w w w . L a w y e r S e r v i c e s . i n



Shree Shew Prokash Saha v/s M/s. D.L.F. Ltd.


Company & Directors' Information:- DLF LIMITED [Active] CIN = L70101HR1963PLC002484

Company & Directors' Information:- DLF INDIA LIMITED [Amalgamated] CIN = U45201DL2006PLC147370

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    Complaint Case No. CC/447 of 2015

    Decided On, 15 February 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING
    By, MEMBER

    For the Complainant: Prasanta Banerjee, Sagnik bose, Advocates. For the Opposite Party: Ananda Ghosh, Advocate.



Judgment Text

The instant complainant under Section 17 of the Consumer Protection Act, 1986 ( for brevity, 'the Act' ) is at the instance of an intending purchaser against the developer/builder on the allegation of deficiency in services on the part of developler in a consumer dispute of housing construction.

Succinctly put, complainant’s case is that on 31.12.2007 he booked an apartment being no. NRC023 measuring an area of 1816 sq.ft.along with a car parking space being no. NUC007 at 2nd floor of Tower – C of the Complex named ‘New Town Heights’ lying and situated at New Town under P. S. – New Town, Kolkata – 700156, District - North 24 – Parganas with a booking amount of Rs.3,00,000/-. Subsequently, on 11.10.2008 an apartment allotment agreement vide no. B- 334 was executed between the parties and agreed price of the subject property was fixed at Rs. 53,95,524,96 paise. The complainant submits that he has paid the entire consideration amount in favour of the OP. In the agreement, it was stipulated that the OP will deliver the possession within three years from the date of booking. But the OP has not yet delivered the possession and on the contrary on 22.05.2014 issued a revised final statement of accounts of RS. 5,45,366/- towards the stamp duty and registration charges, claimed excess amount of Rs.3,47,875/- for excess area of 1845 sq.ft. in place of 1816 sq.ft. claim of cost of Rs.2,86,038/- as other cost including government charges etc. The complainant by a letter dated 30.01.2015 asked the OP to furnish the adjustment details. But they are still silence after receiving several protest letters. The complainant submits that the invoice of maintenance and upkeep charges dated 10.09.2015, 30.06.2015 and 28.05.2015 towards the maintenance of the said apartment and/or building is contradictory to Clause No.14.1 of the agreement where it has been stated that the charges should be borne by the allotte on and from the date on which the actual possession of the said apartment is taken or on the expiry of 30 days from the date issuance of the ‘notice of possession’. Hence, the complainant has come up in this Commission with the instant complaint with prayer for following reliefs, viz – (a) an order directing the OP to grant the unconditional possession of the subject property and to execute the deed of conveyance in favour of complainant; (b) an order of payment of compensation of Rs. 20,00,000/- for harassment and mental agony ; (c) litigation and incidental cost of Rs.1,00,000/- etc.

The OP by filing a written version has stated that the complaint is not maintainable as this Commission does not have jurisdiction as per Clause – 50 of Apartment Allotment Agreement where both the parties agreed to settle the dispute amicably or to refer the matter to arbitration or the courts of Kolkata alone and the Hon’ble High Court at Calcutta alone shall have the jurisdiction. The OP has denied that they have failed to deliver possession after lapse considerable period of time even after excepting full payment. It is stated that complainant has failed to make all the payment as demanded in the final demand notice dated 22.05.2014. The OP has also stated that in accordance with the agreement the demands were made vide letter dated 22.05.2014. It has further been stated that the complainant is wrongly demanding delay compensation as they have been in default in making payment on time as prescribed by schedule of payment and according to the agreement an allottee is only eligible for delay compensation if that allottee has cleared all the payment in accordance with the agreement and has complied with all the terms and conditions of the said agreement. It has further been stated that Tower – C has been completed and partial Occupancy Certificate has also been received on 31.07.2013 and as such allottee is liable to make payment of maintenance charges from August, 2013. The OP has finally submitted that whenever the complainant contracted with them, all queries of the complainant have been duly addressed and replied by OP through letter and e-mail dated 24.07.2014 and 06.07.2015. Therefore, the complaint should be dismissed with costs.

During hearing of the case, both the parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries.The parties have relied upon several documents annexed with the evidence on affidavit filed by the parties. At the time of final hearing, both the parties have filed Brief Notes of Arguments.

At the outset, it would be pertinent to record that the value of the subject flat agreed upon by the parties was settled at Rs.53,95,524.96 paise and the complainant has claimed compensation of Rs. 20,00,000/- and as such the value of the complaint comes to Rs.74,00,000/- ( rounded off ) within the pecuniary limit of this Commission as per Section 17(1) of the Act. The Office of OP /builder is well within the geographical limit of this Commission in accordance with Section 17 (2) of the Act. Further , the subject matter of the dispute relating to ‘housing construction ‘ and when the complainant alleged deficiency in services, in accordance with the definition of Section 2(1)(o), this Commission has only jurisdiction to adjudicate the complaint.

Undisputedly, the complainant made application for allotment of an apartment vide no.NRC023 with the accommodation for parking vide no. NUC007 at New Town Heights, P. S. – New Town, a project constructed by O. P. and on 31.12.2007 the complainant booked the said accommodation on payment of booking amount of Rs. 3,00,000/-. Ultimately, on 11.10.2008 an apartment allotment agreement was executed to that effect on between the parties as per agreed terms and conditions with a consideration of Rs. 53,95,524.96 paise. It is not in dispute that the complainant has paid the said total consideration amount. In the agreement, it was stipulated that the builder will deliver the possession within three years from the date of agreement. Therefore, it is quite apparent that in accordance with the terms of the agreement, the OP/builder was under obligation to deliver possession to the complainant by 11.10.2011. The fact remains that the OP could not deliver possession within the time frame and on the contrary on 22.05.2014 they have sent Revised Final Statement of Accounts where they have claimed Rs. 5,45,366/- for stamp duty and registration charges, Rs. 3,47,875/- as cost of increase in area (CIA), Rs. 30,000/- as Club charges, Rs. 1,20,183/- as prorata charges for arranging supply of electrical energy, Rs.20,938/- as prorate charges of reticulated gas connection, Rs. 2,86,038/- as other costs including government charges, Rs. 153.75 paise for delayed interest, Rs.57,233/- as service tax applicable w.e.f 01.07.2010. Besides the same, the OP has claimed Rs. 90,800/- as interest bearing maintenance security ( IBMS). Practically, the said revised final statement of account dated 22.05.2014 is the immediate cause of this lis.

Ld. Advocate for the OP on the threshold of his submission, has drawn my attention to Clause 50 of apartment allotment agreement ( in short, agreement ) where it provides all or any dispute arising out in relation to terms of the agreement shall be settled amicably by mutual discussion, failing which the same shall be settled through arbitration and the courts in Kolkata alone and the Calcutta High Court alone shall have the jurisdiction.

Basing upon that clause, the Ld. Advocate for the OP has submitted that the dispute cannot be entertained by this Commission and it should be referred to the Arbitrator in accordance with terms and conditions of the Agreement.

In the case of DLF Ltd. –Vs. – Mridul Estate Pvt. Ltd. reported in III (2013) CPJ 439 the Larger Bench of Hon’ble National Consumer Commission considering several decisions of Hon’ble Supreme Court reported in – (1) the case of SBP & Co (supra), (2) National Seeds Corporation Ltd. – Vs. – M. Madhusudan Reddy & Anr., I (2012) CPJ 1 (SC), (3) Lucknow Development Authority – Vs. – M.K. Gupta, III (1993) CPJ 7 (SC), (4) Skypay Couriers Ltd. – Vs. – Tata Chemicals and several other judgements has observed that the Consumer Fora constituted under the C.P. Act are not bound to refer the dispute raised in the complaint on an application filed under Section 8 of the 1996 Act seeking reference of the dispute to an Arbitral Tribunal in terms of valid arbitration clause in the agreement entered into between the parties. The OP in CC/188/2010 preferred an appeal in the Hon’ble Supreme Court and the Hon’ble Supreme Court in the case of Rosedale Developers Pvt. Ltd. –vs- Aghore Bhattacharya reported in (2015) 1 WBLR(SC) 385 has held that the National Commission did not commit any error by holding that the remedy of arbitration available to the complainant does not bar the jurisdiction of the Consumer Fora and the Consumer Fora are not under an obligation to refer the matter to the Arbitral Tribunal.

After amendment to Section 8 of Arbitration Act, 2015 a bunch of applications filed by the developers/builders and in disposing of the same by the Larger Bench of the Hon’ble National Commission by an order dated 13.07.2017 (Aftab Singh – Vs. – Emaar MGF Land Ltd. & Anr.) has observed that in the context of consumer jurisprudence, the Hon’ble Supreme Court has not disturbed the earlier opinion regarding the arbitrality of consumer disputes rendered in the pre-amendment era rather it has affirmed the protection granted to the consumers from private resolution. After a detailed discussion with reference to several judgement of the Hon’ble Supreme Court including the decision reported in (2016) 10 SCC 386 (A. Ayyasamy – Vs. – A. Paramasivam & Ors.) the Hon’ble National Commission has arrived at the conclusion that in light of overall architecture of the Consumer Act and Court - evolved jurisprudence, amended Sub Section (1) of Section 8 cannot be construed as a mandate to the Consumer Forums, constituted under the Act, to refer the parties to arbitration in terms of the arbitration agreement. Consequently, the Hon’ble National Commission reject the arguments on behalf of the builder and hold up that an arbitration clause between the complainant and the builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the 1996 Act.

In a landmark decision reported in AIR 2003 SC 1043 [State of Karnataka – Vs. – Vishwabarathi House Building Co-op Society & Ors.] the Hon’ble Supreme Court speaking on the jurisdiction of the Consumer Fora held that the provisions of the Act are required to be interpreted as broadly as possible and the Fora under the Act have jurisdiction to entertain a complaint despite the fact that other Fora/Courts would also have jurisdiction to adjudicate upon the lis. The Hon’ble Supreme Court proceeded to observe that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other Forum established under some enactment. The Hon’ble Court had gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.

Therefore, the submission made by t he Ld. Advocate for the OP relating to referring the dispute to Arbitral Tribunal bears no significance.

Ld. Advocate for the complainant placing reliance to schedule of payments ( Annexure – III ) to the agreement has submitted that as per payment schedule the complainant was under obligation to pay Rs. 54,80,575/- and when the complainant has already paid Rs. 53,95,525/- ( rounded off ) the OP /builder may claim Rs.85,050/- as IBMS as per the terms of agreement but when without issuance of notice of possession as per Clause 10 .2 of the agreement the OP had issued revised final statement of account on 22.05.2014 claiming a huge amount , the OP has adopted an unfair trade practice to dupe the complainant . He has further submitted that as per terms of the agreement the OP is under obligation to pay Rs.5/- per sq.ft. as default Clause for 1816 sq.ft. ( size of flat area ) x 1816 x 43 months = Rs.3,90,440/- but the OP agreed to pay Rs.1,89,262/- for the period from three years after the date of booking till 31.07.2013 which also indicates the tendency of the developer to befool a ‘Consumer’. Ld. Advocate for the complainant has submitted that the OP should have issued notice of possession and instead of the same when they are claiming the excessive amount bypassing the payment schedule as per agreement, the complainant should be allowed as the prayers of the complainants are justified.

Per contra, Ld. Advocate for the OP has contended that the revised final statement of account was issued on 22.05.2014 as per terms of the agreement and when the agreement was signed by the parties verifying all the conditions, and particularly the complainant did not raise any dispute as to the terms of the agreement , the complainant cannot raise any question over it. He has also submit that the queries raised by the complainant was duly replied on 24.07.2014 and 06.07.2014, 06.07.2015 by its e-mail. Ld. Advocate for the OP has finally submitted that the OP has no willingness to perform his part of the contract and the conduct of complainant has to be properly scrutinised. In support of his submission, Ld. Advocate for OP has relied upon a decision of Hon’ble Supreme Court reported in (1996) 4 SCC 526 ( His Holiness Acharya Swami Ganesh Dassji –vs. – Shri Sita Ram Thapar ).

Needless to say, 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 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 :

'..... 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 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' .

Clause 10.2 of the agreement relates to procedure for taking possession, which provides –

'The company shall offer in writing the possession of the said apartment to the apartment allottee according to the terms of this Agreement ( the Notice of Possession ) to be taken over 30 days from the date of issue of such notice and the Company shall give possession of the Said Apartment to the Apartment Allottee provided the Apartment Allottee is not in default of any of the terms and conditions of this agreement and has complied with all provisions, formalities, documentation etc as may be prescribed by the Company in this regard

The Apartment Allottee shall be liable to pay the Maintenance Charge on and from the date on which actual physical possession is taken or, on the expiry of thirty (30) days from the date of issuance of the Notice of Possession, whichever is earlier '.

Clause No. 11.4 of the agreement deals with failure to deliver possession which provides if an apartment allottee is not found defaulter, compensation of Rs. 5/- per sq.ft. of the super area of the said apartment per month for the period of such delay beyond three (3) years or such extended periods is permitted under the agreement and the adjustment of such compensation shall be done only at the time conveyancing the said apartment to the apartment allottee first name in this agreement and not earlier .

The factual matrix of the case makes it abundantly clear that the OP /builder was under obligation to handover the subject apartment positively by 11.10.2011 but till the date of filing of the complaint, the OP did not take any step to issue ‘notice of possession’ to the complainant. On 22.05.2014 for the first time the OP issued revised final statement of accounts but did not keep their own promise as per Schedule of Payments ( Annexure - III ) to the agreement. The said pay ment schedule indicates that the complainant has paid the enti re consideration amount of Rs. 53,95,525/- ( rounded off ) to the OP and the complainant has liability to pay only Rs. 85,050/- under IBMS but the payment schedule does not indicate that the complainant has any liability to pay any other amount till possession is delivered to the complainant.

In any case, the revised final statement of account dated 22.05.2014 itself goes to show that the complainant has paid the entire amount of basic sale price, preference location charges and cost of parking amounting to Rs. 93,95,524.96 paise .

However, the OP has claimed Rs. 3,47,875/- as cost of increased area (CIA) and an amount of Rs. 3,24,313.75 paise has been rebated and it is shown that a sum of Rs. 23,561.25 paise is due and payable taking into consideration the market value of the property at Rs. 3,900/- per sq.ft. The OP /builder did not take any pain to file the market value assessment form. It has been stated by the complainant that the New Town State Electricity Corporation Ltd., a subsidiary of WBSEB sanctioned the revised electrical scheme for which OP had to introduce additional Sub-station and installation of electrical equipments in the basement of each town and hence it increased the built up area of main sub-station building for which common area for all towers increased significantly. The materials on record indicate that the OP has constructed two more towers in the complex in excess of 09 towers for which the super built up area should have been decreased. Moreover, on account of change of alleged plan or increased of super built up area, the complainant should have been immediately informed and when the OP has brought to the notice of the OP only on 22.05.2014, certainly the OP has committed negligence or shown deficiency. Therefore, the OP cannot claim any excess amount on the plea of CIA .

The OP has also claimed other cost including government charges at Rs.157.51 per sq.ft. aggregating Rs. 2,86,038/- . But it is curious to note that the OP has failed to show any document whatsoever that they are under obligation to pay the amount after realising the same from a buyer without delivering possession.It is also surprising to note that the OP is claiming a sum of Rs. 5,45,366/- as stamp duty and registration charges. In annexure - III of the agreement relating to schedule of payments, the advance payment of stamp duty in favour of OP company has not been mentioned. Moreover, question of registration will come after delivery of possession as per terms of the agreement.Moreover, the complainant may appoint a legal person on his own choice to get the deed registered and a developer has no right to impose a condition upon a buyer, particularly when the stamp duty , registration cost and legal charges will be borne by the complainant himself .

The unethical conduct of OP company will be quite apparent when in the revised final statement of account the OP has agreed to pay compensation @ Rs.5/- per sq.ft. p.m. of super area calculated after three years after the date of booking till 31.07.2013 at Rs.1,89,262/-. As per agreement, the area of the flat is 1816 sq.ft.

In reply to a question on behalf of complainant, the witness of OP has replied -' Partial Occupancy Certificate of Tower C was received on 31st July, 2013 and Completion Certificate of the entire was received on 16th November, 2016'.

It simply signifies that at the time of issuance of statement of account on 22.05. 2014 the OP was not in a position to deliver possession and the said statement of account was issued upon OP to camouflage the situation . In other words, the OP had tried to bring a hazy situation in order to put pressure upon the buyer to succumb. In fact, the OP is under obligation to pay compensation to the complainant 1816 sq.ft. x Rs.5/- x 11.10.2011 ( after expiry of three years ) till 15.09.2016 (the date before obtaining Completion Certificate ).

Considering the facts and circumstances of the case and having heard the Ld. Advocates for the parties it becomes quite apparent that the complainant being a &

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lsquo;Consumer’ as defined in Section 2(1)(d) of the Act hired the services of OP in a housing construction on consideration but the OP was found negligent or deficient in rendering services within the meaning of Section 2 (1) (g) read with Section 2(1)(o) of the Act. The decision referred by the Ld. Advocate of OP in the case of His Holiness Acharya Swami Ganesh Dassji ( supra) is totally mis-match with the facts and circumstances of the present case because the complainant has already paid the entire amount. The OP has also failed to advance any ‘force majeure’ circumstances. Therefore, the complainant is entitled to some reliefs. Considering the above, I think an order directing the OP company to grant possession of the property as mentioned in the agreement in favour of the complainant on receipt of Rs.85,050/- as IBMS will meet the ends of justice. Due to prolonged harassment and mental agony, the complainant is entitled to compensation of 1816 sq.ft. x Rs.5/- x from 11.10.2011 ( after expiry of three years ) till 15.09.2016 ( the date before obtaining Completion Certificate ). As the situation compelled the complainant to lodge complaint, he is also entitled to litigation cost which I quantify at Rs. 10,000/-. In view of the discussion above, the complaint is allowed on contest with the following directions:- 1) The Opposite Party shall deliver possession of the subject property as per Apartment Allotment Agreement dated 11.10.2008 in favour of the complainant within 30 days from date on receipt of Rs.85,050/- as IBMS . 2) The OP shall pay to the complainant a compensation as per agreement 1816 sq.ft. x Rs.5/- x from 11.10.2011 ( after expiry of three years ) till 15.09.2016 ( the date before obtaining Completion Certificate ) and the said must be paid to the complainant within 30 days from date otherwise the amount shall carry interest @ 9% p.a. from date till its realisation. 3) The OP No.1 shall pay a sum of 10,000/- as cost of litigation to the complainant which must be paid within 30 days from date otherwise the amount shall carry interest @ 8% p.a. from date till its recovery. The Registrar of the Commission is directed to send a copy of this order to the parties at once free of cost for information and compliance.
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01-10-2018 Mandira Saha Versus Sona Halder & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
28-09-2018 Brigadier Girish Gogia (Retd.) Versus DLF Homes Panchkula Pvt. Ltd. & Others Union Territory Consumer Disputes Redressal Commission UT Chandigarh
24-09-2018 United India Insurance Co. Ltd Versus Uttam Kr. Saha & Others High Court of Gauhati
19-09-2018 Jayanta Saha, Kolkata Versus Dcit, Circle - 25, Kolkata Income Tax Appellate Tribunal Kolkata
18-09-2018 Mobile Store Versus Subal Saha & Another Tripura State Consumer Disputes Redressal Commission Agartala
14-09-2018 Kamal Saha Versus The Union of India, Represented by the Secretary to the Government of India, Ministry of Communication & IT Department of Posts, New Delhi & Others Central Administrative Tribunal Guwahati Bench Guwahati
12-09-2018 Kalyan Bose & Another Versus D.L.F. Ltd. West Bengal State Consumer Disputes Redressal Commission Kolkata
07-09-2018 DLF Homes Panchkula Pvt. Ltd. & Others Versus Sushila Devi & Others National Consumer Disputes Redressal Commission NCDRC
05-09-2018 Anand Kumar Saraogi & Another Versus Amitamoyee Saha & Others High Court of Judicature at Calcutta
31-08-2018 Amit Mittal Versus DLF Limited & Others Competition Commission of India
31-08-2018 Milon Roy Chowdhury Versus Ashis Kumar Saha & Others High Court of Judicature at Calcutta
28-08-2018 Joydeb Saha Versus Ashim Kumar Ghosh & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
16-08-2018 Ramesh Kumar Chowdhury Versus DLF Ltd. West Bengal State Consumer Disputes Redressal Commission Kolkata
08-08-2018 Deepak Kumar @ Deepak Kumar Saha Versus Ombir Singh & Others High Court of Delhi
08-08-2018 Suman Saha Versus Andaman & Nicobar Administration & Others High Court of Judicature at Calcutta
06-08-2018 Archana Roy (Saha) & Others Versus Sanjib Bhattacharjee & Others High Court of Tripura
31-07-2018 Mani Saha Versus Apollo Gleneagles Hospital & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
30-07-2018 Paramita Saha (Nandi) Versus Birangshu Narayan Dash Sharma & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
27-07-2018 Debabrata Saha Versus State of West Bengal High Court of Judicature at Calcutta
23-07-2018 Reliance General Insurance Co. Ltd. Versus Dulali Saha & Others High Court of Tripura
03-07-2018 Sukumar Sutradhar & Another Versus Sanjoy Saha West Bengal State Consumer Disputes Redressal Commission Kolkata
28-06-2018 Maj. Gen. (Retd.) M.P. Singh & Another Versus DLF Homes Panchkula Pvt. Ltd., Chandigarh through its authorized representative & Others Union Territory Consumer Disputes Redressal Commission UT Chandigarh
25-06-2018 Sanjib Ratan Saha Versus The Institute of Cost Accountant of India & Others High Court of Judicature at Calcutta
18-06-2018 Dr. Arindam Butt Versus Manoj Kumar Saha & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
06-06-2018 Tapan Kumar Saha Versus Susmita Bhowmik & Others West Bengal State Consumer Disputes Redressal Commission Kolkata