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Judgment
Heard Mr. Rameezuddin Raja, Advocate for the appellans.
M/s Vedic Conclave Private Limited, Mr. Uday Modi and Mr. Raj Kishore Modi, M/s Vedic Conclave Pvt. Ltd. (the opposite parties-1 to 3) have filed above appeal against order of State Consumer Disputes Redressal Commission, West Bengal, dated 22.12.2022, passed in Consumer Complaint No.637 of 2018, allowing the complaint ex-parte and directing the appellants to refund the amount of Rs.2409337/- to the complainant with interest @ 6% p.a. from 26.06.2014 till the realization with litigation cost of Rs.50000/-.
According to the office report, the appeal has been filed with a delay of 48 days. However, according to the appellants, there is a delay of 89 days and they have filed IA/5366/2023 for condonation of delay. It is stated that the counsel who represented the appellants in the State Commission was suffering from illness and it took time to find an appropriate counsel in Delhi. The appellants applied for certified copy of the impugned order on 01.03.2023 which was supplied to them on 15.03.2023. Due to aforesaid reasons, delay of 89 days in filing the appeal occurred. Cause shown does not seem to be sufficient. However, in the interest of justice, IA/5366/2023 is allowed and delay condoned.
Appellant No.1 (Opposite party No.1) is the developer and appellants 2 & 3 its Directors. Respondents 1 & 2 (complainants) are flat buyers. Respondent No.3 (Opposite party -4) is a company, who is the land owner and respondents- 4 to 8 are its Directors. Respondent-9 (Opposite party-10) is also a company and co-owner of the land and respondents- 10 to 13 are its Directors. Respondent-14 (opposite party-14) is also co-owner of the land. Complainants came to know through an advertisement that opposite party No.1 was developing a project in the name of “Sanjeeva Orchard”, Mouza Thak Dari, P.S. New Town, Kolkata. The complainants, vide application dated 16.04.2014 booked a flat in the project for a consideration of Rs.7790400/- and deposited booking amount of Rs.515450/- vide cheque No.056362 dated 16.04.2014. Opposite party No.1 allotted unit No.5A, 4th floor in the project, vide allotment-cum-payment schedule letter dated 17.04.2014. Construction of the flat was to be completed within 30 months from the date of the agreement with a grace period of 6 months. The complainants made payment of Rs.2409337/- including the service tax. Even after expiry of considerable period, the opposite party did not start the construction. The complainant visited the office of appellant No.1 as well as the construction site and found that the construction has not commenced. Therefore, the complainants requested appellant No.1 for refund of the amount deposited by them. Opposite party No.1 asked the complainants to transfer the booking of the complainants to a new project “SNJEEVA ORCHARD PREMIUM” and, vide letter dated 04.09.2015 allotted flat No.A3, 9th floor, Block-A with two car parking spaces and one servant quarter. The consideration amount of the new flat was Rs.9704700/-. The complainants sent email dated 11.04.2016 to opposite party No.1 asking for timeline of completion of the project, which was not responded. Thereafter, the complainants made several correspondences in that regard, but nothing was done. On 01.02.2018, opposite party No.2 sent an email to the complainants that their earnest money would be refunded in three instalments on 20.02.2018, 20.03.2018 and 20.04.2018, but the opposite parties failed to adhere to their promise for refund of the amount. On 01.05.2018, the complainants sent legal notice seeking refund of the amount with interest and compensation. Then complaint No.637 of 2018 was filed by the complainants.
Opposite parties- 1 & 2 contested the complaint by filing the written statement. As none appeared on behalf of the opposite parties, the State Commission allowed the complaint ex parte with the direction as mentioned above.
We have considered the arguments of the counsel for the appellant and examined the record. Initial allotment of the flat on 17.04.2014, thereafter transfer of allotment vide letter dated 04.09.2015 and the amount deposited by the complainants are admitted. Possession of the flat was to be delivered within 30 months with a grace period of 6 months. It is also not disputed that the appellants failed to commence the construction of the project even after expiry of the promised period. So far as contention of the appellants that complainants failed to make the payment as per schedule is concerned, it is clear from the allotment letter dated 17.04.2014 that payment plan was a construction linked plan. It is not the case of the appellants that they made the construction and issued demand letter. In absence of any demand letter from the appellants, the complainants are not expected to make further payment and that too without commencement of the construction work. The appellants failed to fulfil their obligation by completing the construction and delivering the possession to the complainants. Supreme Court in Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., (2018) 5 SCC 442, held that a person cannot be made to wait indefinitely for possession of the flat allotted to him/her, and is entitled to seek refund of the amount paid by him, along with compensation. As far as argument of the appellants that the complainants are not consumers as they have booked the flats for commercial purpose is concerned, Supreme Court in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, observed that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/flats in his normal course of business to earn profits, shifts to the Opposite Party, which the appellants have failed to discharge by filing any evidence. The State Commission has rightly allowed the complaint holding the appellants guilty for deficiency in service. We do not find any illegality or infirmity in the impugned order and the appeal deserves to be dismissed.
ORDER
In view of the aforesaid discussions, the appeal is dismissed.