The instant complaint under Section 17 (inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of an intending purchaser against the developer/builder (Opposite Party No.1) and the landowner (Opposite Party No. 2) on the allegation of deficiency in services on the part of Opposite Party No.1 in a consumer dispute of housing construction.

          In a capsulated form, Complainant’s case is that  in order to purchase of a residential apartment, he approached the OP No.1 and accordingly an allotment was given by OP No.1 to purchase of a self-contained flat measuring about 1270 sq. ft. being Apartment No.SK/S/4/2D , 2^nd floor in Block-4 in the building named ‘Swarnarag’ and one car parking space which is a part of project named ‘Sisir Kunja’ lying and situated at Premises No.27 & 74, Jessore Road, P.S.- Madhyamgram, Kolkata – 700129, Dist- North 24 Parganas within the local limits of Madhyamgram Municipality at a total consideration of Rs.23,43,500/- for the apartment and Rs.1,75,000/- for car parking space aggregating a total sum of Rs.25,24,500/-.  The complainant has stated that he has paid the entire consideration amount.  As per terms of the Agreement, the OP No.1 Company was under obligation to deliver possession within 36 months from the date of agreement but they failed to keep their promise.  The complainant has also stated that the OP No.1 has deviated the plan and has made some irregularities in the matter of construction.  In this regard, all his requests and correspondences went in vain.  Hence, the complaint with prayer for several reliefs, viz. – (a) a direction upon the OP No.1 for rectifying the defect of construction; (b) to handover the flat free from all defects; (c) to handover the possession immediately without imposing any condition; (d) to provide Occupancy Certificate/Completion Certificate; (e) to pay Rs.73,22,010/- as compensation and Rs.30,000/- as litigation cost etc.

                    The Opposite Parties by filing a written version have stated that the complainant after taking possession of the scheduled flat has intentionally raised the question regarding the constructional work over the scheduled flat and started to delay the registration process and put various types of objections beyond the GTC.

          Both the parties have tendered evidence through affidavit.  They have also given reply against the questionnaire set forth by the adversaries.  The parties have also relied upon some documents including Allotment Letter dated 29.10.2009 and the General Terms and Conditions (GTC) forming the part of Allotment Letter.  At the time of final hearing, a brief notes of argument has been filed on behalf of the complainant.

          The pleading of the parties and the evidence on record make it abundantly clear that the OP No.1 is a joint sector company with West Bengal Housing Board (OP No.2) and decided to develop a property converting the same into a multi-storied commercial-cum-residential complex christened ‘Sisir Kunja’ on Jessore Road, Madhyamgram.  The complainant in order to purchase one apartment in the said project approached  OP No.1 and accordingly, on 29.10.2009 an apartment being No.SK/S/4/2D  on the 2^nd floor in Block-4 in the building named ‘Swarnarag’ and one car parking space which is a part of project named ‘Sisir Kunja’ lying and situated at Premises No.27 & 74, Jessore Road, P.S.- Madhyamgram, Kolkata – 700129, Dist- North 24 Parganas within the local limits of Madhyamgram Municipality was allotted to the complainant  at a total consideration of Rs.23,43,500/- for the apartment and Rs.1,75,000/- for car parking space aggregating a total sum of Rs.25,24,500/-.  Admittedly, complainant has paid the entire consideration amount.  As per terms of the Agreement, the OP was under obligation to handover or delivery the possession of the subject flat to the complainant within three years from the date of issuance of Allotment Letter and in this regard, GTC was executed which do form part of the allotment letter.

          It is trite law that the parties are bound by the terms of the agreement.  Both the parties have signed the agreement with open eyes evaluating its pros and cons and therefore, nothing can be added or detracted from the terms and conditions of the contract.  Therefore, the agreement between the parties towers above the rest.  In AIR 1996 SC 2508 (Bharti Knitting Co. – Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.) the Hon’ble Supreme Court has observed thus –

          “In an appropriate case where there is acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court establish 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”. 

          In this backdrop, let us see Clause-11 of GTC which provides that the company shall make endeavour to give possession of the apartment to the allottee within 36 months from the date hereof subject to receipt of all payments.  It is not in dispute that complainant has paid the entire consideration amount.  The force majeure circumstances does not apply in the instant case because there is no evidence whatsoever that there was non-availability of steel and/or cement and/or other building materials or water supply or electric power or slow down, strike for due to a dispute with the construction agency or any litigation etc. 

          Therefore, as per terms of the Agreement, the OP No.1 Company should have handed over the possession to the complainant within 29.10.2012 positively.  Evidently, only on 08.02.2013 the OP No.1 Company issued demand notice for payment of 5^th and final instalment before possession.  It signifies that the OP No.1 Company could not keep their promise in handing over possession as per their commitment in accordance with Clause 13 of the Agreement and agreed to pay compensation for such delay.  So, it is quite apparent that the OP No.1 Company was deficient in rendering services towards the complainant in handing over the subject flat within the time frame.

          So far as allegation of complainant in respect of alleged deficiency in construction is concerned, the complainant did not take any pain to prove such deficiencies by appointing a technical person to substantiate the same.  It is the cardinal principle of evidence that best evidence must always be given.  Therefore, when the complainant has withheld the best evidence by seeking appointment of an Engineer Commissioner to establish his allegation as to deviation in the matter of construction, the said allegation has no leg to stand upon.

          In view of the materials available on the record, when it becomes quite clear that the OP No.1 Company was scheduled to hand over the apartment within three years from the date of Allotment Letter (29.10.2009), has failed to fulfil their promise, they must pay compensation in accordance with Clause 13 of GTC.  Considering the loss suffered by the complainant, I think he is entitled to compensation in the form of interest @ 10% p.a. from the committed date of delivery of possession i.e. from 29.10.2012 till 08.02.2013.  As the situation compelled the complainant to lodge complaint, he is also entitled to litigation cost which I quantify at Rs.10,000/-.

          The complaint is, therefore, allowed on contest in part against OP No.1 and dismissed against OP No.2 with the following directions –

1. The Opposite Party No.1 is directed to deliver possession and to execute the Deed of Conveyance in respect of the property as mentioned in the Allotment Letter as well as GTC dated 29.10.2009 in favour of the complainant within 90 days from date after obtaining Completion Certificate/Occupancy Certificate;
2. The Opposite Party No.1 is directed to pay compensation in the form of simple interest @ 10% p.a. from the date of committed date of possession i.e. from 29.10.2012 till 08.02.2013 over the amount of Rs.25,24,500/-;
3. The Opposite Party No.1 is directed to pay litigation cost of Rs.10,000/- in favour of the complainant;
4. The payment in terms of this order shall be made within two (2) months from this date.