The instant complaint under Section 17(inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of an intending purchaser against the developer/builder company (O.P.No.1) represented by Sri Basant Sethia( O.P. No.2) and Sri Shivaji Ghosh, Co-ordinator (O.P.No2) on the allegation of deficiency in services on the part of Developer in a dispute of housing construction.

          In a nutshell, Complainant’s case is that on 23.07.2014 and on 05.02.2015 she entered into an agreement with O.P.No.1 to purchase of a flat measuring about 785 sq.ft. super built-up area on the 3^rd floor being Flat No.3E in Block-F and also a car parking space on the ground floor in a newly constructed building lying and situated at Premises No. 298, Boral Main Road, P.S. Sonarpur, Kolkata 700154, Dist South 24 Parganas at a total consideration of Rs.23,62,850/- and  Rs.3,00,000/- respectively. The Complainant has stated that she has already paid Rs.11,10,645/- to the O.Ps on the diverse dates as  part consideration amount towards the said total consideration amount. It was stipulated that the flat will be handed over within 31.12.2016 with a grace period of 6 months. However, the O.Ps have failed to keep their promise. Complainant by two letters dated 05.06.2017 and 20.07.2017 demanded return of the amount but the requests including notice through the Advocates dated 23.08.2017 went in vain. Hence the Complainant has approached this Commission with prayer for following reliefs, viz.- (a) to direct the O.Ps to refund Rs.11,10,645/-; (b) to direct the pay compensation of Rs.7,00,000/-; (c) to pay litigation cost of Rs.40,000/-.

          Despite service of notice, the O.Ps have neither appeared nor filed written version. Under compulsion, the complaint was heard ex-parte.

          Complainant has tendered evidence on affidavit. Besides the same, Complainant relied upon several documents including the Sale Agreements dated 23.07.2014 and 05.02.2015.

          The contents of Petition of complaint and the evidence on record including documentary evidence make it manifestly clear that on 23.07.2014 and on 05.02.2015 complainant had entered into an agreement with O.P.No.1 to purchase of a flat measuring about 785 sq.ft. super built-up area on the 3^rd floor being Flat No.3E in Block-F and also a car parking space on the ground floor in a newly constructed building lying at situated at Premises No. 298, Boral Main Road, P.S. Sonarpur, Kolkata 700154, Dist South 24 Parganas at a total consideration of Rs.23,62,850/- and  Rs.3,00,000/- respectively. The relevant agreements indicate that O.P.No.2 being Director of O.P.No.1 construction company had put his signature in the Agreement for sale on behalf of the company as well as the Land owners. In fact, the land owners had entered into a development agreement with O.P.No.1 construction company on 28.03.2012 and they also executed a General Power of Attorney in favour of O.P.No. 2 being Director of O.P.No.1 company.

       The overwhelming evidence on record indicate that on diverse dates the complainant has paid Rs.11,10,645/-  to O.P.No.1 company as part consideration amount to purchase the subject flat. As per terms of the Agreement, the O.P.No.1 company was under obligation to hand over the subject flat in favour of the complainant within December, 2016. The relevant clause as referred in Article-V (inner page 14) provides-

      “5.2 Unless prevented by circumstances beyond its control the said building wherein the said flat is situated and/or the said flat shall be erected and completed on or before DECEMBER, 2016 with a grace period of 6 months (hereinafter referred to as the COMPLETION DATE)”

      The Developer has not appeared to contradict or controvert the statements of the complainant coupled with the terms of the Agreement. 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”

      Considering the facts and circumstances of the case and the proposition of law laid down by the Hon’ble Apex Court, the O.P.No.2 being Director of O.P.No.1 company when failed to fulfil the commitment, the complainant being a “Consumer” within the meaning of Section 2(1)(d) of the Act has every right to claim refund on account of deficiency in services on the part of Developer in rendering services under Section 2(1)(g) read with Section 2(1)(o) of the Act.

      As there is no privity of contract exists between the complainant and O.P.No.3, no liability can be attributed upon O.P.No.3

    In view of the above, complaint is allowed ex-parte against O.P. Nos. 1 and 2 and dismissed against O.P.No.3 with the following directions: –

1. The Opposite Party Nos. 1 and 2 are jointly and severally directed to refund Rs.11,10,645/- in favour of the complainant;
2. The Opposite Party Nos. 1 and 2 are jointly and severally directed to pay compensation in the form of simple interest @12% from the date of payments till the date of its realisation;
3. The Opposite Party Nos. 1 and 2 are jointly and severally directed to pay litigation cost of Rs.10,000/- to the complainant;
4. The above payments must be made within 60 days from date in default the amount shall carry interest @9% p.a. from date till its realisation.

The Registrar of the Commission is directed to send a copy of the order to the parties to the case free of costs for information and compliance.