SANJAY AGARWAL Vs. ROSEDALE DEVELOPERS PVT. LTD.

JUDGEMENT

(1.) This Consumer Complaint is filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short "the Act"?) by the Complainant against the Opposite Parties seeking the following reliefs:-

(2.) The facts, as stated in the Complaint, in brief are that the second Opposite Party namely West Bengal Housing Infrastructure Development Company Ltd. (for short "the Authority) promoted a scheme for development of a housing complex of around 900 dwelling units/self-contained flats, primarily to be allotted to NRIs up to the extent of a minimum of 75% of the total constructed units in such Housing Complex. It is stated that the land for development of the housing scheme was allotted to Rosedale Developers Pvt. Ltd. (for short "the Developer) by the Authority vide its Memo. No. 3693/HIDCO/Admn.-681/2004 dated 15.09.2005, later on altered by its Memo. No. 4146/Hidco/Admn.-681/2004 dated 22.10.2005. It was agreed vide memo. dated 22.10.2005 that the Developer will develop the project on the terms and conditions mentioned in the said memo. It is averred that as per the terms of the memo. dated 22.10.2005, the Developer was to act as "Developer and Agent"? of the Authority with regard to the construction of the housing complex and sale and allotment of units. On 28.05.2007, the Complainants booked an Apartment in the said project titled "Rosedale Garden Complex"? situated at AA III/Blk-3, District North 24 Parganas, Kolkata, West Bengal. The total consideration of the Apartment as per the provisional allotment letter was fixed at Rs.1,15,93,240/-, out of which the Complainants paid the booking amount of Rs.5,74,235/-. An Allotment letter dated 28.05.2007 was issued to the Complainants and possession was promised within 36 months from the date of letter i.e. by 28.05.2010. However, the Developer failed to deliver the possession on time and the same was delivered only on 04.05.2015 i.e. after approximate delay of 5 years. It is stated that there has been inordinate delay in handing over possession of the Apartment. As per clause 9.1 of the terms and conditions annexed with the provisional Allotment Letter, the Apartment was to be handed over maximum within 36 months of the provisional allotment i.e. by 28 May, 2010. It was submitted that the Complainants via email have addressed Developer on multiple occasions but same was of no avail. The Developer offered possession of the Apartment after nearly 5 years of delay, i.e. on 1" May, 2015. Even as on May, 2015, the Complainants Apartment was not ready and the Developer's claim that the Apartment is ready for possession was only a "sham" aimed at luring the Complainants into paying the balance consideration. It is further submitted that the Apartment's built up area is only a part of the total built up area that was agreed between the Complainants and the Developer and Authority. That the Complainants' apportioned share of the common areas was still under construction. Therefore, the offer of possession of the Apartment issued by the Developer was pre mature as common areas were completed only in October, 2015 when the Completion Certificate of the building and the other common areas was received. Despite that inordinate delay the project was not completed by the Developer. Developer never offered any reasonable justification for the inordinate delay of nearly 5 years in completing construction and handing over possession of the Apartment. It. is submitted that there was no firm commitment by the Respondents towards handing over timely possession of the Apartments and the delay is intentional so that funds collected from allottees of the project can be diverted to Developer' other commercial gain. It is stated that there were many irregularities in the flat and in the project.

(3.) It is stated that as per Clause 9.1 of the terms and conditions in the event of delay in handing over of possession of the Apartment, the Developer would be liable to pay compensation in the form of interest @ 6% p.a. for the period of delay. It is submitted that the calculations annexed with the final demand letter for possession had no mention of the compensation promised to be paid to the Complainants in the form of interest @6% per annum. However, as the Complainants had already paid 95% of the total sale consideration and the possession of the Apartment was finally being offered to the Complainants after a delay of 5 years, the Complainants forthwith made the entire payment via Demand Draft attached with a letter dated 4th May, 2015 under the impression that the Apartment and the project is complete, without prejudice to their rights to claim adequate compensation for the inordinate delay in handing over possession of the Apartment. Complainants made various telephonic requests to the Developer to honour its commitment to pay compensation for delay but of no avail. Complainants sent letters dated 28.09.2015 and 17.11.2015 to the Developer describing the discrepancies in construction and sought for rectification. The Developer responded vide letter dated 21.12.2015 but failed to address their concerns and on the contrary the said letter contained baseless allegations. The Developer also made unlawful changes in layout of the Apartment and the project.