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Sudesh Bhawnani & Another v/s Lamda Properties Pvt. Ltd. & Others

    Complaint Case No. CC/416/2015
    Decided On, 07 May 2019
    At, West Bengal State Consumer Disputes Redressal Commission Kolkata
    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. DIPA SEN (MAITY)
    By, MEMBER
    For the Complainant: ------------ For the Opp. Party: ----------


Judgment Text
Samaresh Prasad Chowdhury, Presiding Member

The instant Complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a couple/intending purchaser against the land owners (opposite party Nos. 1 to 7), a Partnership Construction Firm (opposite party No.8) and its partners on the allegation of deficiency in services, primarily on the part of developer in a dispute of housing construction.

Succinctly put, Complainants’ case is that on 23.04.2010 they entered into an agreement for sale with the OPs to purchase of one duplex measuring about 1575 Sq. ft. super built up area on the 3rd and 4th floor, 2nd block and the right to park one medium size car to be allotted by the developer in the complex christened ‘Capricorn jewel’ lying and situated at premises No.158, Sahapur Sitalatola Road, P.S.-Behala, Kolkata-700 038, District- South 24 Parganas within the local limits of Ward No.118 of Kolkata Municipal Corporation at a total consideration of Rs.42,66,250/-. The complainants have stated that they have already paid a sum of Rs.38,58,889/- to opposite party No.8 (developer) within the month of June, 2013 out of said total consideration amount of Rs.42,66,250/-. The complainants have stated that as per terms of the agreement, the developer was under obligation to complete the construction within 31.12.2012. However, the developer could not keep their promise and in this regard all the requests and persuasions to the developer to handover the possession of the flat including the legal notice went in vain. Hence, the complainants lodged the complaint with prayer for following reliefs, viz.- (a) to direct the OPs to deliver possession of the subject flat in favour of them; (b) to direct the OPs to make payment of interest to the tune of Rs.38,58,889/-; (c) to direct the OPs to pay Rs.5,00,000/- as compensation for harassment and mental agony; (d) to direct the OPs to pay Rs.50,000/- as costs of litigation etc.

The OP Nos. 1 to 7 (land owners) by filing a written version have stated that after completion of the building the developer send their demand for final phase payment amounting Rs.4,45,534/- which includes service tax and other charges by their letter dated 17.08.2015 but the complainants without adhering to the same are trying to extract money from the OPs and as such in spite of receiving the said demand letter they miserably failed and neglected to pay the said amount till date.

The opposite party Nos. 8 and 10 (the Partnership Construction Farm and its partner) by filing written version have stated that as there was some disputes cropped up between the land owners and them, the disputes were referred to the arbitrator for which there has been some delay but they had no intention to delay in completion of the building and delivery possession of the flats to the purchasers. They have also stated that after completion of the building they handed over possession of the flat and car parking spaces to different purchases and they also took possession of the same without any demur. The answering opposite parties have alleged that the complainants’ only intention to have monetary gain and as such the complaint should be dismissed.

The opposite party No.11 by filing a separate written version has stated that he is an employee of OP No.8 construction firm as Finance and Accounts Manager. Therefore, he being not a partner to OP No.8 construction firm, the complaint should be dismissed against him.

The opposite party No.9 by filing another written version has made a prayer for dismissal of the complaint. However, by order No.11 dated 30.08.2017 the name of opposite party No.9 has been strike off from the cause title of petition of complaint.

The complainants and opposite party Nos. 1 to 7 and opposite party Nos. 8 and 10 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 complainants and also on behalf of opposite party Nos. 1 to 7 and oppoiste party Nos. 8, 10 and 11, two sets of brief notes have been filed.

The pleadings of the parties and the evidence on record make it abundantly clear that opposite party Nos. 1 to 7 are the land owners in respect of a piece and parcel of land measuring about 2 Bighas, 7 Cottahs and 14 Chittaks lying and situated at premises No.158, Sahapur Sitalatola Road, P.S.-Behala, Kolkata-700 038, District- South 24 Parganas within the local limits of Ward No.118 of Kolkata Municipal Corporation. The opposite party No.8 is a Partnership Construction Firm, represented by its partners namely opposite party No.10. On 31.08.2005 the opposite party No.8 had entered into a development agreement with the land owners for construction of number of buildings in the said property. Accordingly, in order to achieve the said object, they had obtained sanctioned building plan from the Kolkata Municipal Corporation on 25.08.2009.

It is also not in a dispute that on 23.04.2010 the opposite party No.8 had entered into an agreement for sale with the complainants to sell a duplex measuring about 1575 Sq. Ft. super built up area on the 3rd and 4th floor in 2nd Block and also one car parking space in the said complex christened ‘Capricorn Jewel’ at a total consideration of Rs.42,66,250/-. It also remains undisputed that the complainants being intending purchasers have already paid Rs.38,58,889/- to opposite party No.8/developer as part consideration amount within the month of June, 2013 towards the said total consideration amount of Rs.42,66,250/-.

Admittedly, the opposite party No.8 has failed to fulfil their promise in handing over the duplex/unit within the time frame. In this regard, Clause 6.4 of the agreement for sale appears to be relevant where it has been specifically agreed by the parties that the developer shall construct and make the complex in a tenantable condition by 31st December, 2012 (the completion date). It should also be recorded here that as per Schedule-G to the agreement for sale it was a construction linked payment plan and the complainants were liable to pay the balance amount of Rs.4,07,362/- only on the date of handing over possession of apartment to the complainants.

Evidently, the developer could obtain Completion Certificate from the Kolkata Municipal Corporation on 16.09.2015. Therefore, it is palpably clear that the developer had no locus standi or authority to deliver the possession of the unit to the complainants prior to that date and complainants were not obliged to receive the possession without the said Completion Certificate.

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” .

The Clauses 6.14.1.2 and 6.14.2.2 deals with the obligations of the purchaser and developer in respect of payment of interest of Rs.18% p.a. for non-fulfilment of their part of obligations, which are set out below-

“6.14.1.2 Delay in Payment: If the Purchaser fails, neglects and/or refuses to pay any part or portion of the Total Payable Amount within 15 (fifteen) days of being called upon to do so of the concerned payment, the Developer, for itself and on behalf of the vendors, at its discretion may rescind this Agreement or opt to condone the delay provided the Purchaser pay damages by way of interest at the rate of 18% p.a. for the entire period of delay in making the payment.”

“6.14.1.3 Termination: In the event of termination, the Developer shall be entitled to retain 10% of the Price as pre-determined damages and refund the balance without any interest to the Purchaser, after deducting any other amount payable by the Purchaser by way of interest or otherwise but only after the Composite Unit has been sold and the amount to be paid to the Purchaser has been received from its new purchaser provided however if the Composite Unit is sold within 6 (six) months from the date of the termination, the Developer shall any way pay the amount refundable to the Purchaser.”

“6.14.2.2 Deliver Possession: In case the Purchaser fulfills all its obligations hereunder but the Transferors fail to complete and deliver possession of the Composite Unit to the Purchaser within 12 (Twelve) months of the Completion Date, Force Majeure conditions excepted, then and in such an event, the Purchaser shall have the option to terminate this Agreement and obtain refund of all amounts paid by it without any interest till such time within 60(sixty) days of the termination. If the Purchaser does not exercise its option to terminate this Agreement, it will become entitled to interest @ 18% p.a. on the amount paid by it till such time the Composite Unit is delivered to it...........”

Therefore, it is quite clear that the opposite party No.8/developer should have delivered possession to the complainants within 31.12.2013 positively. However, they could obtain Completion Certificate only on 16.09.2015. Needless to say, after accepting the consideration amount, it is statutory obligation on the part of developer to fulfil the following three obligations- (a) to deliver possession;(b) to execute and register the sale deed and (c) to obtain Completion Certificate from the competent authority.

Therefore, unless and until all thethree basic criteria are fulfilled, the developer cannot absolve its responsibility.Therefore, it can be safely hold that the opposite party No.8/developer was deficient in rendering services to the complainants from 01.01.2014 to 15.09.2015 and in view of the Clause 6.14.2.2 the complainants are entitled to compensation in the form of simple interest @ 18% from 01.01.2014 to 15.09.2015.

At the same time, it appears that complainants also contributed the negligence.The evidence on record clearly speaks that after obtaining Completion Certificate from the Kolkata Municipal Corporation, immediately the developer informed the complainants to take possession of the flat on 17.08.2015 after payment of balance consideration amount including service taxes etc. of Rs.4,45,534/-.However, the complainants did not adhere to the same and insist the interest clause as depicted in the agreement for sale.In this regard, the answer given by complainants in reply also appears to be noteworthy.In question No.9 when it was asked – “Mr.Bhawani you have failed to take delivery of the flat even after receiving of the Completion notice and payment request of final phase dated 17.08.2015”? to which it was replied- “No. I asked to give respect to the terms of the agreement by the opposite parties”.In another question, on behalf of complainants it has been replied that due to dispute between the land owners and the developer, they could not wait and purchase one flat in Parnashree for accommodation and had the flat been delivered within time, they would not have purchased the flat by investing money further.

Considering the facts and circumstances and having heard the Ld. Advocate for the respective parties and on going through the materials on record we find that the complainants being ‘consumer’ within the meaning of Section 2(1)(d) of the Act hired the services of OPs to purchase a duplex and a car parking space in the complex constructed by OPs but the OPs, particularly OP No.8 was found deficient in rendering services towards the complainants within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.Therefore, in terms of the agreement for sale, the complainants are entitled to an order to deliver of possession, to get the deed executed in favour of them. When the opposite parties were found deficient in rendering services, the complainants are entitled to compensation and in view of Section 14(1) of the Act and the loss suffered by the complainant, in terms of agreement for sale, the complainants are entitled to compensation in the form of simple interest @ 18% p.a. from 01.01.2014 till 15.09.2015.Similarly, despite receipt of notice of possession, when the complainants have not paid the amount of Rs.4,45,534/- to the developer in compliance with the letter dated 17.08.2015, they are also liable to pay simple interest over the said amount @ 18% p.a. from 17.08.2015 till 16.05.2019.As the situation compelled the

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complainants to lodge complaint, they are entitled to litigation cost which we quantify at Rs.10,000/-. With the above discussion, we dispose of the complaint with the following directions- (a) The opposite party Nos. 8 and 10 are directed to handover possession of the property mentioned in part-I, part-II of Schedule-1 of the agreement for sale dated 23.04.2010 in favour of the complainants positively by 16.05.2019 by a Letter of Possession subject to payment of balance amount of Rs.4,45,534/- along with interest thereon @ 18% p.a. from 17.08.2015 to 16.05.2019; (b) The opposite party Nos. 1 to 7 and opposite party Nos. 8 and 10 are jointly and severally directed to execute and register the deed of conveyance in favour of the complainants in respect of the property as mentioned in part-I, part-II of Schedule-1 of the agreement for sale dated 23.04.2010 in favour of the complainants within 30 days from the date of delivery of possession; (c) The opposite party Nos. 8 and 10 are directed to pay compensation in the form of simple interest @18% p.a. from the committed date of possession i.e. from 01.01.2014 to 16.09.2015 i.e. the date of obtaining Completion Certificate; (d) The opposite party No.8 is directed to pay Rs.10,000/- to the complainants as costs of litigation; (e) The balance amount, if any, payable by the either of the parties, must be paid on the date of delivery of possession, in default, at the instance of either of the parties the order may put in execution.
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