BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
KOLKATA UNIT-II
|
8-B,
NELLIE SENGUPTA SARANI, 7TH FLOOR, |
|
KOLKATA-700087. |
Consumer Complaint no. CC/45/2022.
In
the matter of :
Mrs. Piya
Sengupta, & Anr.
______Petitioners
-
Versus
–
M/s. Riverbank
Developers Private Limited, & Anr.
________Opposite Parties
Brief Notes of
Argument
On behalf of
The
Petitioners
Facts Surfaced
by the Petitioners;
1.
The
facts of the case, in brief, are that the complainant was supplied with an
application form having Serial No. 242831, at cost of Rs. 200/- ( Rupees Two
Hundred ) only, requiring them to fill it up and to submit the same giving full
particular and details of the intending purchaser having prescribed GENERAL
TERMS & CONDITIONS. He was told that option for availing car parking space
must be taken at the time of submitting allotment application and the price for
the Flat and Car Parking space shall be fixed according to the option taken by them.
The Complainants was asked to pay a sum of Rs. 50,000/- ( Rupees Fifty Thousand
) only, for application money or allotment money, which the complainants
applied jointly and consequently paid such sum of Rs. 50,000/- ( Rupees Fifty
Thousand ) only, in favour of Riverbank Developers Private Limited, towards
application money and the same was paid by them at the time of submitting the
said application for allocation of
allotment.
2.
The
Complainants were allotted Apartment No. 12A1 on the 12th Floor,
Tower No. 14, at Hiland Greens by electronic draw. Complainants were informed
that the consideration price of the flat with open car parking shall be Rs.
23,70,000/- ( Rupees Twenty Three Lakhs and Seventy Thousand ) only, and a sum
of Rs. 25,000/- ( Rupees Twenty Five Thousand only, has to be paid for
Maintenance Corpus Deposit which has to be paid by several installments as per
Payment Schedule mention in the General Terms and Conditions ( GTC ). After
allotment of the flat the Complainants was asked to pay allotment money as of
Rs. 2,86,460/- ( Rupees Two Lakhs and Eighty Six Thousand and Four Hundred
Sixty ) only, and the Complainants were informed that the “Application Money of
Rs. 50,000/- ( Rupees Fifty Thousand ) only, already paid by them shall form a
part of the allotment money as specified in the Payment Schedule.
3.
By
aforesaid representation the Complainants were made to understand that they
have to pay a sum of Rs. 23,70,000/- ( Rupees Twenty Three Lakhs and Seventy
Thousand ) only, As consideration for the Flat and Car parking space allotted
to them including Rs. 25,000/- ( Rupees Twenty Five Thousand ) only, for
Maintenance Corpus Deposit and no other money. Therefore the total sum being
consideration as of Rs. 23,70,000/- ( Rupees Twenty Three Lakhs and Seventy
Thousand ) only. As per demand made in the payment schedule provided, the
Complainants paid a sum of Rs. 23,42,761/- ( Rupees Twenty Three Lakhs and
Forty Two Thousand and Seven Hundred Sixty One ) only, and further sum of Rs.
5,000/- ( Rupees Five Thousand ) only towards being charges for open car
parking to covered car parking.
4.
The
Complainants made payments to the Opposite Parties for allotted Apartment No.
12A1 on the 12th Floor, Tower No. 14, at Hiland Greens, with covered
car parking in the following :
|
Sl. No. |
Date |
Particulars |
Amount |
|
01 |
03-11-2014 |
MR-01369/2014 |
50,000/- |
|
02 |
09-01-2015 |
MR-REC-0002/01927/14-15 |
2,86,461/- |
|
03 |
17-01-2015 |
REC0002/02018/14-15 |
40,000/- |
|
04 |
30-03-2015 |
REC0002/03166/14-15 |
3,91,947/- |
|
05 |
05-05-2015 |
REC0002/03645/15-16 |
1,80,000/- |
|
06 |
22-05-2015 |
REC0002/03917/15-16 |
1,77,723/- |
|
07 |
03-11-2015 |
REC0002/05495/15-16 |
1,10,536/- |
|
08 |
19-04-2016 |
REC0002/08805/16-17 |
2,30,382/- |
|
09 |
24-08-2016 |
REC0002/11482/16-17 |
2,18,928/- |
|
10 |
23-09-2016 |
REC0002/12241/16-17 |
2,18,928/- |
|
11 |
15-11-2016 |
REC0002/12994/16-17 |
2,18,928/- |
|
12 |
17-01-2017 |
REC0002/13834/16-17 |
2,18,928/- |
|
13 |
21-08-2017 |
For open car
parking to covered car parking |
5,000/- |
|
14 |
|
TOTAL |
23,47,761/- |
( Rupees
Twenty Three Lakhs and Forty Seven Thousand and Seven Hundred Sixty One ) only.
5.
The
Complainants paid Rs. 23,47,761/- ( Rupees Twenty Three Lakhs and Forty Seven
Thousand and Seven Hundred Sixty One ) only, as per Demand raised by the opposite
parties and whereas a substantial period of 42 months has been expired though the
respondents did not deliver the physical possession of the flat and
consequently did not execute and register the Deed of Conveyance in favour of the
Complainants.
6.
It
is pertinent to states that the despite the period of 42 months for delivery of
possession of the allotted flat has expired, the O.P. company failed to
delivered the possession of the flat & car parking and or to register the
Deed of Conveyance and or to withdraw the allotment although the Complainants
on several occasion opted for the option specifically mentioned in the General
terms and conditions ( GTC ).
7.
Persistently
from the facts and circumstances depicted hereinabove it appears that the
respondent company is involved in restrictive trade practices by bringing about
manipulation of price and by deviating from terms and conditions for delivery
of flat and car parking space as mentioned in the general terms and conditions
( GTC ), and it has been done in such a manner as to impose unjustified cost
and restriction upon the complainants. The respondent company has also adopted
unfair means of trade practices for the purpose of promoting the sale, use and
delivery of possession of the flat and car parking spaces by making false and
misleading representation concerning the need for or the usefulness of the
services to be rendered by the respondent company.
8.
The
Complainants seek to get Physical possession & Registration of apartment
no. 12A1, on the 12th Floor, HG2 – Tower – 14, at Hiland Greens
Phase II with covered car parking.
9.
Finding
no other alternative recourse the complainants were constrained to issue a
notice dated 2nd day of December’ 2021, through his Learned Advocate
Ashok Kumar Singh, upon the opposite parties demanding Physical possession
& Registration of apartment no. 12A1, on the 12th Floor, HG2 –
Tower – 14, at Hiland Greens Phase II with covered car parking. The said notice
was dispatched and sent through Speed Post at the respective address of the
opposite parties. Despite receipt of the said notice the opposite parties
failed and neglected to redress the grievances of the complainants. Hence the
instant consumer complainants resort before the Hon’ble Consumer Disputes
Redressal Commission Kolkata Unit - II.
10. The
Complainants relied on the following Documents;
(a) Copy of Letter
of allotment dated 08-12-2014, Schedule of Cost and Charges & Payment
Schedule, Tax Invoice;
(b) General Terms
and Conditions (GTC);
(c) Money
Receipts;
(d) Email
Communication by the Respondents, on April 3, 2019;
(e) Email
Communication by the Respondents, on 15th July, 2020;
(f)
Legal
Notice by the Complainants, dated 2nd day of December’ 2021, with
postal receipts & postal track reports;
Facts Surfaced
by the Opposite Parties;
11. The Opposite Parties appeared in the above
referred Consumer Case, on receipt of notice given by the Hon’ble DCDRC Kolkata
Unit – II. The Opposite Parties submitted their Written Version in the Consumer
Case stating inter alia that the instant application is strictly barred by
limitation. As per Section 69(1) of the Consumer Protection Act, 2019,
therefore the Hon’ble Commission cannot admit a complaint that has been filed
after the expiry of two years from the date of cause of action. Thus in the
instant case, even if it is assumed without admitting the same that the cause
of action arose on November 3, 2014, as alleged in para 23 of the complaint,
two years from the alleged date of cause of action would end in November 3,
2016, but the instant Complaint has been filed much later in 2022.
12. That it is especially relevant to highlight
that in the instant case, the Complainants had committed a delay of 62 (sixty
two) days in payment of the first installment, 13 (thirteen) days in payment of
the second installment, 10 (ten) days in payment of the third installment, 2
(two) days in payment of the fourth installment, 3 (three) days in payment of
the sixth installment, 5 (five) days in payment of the seventh installment, and
other minor delays. Therefore, the Complainants had made a total delay of 98
(ninety eight) days in making payment of installments. Owing to such delay, a
total interest of Rs. 15,439/- (Rupees Fifteen Thousand Four Hundred and Thirty
Nine Only) has accrued under Clause 11 of the GTC, and consequently, a payment
of Rs. 13,287/- (Rupees Thirteen Thousand Two Hundred and Eight Seven Only) has
been made towards such interest.
13. The Opposite
Parties stated about the circumstances during the period of COVID-19, and the
provisions related to the force majeure, etc.
14. The Opposite Parties relied on the following
Documents;
(a) Form “B’ of
WBHIRA;
(b) Order dated
29/05/2020, by WBHIRA;
(c) Form – 3,
Certificate for Extension of Registration of Project, dated 15/10/2020, by
WBHIRA;
(d) Email
Communication dated June 26, 2021, regarding force majeure;
(e) Interest
ledger;
(f)
Letter
dated 23/09/2020, without any postal receipt and postal track report;
Submissions on behalf of the Petitioners;
15. The fact of the Complainants has not been
challenged by the Opposite Parties. The Opposite Parties did not deny the facts
given by the Complainants. The Opposite Parties did not deny the receipt of the
payment made by the Complainants. The Opposite Parties are silent on the Legal
Notice served on them by the Complainants.
16. The Opposite
Parties raised their contentions about the Cause of action stated in the
contents of the paragraph number 23 of the petition of Consumer Complaint of
the Complainants. Pertinently, the Cause of Action arose at First threshold, on
03-11-2014, while the Complainants made their payments towards application
money for allotment as of Rs. 50,000/- (Rupees Fifty Thousands) only. By Letter
dated 08-12-2014, the opposite parties confirmed the allotment for the
complainants, providing the GTC, Tax Invoice, Schedule of payments, etc. Thus
thereafter, in compliance of the Payment Schedule, the Complainants made their
payments to the Opposite Parties, and thereby the last payment has been made
only on 21-08-2017. The GTC, states about the delivery of possession within a
period of 42 (Forty Two) months from the date of allotment of the apartment, in
Clause 11(a), therefore the said 42 (forty two) months from the date of
allotment dated 08-12-2014, would be come as 08-06-2018 (8th day of
June’ 2018), and by an email communication dated April 3, 2019, the opposite
parties communicated to the Complainants placing their sincere apologies for
not being able to start construction of Hiland Greens as was committed by them.
The opposite parties appreciate that the complainants are distressed by the
inordinate delay in the handover of their apartments. Thereafter in the month
of March’ 2020, unprecedented pandemic COVID-19 spread out in the Country,
which took much enlarged period in normalizing and the post COVID-19 situation started
normalization probably since the month of March’ 2021. Thereafter the
Complainants send their Legal Notice asking for delivery of possession of their
allotted apartment, by way of their Advocate’s Letter dated 2nd day
of December’ 2021, which the Opposite Parties were in receipt as appeared from
the Postal Track Report; But did not even answer the said Legal notice of the
complainants. Persistently the Cause of Action meaning thereby a Bundle of
facts, and the accrual of cause of action standing as the compelling
circumstances in which the Petitioners come before the Hon’ble DCDRC Kolkata
Unit – II, resorting themselves for their reliefs, so far. The given facts
clearly shows the case in hand have the continuing cause of action till the
delivery of the allotted apartment to the complainant. Therefore the contention
about the cause of action by the opposite parties are not acceptable well in
the prescribed provisions of Law as enumerated under Section 69 of the Consumer
Protection Act’ 2019. The contention is that not only the cause of action is
continuing but is also alive.
17. Regarding the delayed payment and accrual of
interest no communication has ever been given by the opposite parties to the
complainant by email on any occasion, whatsoever. The Letter dated 23/09/2020,
has never been served on the Complainants, which has been cited by the opposite
parties. The said letter has not been followed by any postal receipt and track
report, so far, being the materials to show that the said letter has been ever
served on the complainants, therefore presumably, the said letter dated
23/09/2020, is a manufactured document in the line of defense of the opposite
parties. However in the contents of delayed payment and interest thereon it has
been stated by the Opposite Parties that a total interest of Rs. 15,439/-
(Rupees Fifteen Thousand Four Hundred and Thirty Nine Only) has accrued under
Clause 11 of the GTC, and consequently, a payment of Rs. 13,287/- (Rupees
Thirteen Thousand Two Hundred and Eight Seven Only) has been made towards such
interest, therefore a sum of Rs. 2,152/- is lying due on such purported account
of interest.
18. The
Opposite Parties stated about the circumstances during the period of COVID-19,
and the provisions related to the force majeure, etc. which is not applicable
in the case in hand as By Letter dated 08-12-2014, the opposite parties
confirmed the allotment for the complainants, providing the GTC, Tax Invoice,
Schedule of payments, etc. Thus thereafter, in compliance of the Payment
Schedule, the Complainants made their payments to the Opposite Parties, and
thereby the last payment has been made only on 21-08-2017. The GTC, states
about the delivery of possession within a period of 42 (Forty Two) months from
the date of allotment of the apartment, in Clause 11(a), therefore the said 42
(forty two) months from the date of allotment dated 08-12-2014, would be come
as 08-06-2018 (8th day of June’ 2018), and by an email communication
dated April 3, 2019, the opposite parties communicated to the Complainants
placing their sincere apologies for not being able to start construction of
Hiland Greens as was committed by them. The opposite parties appreciate that
the complainants are distressed by the inordinate delay in the handover of
their apartments.
Conclusion;
The Petitioners are
entitled to get relief in terms of their prayer made in the petition of
Consumer Complaint.
Judicial
Precedent Cited;
Shashwato
Chakraborty – Versus – Riverbank Developers Private Limited and Others.
Complaint Case No. CC/186/2018, decided on 17th August’ 2023, by the
Hon’ble State Consumer Disputes Redressal Commission, West Bengal.
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