Shyamal Bandopadhyay vs Ruchi Realty Holdings Limited

IA/11004/2022 has been filed by the opposite party for condoning the delay in filing the evidence.  IA is allowed.  Evidence is taken on record.

Heard counsel for the parties.

Shyamal Bandopadhyay has filed above complaint for directing the opposite parties to refund Rs.12264457/- with interest @18% per annum from 30.10.2013 till the date of payment; to pay Rs.one crore, as compensation for diminution of value; to pay Rs.5000000/-, as the compensation for mental agony and harassment; cost of litigation and any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that RRHL Realty Limited (opposite party-1) was a company registered under the Companies Act, 1956 and Mahakosh Property Developers (opposite party-2) was a partnership firm. The opposite parties were engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. In the year 2013, the opposite parties advertised for the project in the name of “Active Acre”. On coming to know about the aforesaid project, the complainant who was in need of residence, made inquiry from the opposite parties in respect of features and price etc. After settlement on consideration etc., both the parties entered into an agreement for sale dated 30.12.2013 for Unit –G in Tower-II of the project “Active Acre”. As per Clause 5.1 of the Agreement, possession has to be delivered till 30.06.2015, unless prevented by force majeure as defined in Article XII of the Agreement, with grace period of six months. The complainant paid Rs.12264457/- i.e. about 98% of sale consideration at the time of agreement. However, the opposite parties were not able to complete the construction and deliver possession to the complainant, till 30.06.2016. The complainant, therefore, gave a legal notice to the opposite parties on 13.02.2018. After service of notice, opposite parties sent reply notice dated 13.02.2018 in which they stated that due to force majeure reasons, they were not able to complete the construction on due date of possession as mentioned in the agreement. Then, this complainant was filed on 03.08.2018.

Both the opposite parties have filed their separate written reply on 14.06.2019. In which the material facts relating to the project as well as Agreement for Sale executed between the parties dated 30.12.2013 in respect of Unit –G in Tower-II of the project “Active Acre” and payment made by the complainant have not been disputed.  However, the opposite parties took the plea that due to force majeure reason the construction could not be completed within time and as per Clause 5.1 Read with Clause 12 of the agreement, the period for which the construction was delayed due to force majeure reason was liable to be extended.

The complainant filed Rejoinder Reply and Affidavit of Evidence of Shyamal Bandopadhyay. The opposite parties filed Affidavit of Evidence of Shivam Asthana. Both the parties have filed their documentary evidence as well as written synopsis.

We have considered the arguments of the counsel for the parties and examined the record. Clause 5.1 of the Agreement provides due date of possession as 30.06.2015, unless prevented by force majeure as defined in Article XII of the Agreement, with grace period of six months. Due date of possession and grace expired on 30.06.2016. But, the construction could not be completed nor occupation certificate has been obtained by the opposite parties till today. As such there is unreasonable delay in handing over possession and there is deficiency in service on the part of the opposite parties.

The opposite parties pleaded force majeure reasons. We find that only due to notice dated 27.11.2015 issued by State Level Environment Impact Assessment Authority, Kolkata, by which, the opposite parties were directed to stop construction activities, the construction was stopped for a period of six months few days. As State Level Environment Impact Assessment Authority filed a criminal complaint for violating environmental law against the opposite parties which resulted in acquittal by the order dated 06.05.2016. Apart from it various other reasons were also mentioned as force majeure reason but in written replies, the opposite parties did not take plea that the construction was stopped on the spot due to other force majeure reasons. Even if, six months’ time is extended, there is inordinate delay in not completing the construction and delivery of possession. It is well settled law that the complainant cannot be made to wait for unlimited period for possession. In the circumstances, the complainant is entitled for refund of his money.

So far as arguments of the counsel for the opposite parties that the complaint is barred by limitation, as stated above, the complaint was filed on 03.08.2018. There was nothing on record that right of the complainant either for possession or refund was ever denied by the opposite parties, as such cause action for filing the complaint would the date on which notice dated 13.02.2018 was served upon the opposite party. Therefore, it is not established that the complaint was barred by limitation.

ORDER

In the result, the complaint is partly allowed. The opposite parties are directed to refund the entire amount deposited by the complainant along with interest @9% per annum from the date of deposit till the date of actual payment, within a period of two months from the date of this judgment.