Samaresh Prasad Chowdhury, Presiding Member
The instant complaint under section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of an intending purchaser against a Partnership Construction Firm (Opposite Party No. 1) and its partners (Opposite Party Nos. 2 & 3) and the landowner (OP No. 4) on the allegation of deficiency of services in a dispute of housing construction.
Succinctly put, complainant’s case is that on 18.01.2014 she entered into an agreement with the Opposite Parties to purchase of a flat measuring about 1370 sq. ft. including 20% super built up area on the 1st floor in Dag No. 98 corresponding to L.R. Dag No. 107 under Khatian No. 107 corresponding to L.R. Khatian No. 1302, Mouza- Ramchandrapur, P.S.- Sankrail, Dist- Howrah at a total consideration of Rs. 25,34,500/- @ 1850 sq. ft. The complainant has stated that she had already paid Rs. 19,95,000/- to the developer on diverse dates as part consideration amount towards the said total consideration amount. As per terms of the agreement, the developer assured the complainant to handover the possession of the flat within June, 2015 and it was also assured that the flat will be constructed with standard quality of materials. The complainant has alleged that after expiry of the committed date, time and again she requested the developer to make a construction with standard quality of materials and to handover the flat within the stipulated period or to refund the advance amount with nominal rate of interest. But the Opposite Parties refuse to handover the flat or to refund the amount. Hence, the complainant has lodged the complaint with prayer for following reliefs, viz.- (a) to direct the Opposite Parties to handover the flat by execution and registration of Sale Deed on receiving the balance consideration amount by making the construction with standard quality of materials or to refund the advanced money of Rs. 19,95,000/- with interest @ 18% p.a.; (b) to direct the OPs to pay compensation of Rs. 5,00,000/- for harassment and mental agony; (c) to direct the OPs to pay Rs. 25,000/- as litigation costs.
The Opposite Party Nos. 1 to 3 by filing a written version have stated that till date the complainant has not paid the entire consideration amount and forcibly took possession by illegal means and has been residing there with the family members and as such the complaint should be dismissed.
Both the parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. At the time of final hearing on behalf of complainant a brief notes of argument has been filed. Though OP Nos. 1 to 3 were represented through the Ld. Advocates yet they did not file any brief notes of argument.
The overwhelming evidence on record make it quite clear that the Opposite Party No. 4 was the owner of a piece of land measuring about 10 cottahs more or less lying and situated at Mouza- Ramchandrapur, P.S.- Sankarail, Dist- Howrah. On 05.10.2012 in order to raise a construction over the said land, the OP No. 4 had entered into a development agreement with OP No. 1 partnership construction firm represented by OP Nos. 2 and 3 for raising a construction over the said property. On that date, the OP No. 4 also executed one registered Power of Attorney in favour of OP Nos. 2 and 3 authorising them to develop the project and also entrusted them to enter into agreement for sale in the newly constructed building and/or flat with the intending purchaser and also receive the entire consideration money from the intending purchasers.
Being emboldened with the power conferred upon them, on 18.01.2014 the Opposite Party Nos. 2 and 3 being partners of OP No. 1 construction firm had entered into an agreement for sale with the complainant to sell one self-contained flat measuring about 1370 sq. ft. including 20% super built up area on the first floor of the said proposed building at a total consideration of Rs. 25,34,500/- i.e. @1850 per sq. ft. It is not in dispute that the complainant has already paid Rs. 19,95,000/- as part consideration amount towards the said total consideration amount on diverse dates.
It is undisputed proposition of law that the parties are bound by the terms of the agreement. A person who signs a document contain certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect. In a decision reported in AIR 1996 SC 2508( Bharati Knitting Company –vs. – DHL Worldwide Express Courier Division of Airfreight Ltd. ) 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 signed 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 claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract”
Now, in the Agreement for Sale the developer promised to execute the sale deed by June, 2015 after receipt of balance consideration amount. There is no document whatsoever to show that the developer had ever issued any letter of possession to the complainant or any letter requesting her to pay the balance amount and to get the deed executed in favour of her.
On the contrary, the complainant has specifically alleged that the construction has been done by sacrificing the quality. In order to prove the same, at the behest of the complainant, an Engineer Commissioner was appointed. Mr. Shib Das Bhar, the Engineer Commissioner inspected the flat in question in presence of both sides and submitted his report with the following observations: (i) hair crack were found at various places of the roof ceiling; (ii) plaster of paris was found to be coming out at various spaces of the flat; (iii) floor skirting stone came out at places; (iv) some cracks were found at some places of the floor; (v) roof top placing has come out some places; (vi) earthing is not provided at most of the electrical boards and (vii) building has been constructed deviating from the sanctioned building plan. The said report is supported by some photographers which acquired corroboration on the allegations made by the complainant to that effect. It amply proves that the entire construction has been done with low standard materials resulting thereby those damages.
Mr. Amit Panchal, Ld. Advocate for the complainant referring a decision reported in I (2007) CPJ 444 (NC) (Ansal Housing of Construction limited and others –vs- Jotinder Singh) has submitted that when the construction has not been done in accordance with sanctioned plan and there are several defects in construction of the said building, the complainant being a sensitive buyer cannot purchase the flat and as such the complainant is entitled to refund of the entire amount along with interest thereon. We find force behind such submission made by the Ld. Advocate for the complainant, more particularly, when no contrary evidence is forthcoming.
Considering the facts and circumstances and having heard the Ld. Advocates appearing for the parties it appears to us that the complainant being a ‘consumer’ within the meaning of Section 2(1)(d) of the Act hired the services of the Opposite Parties, particularly OP Nos. 1to 3/developer on consideration but the OP Nos. 1 to 3 have shown deficiency or utter negligence in providing services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Considering the fact that there are several defects in construction of the building, we think, an order directing the Opposite Parties No. 1 to 3 to
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refund the amount of Rs. 19,95,000/- along with compensation thereon in the form of simple interest @8% p.a. from the date of each payment till its realisation will meet the ends of justice. As the situation compelled the complainant to lodge the complaint, she is entitled to litigation costs which we quantify at Rs. 20,000/-. In view of the above discussions, the complaint is allowed on contest against OP No. 1 to 3 and dismissed against OP No. 4 with the following directions: (i) The Opposite Party Nos. 1 to 3 are jointly and severally directed to refund the amount of Rs. 19,95,000/- along with compensation in the form of Simple Interest @8% p.a. from the date of each payment till its realisation; (ii) The Opposite Party Nos. 1 to 3 are jointly and severally directed to pay Rs. 20,000/- to the complainant as to costs of litigation; (iii) The payments should be paid within 60 days in terms of the above order.