Samaresh Prasad Chowdhury, Presiding Member
1. The instant complaint under section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of an intending purchaser against a Private Limited Construction Company and its Directors on the allegation of deficiency of services in a dispute of housing construction.
2. Succinctly put, complainants' case is that on 15.01.2014 she entered into an agreement with the Opposite Party No. 1 Company to purchase of a self-contained flat measuring about 652 sq. ft. super built up area being flat Nos. 1B and 2A on the 2 floor along with all the easement nd attached to the plot as per the sanctioned plan of the municipality in a building christened 'Mayer Bari' lying and situated at premises No. 39, Hara kumar Tagore Stand, P.S.- Baranagar, DistNorth 24 Parganas, Kolkata- 700036 within the local limits of Baragangar Municipality at a total consideration of Rs. 16,00,000/-. The complainant has stated that she has paid Rs. 11,35,663/- as part consideration amount towards the said total consideration amount. As per terns of the agreement the OP No. 1 Company was under obligation to complete the subject flat and to deliver the same within 15.04.2014. The complainant has alleged that after expiry of stipulated period time and again she requested the OP No. 1 Company to hand over the subject flat but all the requests and persuasions went in vain. Hence, the complainant has approached this commission with prayer for following reliefs, viz.- (a) an order directing the Opposite Parties to refund the sum of Rs11,35,663/- along with interest thereon @ 18% p.a.; (b) to pay a sum of Rs. 10,00,000/- as compensation for harassment and mental agony etc.
3. The Opposite Party Nos. 1 and Opposite Party No. 6 by filing two separate written version disputed and denied the material allegation levelled by the complainant and pray for dismissal of the case.
4. In support of her case, complainant has tendered evidence through affidavit. The complainant has also given reply against the questionnaire set forth by OP No. 1. On behalf of OP No. 3 an evidence on affidavit has been filed. At the time of final hearing OP No. 3 has also filed brief notes of argument as OP No. 3 was represented through Mrs. Enakshi Das, Ld. Advocate.
5. On perusal of pleadings, evidence led by the parties coupled with the documents annexed therewith, it would reveal that on 15.01.2014 the complainant entered into an agreement with OP No. 1 Company to purchase of a self-contained flat measuring about 652 sq. ft. super built up area being flat Nos. 1B and 2A on the 2 floor along with all the easement attached to the plot nd as per the sanctioned plan of the municipality in a building christened 'Mayer Bari' lying and situated at premises No. 39, Hara kumar Tagore Stand, P.S.- Baranagar, Dist- North 24 Parganas, Kolkata- 700036 within the local limits of Baragangar Municipality at a total consideration of Rs. 16,00,000/-.
6. The overwhelming evidence on record further goes to show that the complainant has already paid Rs. 11,35,663/- as part consideration amount towards the said total consideration amount.
It is trite law that the parties are bound by the agreement. A person who signs a document contains certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect, in a decision ( Bharati Knitting Company vs- DHL World Wide Express Courier Division of Airfreight Ltd, (1996) AIR SC 2508) the Hon'ble Supreme Court has observed thus:
“It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F Nariman, Ld. Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the singed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M. N. Krishanmani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon it own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the clams decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract."
7. In this regard, Article V (B) of the agreement for sale appears to be relevant which runs as follows:
"(b) subject to Force Majeure, within 15 April, 2015 form the date of signing of this th Agreement the OWNER /DEVELOPER shall make the FLAT AND/OR/UNIT habitable and give Notice to the Purchasers/S shall, within 30 (thirty) days of date of the notice, take possession of the flat and/or Unit and the Properties appurtenant thereto, after fulfilling all obligations under these presents. The Owner/Developer shall be entitled to a GRACE PERIOD of Six months (hereinafter refer to as the GRACE PERIOD), ................."
8. Admittedly, the OP No. 1 company has failed to advance any Force Majeure circumstances. The Force Majeure circumstances has been mentioned in Article- XI of the Agreement for Sale which reproduces below :
"(a) The OWNER/DEVELOPER shall not be regarded in breach of any of the terms and conditions herein contained and on the part of the OWNER/DEVELOPER to be performed and observed if it is prevented by any of the conditions herein below:
ii). Natural Calamity.
iv). Labour unrest.
v). Any prohibitory order from the Courts, Baranagar Municipality and other authorities,
vi). Any local problems/disturbances
vii). Any other unavoidable circumstances beyond the control of the OWNER/DEVELOPER."
9. Therefore, it is quite evident that as per terms of the agreement the OP No. 1 Company being developer/owner of the land was under obligation to hand over the subject flat in favour of the complainants within 15.01.2014.
10. It is well settled that after making payment of a bulk consideration amount, a purchaser cannot wait indefinitely for having a roof over their head. In that perspective, when the Opposite Party No. 1 has failed to hand over or deliver the possession within the time frame and did not keep promise as per terms of the agreement, this itself amounts to deficiency in services.
11. During final hearing of the case, Mr. D.B Choudhuri, Ld. Advocate for the Opposite Party Nos. 1 and 2 have submitted that OP No. 1 company being a Private Limited Company, the Directors of the Company will be responsible to fulfil the terms and obligations of the agreement for sale dated 15.01.2014 and if some more time is given the developer, they will be able to complete the construction and handover the subject flat to the buyer.
12. On evaluation of materials on record it is quite evident that the complainants being 'consumer' hired the services of the Opposite Parties in a dispute housing construction and the Opposite parties have failed to keep their promise in handing over the flat and car parking spaces as par commitment in favour of the complainants within the stipulated period and thereby deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. In the premises, complainants are entitled to some reliefs. In our view, when there is hardly any chance to complete the construction in near future, an order directing the the Opposite Parties to refund the amount of R
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s. 11,35,663/- along with the compensation in the form of simple interest @ 10% p.a. from the date of each payment till its realisation will meet the ends of justice. Under compelling circumstances, the complainant has come up in this commission for which she is entitled to litigation costs which we quantify at Rs. 10,000/-. 13. In view of the above, the complaint is disposed of with the following directions: (i) The Opposite Parties are directed to refund the amount of Rs. 11,35,663/- along with compensation in the form of simple interest @10% p.a. in favour of the complainant from the date of each payment till its realization; (ii) The Opposite Parties are directed to make payment of a sum of Rs. 10,000/- as costs of litigation in favour of complainants; (iii) The above payments should be paid within 90 days from date in terms of the above order.