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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Mr. Durgadas Purokayasta, Advocate, for the appellant, Mr. Maibam N. Singh for Respondent No.1 and Ms. Sudipta Bose for respondents Nos.4 to 8.
Above appeal has been filed against the order of West Bengal State Consumer Disputes Redressal Commission, Kolkata, dated 30.01.2014, partly allowing Consumer Complaint No.86 of 2009.
Mr. Subhrajit Das (the appellant) filed CC/86/2009, for directing the respondents to (i) deliver possession of the flat and car parking area and execute sale deed as per agreement; (ii) pay the balance compensation money as shown in Schedule “W”. OR (a) alternatively refund the entire advance money received and pay damages; (b) pass any other order as Hon’ble Commission thinks fit and proper; and (c) award the litigation cost to the complainant.
It is the case of the complainant that he entered into an agreement with opposite parties 1 and 2 for purchase of a flat. The tripartite agreement between the complainant, developers and the land owners was executed on 21.07.2005 for purchase of flat No.2B, 2nd Floor, Block-II, measuring 1132 sq. ft. situated at 91/9, Bosepukur Road, Ward No.91, KMC, Kolkata, P.s. Kasba, District South 24-Parganas. The cost of the flat was Rs.14,01,800/-, out of which the complainant paid Rs.12,61,933/- to opposite parties Nos.1 & 2. The complainant also paid Rs.2,46,000/- in cash and Rs.50000/- through cheque for doing additional work and Rs.5,660/- as advocate’s fees. Therefore, the complainant paid a total sum of Rs.15,63,593/-. The opposite parties promised that possession of the flat would be given within the time stipulated in the agreement. Opposite Party No.2 contacted the complainant and told him that at the request of the land owner the flat of the complainant has been locked by the Officer Incharge, Kasba Police Station. The complainant met the Officer Incharge and requested him to handover the key so as to enable him to take possession of the flat and car parking in pursuance of the allotment letter dated 10.05.2007 issued by opposite parties 1 & 2 but he refused to handover the keys to the complainant. Opposite party No.2 informed the complainant that the land owners filed civil suit No.TS 52/2007 wherein injunction order has been passed on 28.09.2007 restraining the promoters from handing over possession of the flats to the purchasers during the pendency of the suit. Therefore, the complainant sought refund of the amount from the opposite parties. Opposite Party No.2 informed the complainant that they have filed an appeal in the High Court against the injunction order dated 28.09.2007 passed in the civil suit and also filed writ petition No.1131/2007 against the police authorities for unauthorisedly locking the four flats. The complainant filed an application being CAN 9069/2007 for arraying him as a party in the appeal filed by the opposite parties. The complainant also filed separate appeal No.FMAT 2944/2007 against the injunction order dated 28.09.2007. The High Court disposed of the application as well as the appeal filed by the complainant, vide order dated 05.02.2009 and granted liberty to the complainant to take legal steps against the promoters and land owners and the order passed by the civil court would not prevent him from taking any legal action against the promoters and the land owners. Thereafter, the complainant issued legal notice dated 25.03.2009 to the opposite parties to perform their obligations under the agreement. Despite that, neither possession was handed over nor sale deed was executed in favour of the complainant. This led to filing of the consumer complaint No.86 of 2009 with the State Commission.
Opposite Parties 1 & 2 (developers) filed the written version stating that by an injunction order passed by the Civil Court, they were restrained from handing over possession to the complainant. In appeal, the High Court also directed to maintain status quo with regard to the possession. Thus, there was no deficiency in service on the part of opposite parties 1 & 2.
Opposite party No.3 filed its separate written version stating that it has no role to play in delivery of possession of the flat and car parking and also there is no cause of action against it.
Opposite parties 4 to 8 (land owners) also filed their separate reply stating that they were not aware of the transaction between the complainant and the developers. Opposite Party No.1 was trying to transfer the owners’ share to a third party. Therefore, they were compelled to file a civil suit. The land of flat and the car parking space was in the share of the owners. There was no deficiency on their part.
In compliance of the order of the State Commission, the opposite party has given a cheque dated 09.04.2024 of Rs.25,34,833/- which has been accepted by the complainant. The opposite party has given the details of the cheque which has been deposited by the complainant. Considering the amounts of the cheques as given by the complainant, the State Commission has found that total amount of Rs.12,61,933/- has been paid by the complainant. The complainant states that in addition to the aforesaid amount, Rs.2,60,000/- have been paid through cash and Rs.50,000/- through cheque. The amount paid in cash has not been accepted by the opposite party. The complainant could not give any evidence to prove the cash amount. So far as the amount of Rs.50,000/- is concenred, the complainant has not filed any evidence to show that the said cheque was encashed by the opposite party. Therefore, finding of the State Commission in respect of the amount paid by the complainant does not require interference by this Commission.
The counsel for the complainant relied upon the judgment of the Supreme Court in Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor, 2022 AIR 22 (SC) 1824 and submitted that the interest was payable from the date of respective deposits. However, the State Commission has directed for payment of interest from the date of filing of the complaint. We found that out of Rs.12,61,933/-, the complainant has been paid Rs.25,34,833/- within a span of about 8-9 years. Since the interest awarded by the State Commission is not as per the judgment of the Supreme Court in Experion Developers Pvt. Ltd. (supra), therefore, we do not find any justification to award the interest from the date of deposit in the present case inasmuch as sufficient amount has been refunded by the opposite party to the complainant.
The counsel for the appellant has relied upon West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 and submitted that the above enactment provides 25% interest. Therefore, the complainant was entitled for interest @ 25% p.a. In any case, the contractual interest rate was 24% p.a., which was not liable to be reduced. So far as provisions of West Bengal (Building Regulation) Act, 2017 are concerned, a perusal of the Act shows that in the year 2003 the rate of interest has been deleted and substituted with the bank rate of interest. So far as contractual rate of interest is concerned, we are deciding the case in the light of Section 73 74 of the Contract Act where in the case of refund the compensation cost of the other side has to be reimbursed. The Supreme Court in Experion Developers Pvt. Ltd. (supra) has held that 9% interest in case of interest is a just compensation which amounts to statutory and compensatory both. Therefore, the demand of interest above to it is not admissible. The appeal is liable to be dismissed.
ORDER
In view of aforesaid discussions, the appeal is dismissed.