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 one private limited company and its Managing Director (Opposite Party Nos.1 and 2 respectively) and the landowner (Opposite Party No. 3) on the allegation of deficiency of services, primarily on the part of developer in a dispute of housing construction.
In a nutshell, complainants’ case is that on 31.07.2014 they entered into a registered agreement for sale with the Opposite Parties to purchase of one self-contained flat measuring about 869 sq. ft. super built up area being flat No. A on the 1st floor in a premises lying and situated at 218/1, S.K Deb Road, P.S.- Lake Town, Kolkata- 700048, Dist- North 24 Parganas within the local limits of Ward No. 34 of South Dum Dum Municipality at a total consideration of Rs. 26,07,000/-. The complainants have stated that in accordance with the terms of agreement, they have already paid Rs. 21,60,000/- as part consideration amount towards the said total consideration amount. It was stipulated that the developer will deliver the vacant possession of the flat in question within 18 months from the date of obtaining sanctioned building plan from the local Municipality. The complainants have stated that on 12.05.2012 the developer has obtained the sanctioned building plan from the South Dum Dum Municipality. The complainants have alleged that after expiry of the stipulated period, time and again they have made request to the developer to deliver the possession after receipt of balance consideration amount but all their requests and persuasions including the letter dated 07.12.2017 addressed to OP Nos. 1 and 2 went in vain. Hence, the complainants have lodged the complaint with prayer for following reliefs, viz.- (a) an order directing the Opposite Parties to complete the construction of the flat and to convey the title of the flat in question in favour of them after obtaining completion certificate from the competent authority, alternatively, to refund the amount already paid along with interest @ 18% p.a.; (b) an order directing the OPs to pay a sum of Rs. 5,00,000/- as compensation for harassment and mental agony; (c) a direction upon the OPs to pay Rs. 40,000/- as costs of proceedings.
Despite service of notice the Opposite Parties have neither appeared nor filed written version. Under compulsion, the complaint was heard ex parte.
In support of their case, complaints have tendered evidence on affidavit. Besides the same, complainants have relied upon several documents like- (a) copy of registered agreement for sale dated 31.07.2014; (b) copy of General Power of Attorney dated 25.10.2010; (c) money receipts showing payment by the complainants; (d) copy of letter dated 05.07.2017 etc.
The overwhelming evidence on record make it abundantly clear that the Opposite Party No. 3 is the owner of a piece and parcel of land measuring about 2 cottahs 11 chittaks and 25 sq. ft. together with a structure standing thereon lying and situated at premises No. 218/1, S.K Deb Road, Kolkata- 700048, Dist- North 24 Parganas within the local limits of Ward No. 34 of South Dum Dum Municipality. In order to raise construction of a multi-storied building thereon, on 25.10.2010 the OP No. 3 had entered into an agreement with OP No. 1 company represented by OP No. 2 for raising construction of multi storied building after demolition of the existing structure. By a Power of Attorney dated 25.10.2010 the OP No. 3 has empowered OP No. 2 to enter into agreement for sale of allocated flats being Managing Director of the said company.
Being emboldened with the power conferred upon them, the OP No. 1 company on 31.07.2014 had entered into an agreement with the complainants to sell one flat measuring about 869 sq. ft. super built up area being flat No. A on the 1st floor of the said premises at a total consideration of Rs. 26,07,000/-. The money receipts available with the record go to show that the complainants have already paid Rs. 21,60,000/- as part consideration amount towards the said total consideration amount. The fact remains that as per terms of the agreement for sale, the developer was under obligation to handover the subject flat in complete habitable condition in favour of the complainants within 18 months from the date of obtaining sanctioned building plan. Evidently, on 12.05.2012 the OPs have obtained sanctioned building plan from the South Dum Dum Municipality. Therefore, in accordance with the terms of agreement, the OP No. 1 company should have handed over the flat to the complainants in a habitable condition within 12.11.2013 say within November, 2013 positively.
It is undisputed proposition of law that the parties are bound by the terms of agreement. When either of the parties did not pick up any quarrel with the terms and conditions of the agreement, they are certainly bound to follow the terms and conditions as contained in the agreement. In a case reported in AIR 1996 SC 2508 (Bharti Knitting Co. – vs. – DHL World Wide 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, clause 2 (inner page 7) of the agreement for sale stipulates-
“2. It shall be the duty and responsibility of the Vendor/Developer to deliver vacant possession thereof to the purchaser/s within 18 (Eighteen) month/s from the date of sanction of building plan upon receipt of full price being full amount of consideration money of the said flat to be paid by the purchaser/s to the Developer in the manner hereinafter mentioned under clause No. 4 hereunder.”
Admittedly, the OP No. 1 company has failed to fulfil their promise in handing over the flat in favour of the complainant after receipt of balance consideration amount of Rs. 4,47,000/- only. In this regard, all the requests and persuasions including the letter given by the complainants turned a deaf ear.
In a decision reported in (1994) 1 SCC 243 (Lucknow Development Authority –vs.- M.K. Gupta)the Hon’ble Supreme Court has held that when a person hires the services of a builder, or a contractor, for the consideration of a house or a flat, and the same is for a consideration, it is a “service” as defined in Section 2(1)(o) of the Act and the inordinate delay in handing over the possession of the flat clearly amounts to deficiency of service. In another decision reported in (2018) 5 SCC 442 (Fortune Infrastructure –vs- Trevor D’Lima ) the Apex Court has held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him along with compensation.
In another case reported in II (2019) CPJ 29 (Kolkata West International City Pvt. Ltd. –vs- Devasis Rudra,) the Hon’ble Supreme Court has observed as hereunder:
“.......It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.”
In the case before hand, it would be evident that even after expiry of long 6 years from the committed date of possession the OP No. 1 company has failed to deliver the possession of the apartment to the complainants. The OP No. 1 company has not even written a letter to the complainants intimating them the probable date or expected date for delivery of possession. In that perspective, we think, the complainants are entitled to some reliefs. In our view, a direction upon the OP Nos. 1 and 2 to deliver the possession of the flat as mentioned in the 3rd Schedule to the agreement for sale dated 21.07.2014 after obtaining completion certificate from the competent authority and to pay compensation @8% p.a. from the committed date i.e. from 01.12.2013 within 90 days from date alternatively, an order with a direction to refund the amount of Rs. 21,60,000/- along with compensation in the form of simple interest @ 10% p.a. from the date of each payment till its realisation will meet the ends of justice. Under compelling circumstances, the complainants have to lodge the complaint for which they are entitled to litigation costs which we quantify at Rs. 20,000/-.
With the above discussion, the complaint is disposed of with the following directions:
(i) The Opposite Part
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y Nos. 1 and 2 are jointly and/or severally directed to handover the possession of the flat as mentioned in 3rd Schedule of the registered agreement for sale dated 31.07.2014 along with compensation in the form of simple interest @ 8% p.a. from 01.12.2013 till the date of delivery of possession within 90 days from date; (ii) Alternatively, the Opposite Party Nos. 1 and 2 are jointly and/or severally directed to refund the amount of Rs, 21,60,000/- along with compensation in the form of simple interest @ 10% p.a. from the date of each payment till its realisation; (iii) In the event of delivery of possession, the Opposite Party Nos. 1 to 3 are jointly and/or severally directed to execute the deed of conveyance in favour of the complainants within 30 days from the date of delivery of possession in default the complainants may get the deed executed through the machinery of the commission; (iv) The Opposite Party Nos. 1 and 2 are jointly and/or severally directed to pay Rs. 20,000/- to the complainants as costs of litigation; (v) The payments in terms of the above order shall be made within 90 days from date.