complaint was contested by the Opposite Parties by filing the written statement. It is relevant to mention that during the pendency of the Consumer Complaint, Opposite Party No.1/Developer filed IA/231/2022 with the State Commission seeing permission to refund the amount to the Complainants after selling the flat booked by them. The State Commission, vide impugned order dated 06.04.2022, allowed the interim application. Interim order dated 06.04.2022 reads as follows: -

“In view of the above, OP No.1 is directed to deposit the amount of Rs.40 lakhs in this Commission after entering into the agreement with third party. But the execution and registration of the said flat can be conducted only after depositing the total amount paid by Complainant along with interest as per current bank rate.

Accordingly, IA/231/2022 is allowed and disposed of.

Fix 28.06.2022 for showing receipt after depositing the amount in this Commission.”

Aggrieved by the order dated 06.04.2022, the Appellants/Complainants have filed the instant First Appeal.

Heard the Learned Counsel for the Appellants and carefully perused the record. Learned Counsel for the Appellants/Complaints submitted that during the pendency of the Complaint, the State Commission could not have permitted Opposite Party No.1 to sell the flat. The impugned order is in violation of various judgments of Hon’ble Supreme Court. The State Commission erred in permitting Opposite Party No.1 to create third party right despite payment of approximately 85% by the Complainants. It was submitted that the flat buyer cannot be made to wait for indefinite period for possession of the flat. Opposite Party No.1 failed to deliver possession of the flat even after expiry of due date of possession. Even Opposite Party No.1 had not filed the completion certificate before the State Commission. Learned Counsel further submitted that Opposite Party No.1 is also trying to delay the matter before the State Commission. They have not even filed their affidavit evidence. Till date no effective hearing has taken place before the State Commission.

The main prayer of the Appellants/Complainants was for refund of the deposited amount. The Complainants also sent a legal notice dated 31.05.2018 to Opposite Party No.1 seeking refund of the deposited amount. The Complainant had sought refund of the deposited amount with 18% interest. Also the Complainants in the prayer sought orders restraining Opposite Party No.1 from creating any third party right. In the IA/231/2022, the Complainants also raised objection regarding selling/transferring of the flat before refund of consideration amount. As far as refund is concerned, we find that vide impugned order dated 06.04.2022, the State Commission had secured the right of the Complainants by directing Opposite Party No.1 to deposit the amount of Rs.40 lakhs in the State Commission. The Complaint has not been finally decided and listed for 28.06.2022 before the State Commission. Regarding the issue of sale of the property in question, the Complainants cannot be permitted to seek refund and also not let Opposite Party No.1 to generate resources to make the refund. The State Commission directed Opposite Party No.1 to sell the property in question and deposit Rs.40 lakhs with the State Commission. The impugned order dated 06.04.2022 is only an interim order and the Complaint is still pending on the main relief of refund of amount alongwith interest among others.

We so no infirmity or irregularity in the impugned order. The Appeal is, therefore, dismissed with no order as to cost.