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Suman Das & Another v/s Avani Projects and Infrastructures Ltd. & Another

    Complaint Case No. CC/465/2016

    Decided On, 30 April 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 (inadvertently mentioned u/s 12) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a couple/intending purchasers against the developer (opposite party No. 1) and the land owner (opposite party No.2) on the allegation of deficiency in services on the part of them in a dispute of housing construction.

In a nutshell, Complainants’ case is that on 03.05.2013 they entered into an agreement for sale with the opposite parties to purchase of a self contained flat measuring about 1171 Sq. ft. super built up area being flat No.2H on the 2nd floor in Block No.3 along with a car parking space in the said Block with common areas and facilities in a complex christened “Avani Aspire” lying and situated at Plot No.NH-6, Kona Express Highway, P.S. Domjur, District- Howrah at a consideration of Rs.32,67,090/- for the flat and Rs.3,00,000/- for the car parking space aggregating Rs.35,67,090/-. The Complainants have stated that they have paid more than Rs.80% of the total consideration amount leaving a balance of only Rs.7,13,418/-. The Complainants have alleged that as per terms of the agreement the OPs were under obligation to handover the subject flat within 24 Months subject to a grace period of another six months. The complainants have stated that time and again they have requested the complainants to deliver possession and to execute the sale deed after accepting the balance consideration amount but all their requests and persuasions including legal notice through their Advocate dated 30.08.2016 turned a deaf ear. Hence, the complaint with prayer for following reliefs, viz-(a) a direction upon OPs to deliver possession and registration of the subject flat within a time frame; (b) to pay compensation of Rs.12,00,000/- for mental agony, harassment and financial loss; (c) litigation costs of Rs.50,000/- etc.

The opposite parties by filling a written version admitted the existence of the agreement and the amount paid by the complainants as part consideration amount but it has been stated that the complainants have failed to pay amounts of instalments in time and as such there is no deficiency in services on the part of them.

In support of their case, Sri Suman Das, complainant No.1 has tendered evidence on affidavit for himself and also on behalf of his wife i.e complainant No.2. The OPs have filed questionnaire against which reply has been given by the complainants. However, the OPs have not tendered any evidence through affidavit. At the time of hearing, a brief notes of argument has been filed on behalf of the complainants.

The pleadings of the parties and the evidence on record make it quite clear that the OPs had entered into an agreement for sale with the complainants on 03.05.2013 to sell a flat measuring about 1171 Sq. ft. super built up area being flat No.2H on the 2nd floor and one car parking space in Block No.3 of the complex to be constructed by the OPs christened “Avani Aspire” lying and situated at Plot No.NH-6, Kona Express Highway, P.S. Domjur, District- Howrah at a consideration of Rs.32,67,090/- for the flat and Rs.3,00,000/- for the car parking space aggregating Rs.35,67,090/-. It also remain undisputed that the complainants have already paid the entire consideration amount leaving a balance of Rs.7,13,418/- towards the said total consideration amount. In the agreement it was stipulated that the subject flat will be delivered within 24 months with a grace period of another six months. In this regard, Clause 5.3 appears to be relevant which reads as follows:

“5.3. Subject to force majeure, within 24 months from the date of signing of this Agreement the DEVELOPER shall make the Flat habitable and give notice to the purchaser and the purchaser shall, within 15 days of date of the Notice, take possession of the FLAT AND THE PROPERTIES APPURTENANT THERETO, after fulfilling all obligations under this Agreement. The DEVELOPER shall be entitled to a grace period of six months after expiry of first 24 months (hereinafter referred to as the GRACE PERIOD) if the DEVELOPER FALLS TO DELIVER THE PSSESSION OF THE SAID FLAT. For the purpose of determination that there had been an embargo on the DEVELOPER IN PERFORMING ITS OBLIGATION THE DECISION OF THE Architect shall be final and binding on the parties.”

Needless to say, the parties are bound by 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 fact remains that the OPs have failed to advance in force majeure circumstances even in their written version. Therefore, as per terms of the agreement the OPs should have handed over the subject flat in favour of the complainants within 24 months from the date of agreement for sale i.e. within 03.05.2015.

The OPs took a plea that the complainants defaulted in payment of the entire consideration amount in time. In this regard, sixth schedule of the agreement for sale appears to be relevant. According to the said schedule, it was a construction linked payment plan and as per terms of the agreement the complainants are liable to pay 5% + 25% of total deposit on the day of delivery of possession. There is no document whatsoever that the OPs have ever informed the complainants about the progress of construction and demanded money in accordance with such progress of construction. On the contrary, from the evidence on record it is transpires that on 30.08.2016 the complainants through their Advocate wrote a letter to the Managing Director of the developer requesting them to handover the flat and car and car parking space in good and habitable condition forthwith. It also transpires that the complainants have been living in a rented accommodation and for that purpose they are going on paying rents of Rs.9,500/- per month. The complainants have obtained house building loan from State Bank of India, Kolkata, RACPC amounting to Rs.24,00,000/-. Therefore, the complainants were/are ready and willing to perform their part of obligation but from the reply given by the authorised signatory of developer dated 12.10.2016 it becomes quite clear that the construction of the building has been stalled and the same will be resumed shortly.

Therefore, it is palpably clear that the complainants being consumer as defined in Section 2(1)(d) of the Act hired the services of the OPs to purchase of a flat and car parking space and despite payment of more than 80% of the total consideration amount and ready to pay the balance amount, the OPs have failed to keep their promise in delivering possession of the subject flat and car parking space within the stipulated period and thereby they are deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. In the premises, the complainants are entitled to some reliefs. In our view, a direction upon the OPs to deliver possession and to execute the sale deed within 90 days after receipt of balance consideration of Rs.7,13,418/- will meet the ends of justice. The OPs have failed to deliver possession within the time frame and as such on account of harassment and mental agony suffered by the complainants, they are entitled to compensation and considering the loss suffered by the complainants, we think a compensation in the form of simple interest @ 10% p.a. from the committed date of possession i.e. from 03.05.2015 till its realisation will sub-serve the object of justice. Under compelling circumstances, the complainants have to lodge the complaint for which they are also entitled to litigation cost which we quantify at Rs.10,000/-.

In view of the above discussion, the complaint is disposed of with

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the following directions: 1. the Opposite party Nos. 1&2 are jointly and severally directed to deliver possession and to execute and register the sale deed in respect of the flat measuring about 1171 Sq. Ft. super built up area on the 2nd floor being flat No.2 H in Block 3 and one open car parking space in the ground floor as per terms of agreement for sale dated 03.05.2013 within 90 days after receipt of balance consideration amount of Rs.7,13,418/- payable by complainants in favour of OP No.1; 2. The Opposite Party No.1 is directed to pay compensation in the form of simple interest @ 10% p.a. over the amount already paid from the committed date of delivery of possession i.e from 03.05.2015 till the date of delivery of possession ; 3. The Opposite party No.1 is directed to pay Rs.10,000/- to the complainants as costs of litigation ; 4. The balance amount payable by the complainants if any, shall be adjusted and to be paid by the complainants at the time of delivery of possession.
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