Sudip Ahluwalia, Member

This Consumer Complaint has been filed by the Complainant under Section 21 of the Consumer Protection Act, 1986 alleging deficiency in service and unfair trade practice on the part of the Opposite Parties in relation to a residential Villa booked in the project developed by them.

2. It is the case of the Complainant that she had booked one Golf Villa bearing No. "GB-04", consisting of Ground and First Floor, having a total built-up area of 4882 sq. ft., together with land measuring 11 Cottahs 03 Chittaks 09 sq. ft., along with parking facilities and other amenities, situated at Mouza Chandpur Chapagachi, P.S. Rajarhat, District North 24-Parganas, West Bengal.

3. An Agreement for Sale dated 30.04.2013 was executed between the Complainant and the Opposite Parties. The Opposite Party No.1 is a Private Limited Company and Opposite Parties No. 2 to 5 are its Directors. As per the Agreement for Sale, the total sale consideration of the said Villa was fixed at Rs. 1,40,00,000/- (Rupees One Crore Forty Lakhs only). The Complainant has contended that the entire consideration amount was duly paid to the Opposite Parties in accordance with the schedule of payment mentioned in the Complaint. Article 9(a) of the Agreement for Sale stipulates that possession of the Villa was expected to be delivered within 15 months from the effective date of the Agreement, with an additional grace period of six months. The date of signing of the Agreement to Sale i.e., the effective date of the Agreement being 30.04.2013, the Opposite Parties were obligated to hand over possession of the Villa within the stipulated contractual period. However, despite receipt of the entire consideration amount, the Opposite Parties failed to deliver possession of the said Villa to the Complainant.

4. The Complainant issued a letter dated 03.12.2018 requesting the Opposite Parties to hand over possession and execute the Conveyance Deed in respect of the said Villa. Thereafter, a Legal Notice dated 16.02.2019 was issued through Ld. Counsel calling upon the Opposite Parties to deliver possession and complete the registration formalities. Despite service of the said Notice, the Opposite Parties failed to respond or comply with the contractual obligations.

5. The Complainant therefore filed the instant Complaint in which she has prayed inter-alia for directing the Opposite Parties to hand over possession of the Unit/Villa in question to her, and also to execute and register its Deed of Conveyance in her favour apart from seeking certain other ancillary reliefs, and also an alternative relief in directing the Opposite Parties to refund the consideration amount paid by her to them alongwith interest @ 18% p.a.

6. Notice of the Complaint was duly served upon the Opposite Parties. However, despite service of Notice and several opportunities, the Opposite Parties failed to file their Written Version within the statutory period prescribed under the Consumer Protection Act. In view of the settled position of law, failure to file Written Statement within the statutory period results in closure of the right to file the same and the averments made in the Complaint remain unrebutted. In the present case, after granting several opportunities, the right of the Opposite Parties to file Written Statement was closed vide Order dated 04.03.2020.

7. Evidence by way of Affidavit was filed by the Complainant; and also by the Opposite Party Nos. 1-3 on behalf of the Opposite Parties.

8. Heard Ld. Counsel for Complainant and the Opposite Parties, and perused the material available on record.

9. Ld. Counsel for the Complainant submitted that the Complainant had paid the entire sale consideration of Rs.1,40,00,000/- to the Opposite Parties. It was argued that the Opposite Parties were contractually bound to deliver possession within 15 months with six months grace period, but failed to do so. Ld. Counsel submitted that the Opposite Parties themselves had undertaken to pay interest @18% per annum in case possession was not delivered within the stipulated period. It was further submitted that despite repeated requests and issuance of Legal Notice, the Opposite Parties did not deliver possession. Ld. Counsel pointed out that the Opposite Parties did not file their Written Statement within the statutory period and therefore the allegations made in the Complaint remain unrebutted. It was therefore contended that the conduct of the Opposite Parties amounts to deficiency in service and unfair trade practice, entitling the Complainant to refund along with contractual interest.

10. Ld. Counsel appearing for the Opposite Parties contended that the Complaint is barred by limitation as the possession was allegedly due in July, 2014 and the Complaint was filed in 2019. It was further argued that the Complainant is not a Consumer but an Investor who booked the Villa for speculative purposes. Ld. Counsel also submitted that construction of the Villa was completed in the year 2017 and the Complainant had requested for an alternative Villa in the project. It was contended that the Opposite Parties are willing to offer possession of an alternative Villa subject to payment of applicable charges. It was also argued that the claim for compensation and interest @18% per annum is excessive and unsupported by evidence.

11. The following issues arise for consideration:

                          i. Whether the Complaint is barred by limitation.

                          ii. Whether the Complainant is a 'Consumer' under the Act. iii. Whether there is deficiency in service on the part of the Opposite Parties. iv. Whether the Complainant is entitled to refund and interest.

12. The Opposite Parties have raised the plea that the Complaint is barred by limitation. However, it is well settled that failure to deliver possession of a housing Unit constitutes a continuing cause of action. The Hon'ble Supreme Court in "Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, (2020) 18 SCC 613", held that delay in handing over possession gives rise to a continuing cause of action. In the present case, possession has not been delivered till date. The Legal Notice dated 16.12.2019 sent by the Complainant to the Opposite Parties is placed on record (Page No. 63 of Evidence Affidavit of the Complainant). Therefore, the Complaint cannot be held to be barred by limitation.

13. The Opposite Parties contended that the Complainant is an Investor. No material has been placed on record to substantiate this allegation. This Commission in "Kavita Ahuja Vs. Shipra Estate Ltd., (2016) 1 CPJ 31 (NC)"; held that the burden to prove speculative purchase lies on the Developer. In the absence of any evidence, the Complainant must be treated as a 'Consumer'.

14. It is not in dispute that the Agreement for Sale was executed on 30.04.2013. It is also not in dispute that the entire sale consideration of Rs. 1,40,00,000/- has been paid by the Complainant. Despite receipt of the entire amount, the Opposite Parties have failed to deliver possession. Such conduct clearly amounts to deficiency in service.

15. The Hon'ble Supreme Court in "Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725"; held that a homebuyer cannot be compelled to wait indefinitely for possession. Similarly, in "Fortune Infrastructure Vs. Trevor D'Lima, (2018) 5 SCC 442"; the Hon'ble Supreme Court held that in cases of inordinate delay, the Allottee is entitled to seek refund.

16. It is also pertinent to note that the Opposite Parties themselves issued a communication dated 19.08.2013, wherein under Clause (e) and (g) (Page No. 54 of the Complaint/Paper-Book) it was specifically stated that in the event of failure to offer possession within the stipulated period, the Opposite Parties would compensate the Complainant by paying interest @ 18% per annum on the consideration amount. Thus, the rate of 18% interest forms part of the contractual obligations voluntarily undertaken by the Opposite Parties themselves. Once such a contractual commitment has been made by the Developer, the same becomes binding and enforceable. It is well settled that failure of a Builder to deliver possession of a residential Unit within the stipulated period constitutes deficiency in service. The Hon'ble Supreme Court in "Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, (2019) CPJ 29 (NC)"; held that where the Builder fails to deliver possession within the agreed time, the Allottee is entitled to seek refund of the entire deposited amount with reasonable interest. Similarly, in "Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan" (supra), the Hon'ble Supreme Court held that a homebuyer cannot be made to wait indefinitely for possession and is entitled to refund with interest where there is unreasonable delay. In "DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda & Ors., (2020) 16 SCC 318"; it was reiterated by the Hon'ble Supreme Court that where the Builder fails to perform its contractual obligations, refund with interest is an appropriate and just relief. Further, in "Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, (2022) 15 SCC 286"; summarised and distinguished in "Suneja Towers (P) Ltd. Vs. Anita Merchant, (2023) 9 SCC 194"; the Hon'ble Supreme Court observed that Developers cannot retain the hard-earned money of homebuyers without delivering the promised property. In view of the long delay and the contractual undertaking, the Complainant is entitled to refund of the amount along with interest @18% per annum.

17. From the material placed on record, it stands established that -

                          i. The Complainant paid the entire sale consideration of Rs. 1,40,00,000/-.

                          ii. The Opposite Parties failed to deliver possession within the agreed period.

                          iii. Even after expiry of several years, possession has not been handed over.

                          iv. The Opposite Parties failed to contest the Complaint by filing Written Version.

18. In view of the foregoing discussion, the Complaint deserves to be allowed. The conduct of the Opposite Parties clearly amounts to deficiency in service within the meaning of the Consumer Protection Act. Considering the long delay and the fact that possession has not been delivered till date, the Complainant cannot be compelled to wait indefinitely. In the facts and circumstances of the present case, refund of the deposited amount along with interest would meet the ends of justice. Since the Opposite Parties themselves agreed to pay interest @18% per annum in case of delay, the Complainant is entitled to the same rate of interest.

19. Accordingly, the Complaint is allowed with the following directions -

                          a. The Opposite Parties shall refund to the Complainant the entire amount of Rs. 1,40,00,000/- deposited by her;

                          b. The said amount shall carry interest @18% per annum from the respective dates of deposit till realization;

                          c. The Opposite Parties shall comply with the above directions within eight weeks from the date of receipt of this Order;

                          d. In case of failure to comply within the stipulated period, for any outstanding amounts payable to the Complainant, the interest rate shall be enhanced to 21% per annum, till the date of final realisation.

                          e. The Opposite Parties shall also pay Rs. 50,000/- as litigation costs to the Complainant.

20. Pending application(s), if any, also stand disposed off as having been rendered infructuous.