Dipa Sen (Maity), Presiding Member
The instant complaint u/s 17 of the C.P. Act, 1986 is no behalf of intending purchasers against the developer/builder on the allegation of deficiency of service on the part of developer in a consumer dispute relating to housing construction.
A brief facts of the complaint case is that the complainant No. 1 is a Doctor and complainant No. 2 being his wife have jointly booked a residential flat being No. 4C of super built up area of 1482 sqft. on 3rd floor in Block ‘01’ of the Sanjeeva Orchard phase I, on 19th February, 2013. The Sanjeeva Orchard Phase I is a part of the entire Sanjeeva Orchard Project comprising of 15 proposed Blocks. OP No.1 and OP No. 2 both are the developers (partnership farm), OP No. 3 and OP No. 4 are land owners/vendors of the Sanjeeva Orchard Project. As per Agreement dated 19.02.2013 was signed by and between the complainant and the OP No. 1 with the OP No. 2, OP No. 3 and OP No. 4 as confirming party. As per the said agreement the total consideration amount of the flat No. 4C on the third floor in Block ‘01’ was decided as Rs. 52,61,100/-. In order to pay such a large amount the complainants approached for housing loan to the Central Bank of India. As per on 16th August, 2014 the Central Bank of India has sanctioned housing loan of Rs. 30,00,000/- only and the complainants have been repaying EMI of Rs. 34,000/- for the same. That in terms of the said Agreement dated 19th February, 2013 it was decided between the parties that the OP No. 1 will complete the construction and will deliver possession of the said residential unit within a period of 30 (thirty) months from the date of agreement with a grace period of 6 months i.e. the possession should have delivered within 18th February, 2016. As per the said agreement the developer promised to provide several amenities like club, comprising gymnasium, health club, Indoor Games, Swimming Pool etc with the said residential unit. But the OPs miserably failed in its commitment and the possession of the said residential unit has still not been delivered and owing to such failure the complainant have been suffering miserably and paying monthly rent of 15,000/- for their rented accommodation and is paying EMI of Rs. 34,000/- only towards repayment of the housing loan sanctioned by the Central Bank of India. All together they have made payment of Rs. 44,54,109/- (Rupees forty four lakh fifty four thousand one hundred nine) only to the OP No. 1. In spite of payment of almost 9% of the total consideration amount and after passing of more than 60 months since the date of signing of the agreement on 19th February, 2013, the OPs have neither complete construction of Sanjeeva Orchard Phase I nor have they made residential units ready for delivery of possession. Without getting any other way complainants compelled to approach the Commission for redressal of their grievances, along with a prayer for refund of their hard earned money along with compensation and cost for harassment, mental agony and financial loss.
By filing written version, OP No. 1 have denied and disputed all allegations made against him and thereby stated that the complaint is not maintainable as barred by limitation, there is no cause of action, the complainants are not consumer, the complainant has not paid the total consideration amount, complainants have booked the flat for commercial purpose hence not consumer. The OP No. 1 has specially stated that due to force majeure construction i.e. flood etc including economic slowdown in the infrastructure sector, the entire infrastructure of industry throughout the country including West Bengal has been affected and delay has caused and they could not complete their project.
The complainants filed evidence on affidavit. They also file reply against questionnaire set forth by OPs. But OP Nos. 3 and 4 (landowners) did not file any W.V and the case was fixed ex parte against them. the questionnaire field by the complainant also remained unanswered/unchallenged.
At the time of hearing, on behalf the complainant a BNA has been filed. The OPs have not filed any BNA.
Heard both of them. Perused all documents including the agreement for sale dated 19th February, 2013.
Undisputedly the complainants have entered into an agreement for sale with the OPs with an intention to purchase of a residential flat being No. 4C measuring about 1482 sq. ft. on 3rd Floor in Block ‘01’ and one car parking space in a proposed project Sanjeeva Orchard Phase I on 19th February, 2013 which is a part of the entire Sanjeeva Orchard Proposed Project comprising of 15 Blocks to be developed on a land measuring about One Acre and two satak and/or forms part of L.R Dag No. 1423 having an area of about 46 satak, and L.R Dag No. 1424 having an area of about 46 satak, P.S. Rajarhat (New Town) at agreed total consideration of Rs. 52,54,109/- to the OP No. 1 towards the said total consideration amount. As per the terms of the agreement the seller/developer has agreed to complete the construction and deliver possession of the said unit within a period of 30 months from the date of agreement with a grace period of 6 months thereafter. Therefore, when the OPs have failed to advance any force majeure circumstances, the OPs were under obligation to handover the subject flat within 18th February, 2016.
Eventually the OPs have failed to keep their promises to deliver the subject flat within stipulated period of time. They are found deficient in rendering service towards the complainants.
Hon’ble Supreme Court in AIR 1996 SC 2508 (Bharati Knitting Company vs. DHL World Wide Express Courier Division of Airfreight Ltd.) has observed that when there is a specific terms in the contract the Parties are bound by the terms in the construction. A person who signed a document contain contractual terms is normally bound by them even though he is ignorant, the parties are bound by the agreement.
In respect of delay in handing over possession, the OPs have stated only leave excuses including economic slowdown in the field of infrastructure. Even after long years from the date of execution of agreement for sale, the OPs did not able to complete the construction work of the proposed residential flat including all amenities and the complainant is suffering miserably and compelled to paying monthly rent of Rs. 15,000/- along with EMI of Rs. 34,000/-.
The materials on record clearly demonstrated that the complainants are ‘consumer’ as defined u/s 2 (1)(d) of the C.P. Act, 1986 as they have hired the service associated with housing construction of the Opposite Parties and made part payment of Rs. 44,54,109/- consideration amount. The OPs were found deficient in rendering services in accordanc
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e with Sec 2 (1)(g) read with Section 2 (1)(o) of the C.P. Act. Therefore the complainant is entitled to get relief. With the above discussions the complainant is allowed on contest with the following directions:- (i) The Opposite Party 1 to 4 are jointly and severally directed to refund of Rs. 44,54,109/- (forty four lakh fifty four thousand one hundred nine) only in favour of the complainant along with compensation in the form of simple interest @12% p.a. from the date of payment till its actual realisation; (ii) The Opposite Party 1to 4 are jointly and severally directed to pay Rs. 25,000/- (twenty five thousand) as cost of litigation; (iii) The above payment must be paid within 60 days from date.