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 Developer/Builder on the allegation of deficiency in services on the part of them in respect of a flat and car parking space in a dispute of housing construction.

          Succinctly put, the complainants’ case is that on 19.07.2007 they had entered into an Agreement for Sale with the Opposite Party to purchase of an apartment being numbered 1402 on the 13^th floor, Tower No. 09 having a super built-up area of 1475 sq. ft more or less in the complex of ‘Cascades’ in Uniworld City, New Town, Kolkata along with one covered car parking space and proportionate undivided share in the common areas at a total consideration of Rs. 50,03,625/-.The complainants have stated that they have already paid total sum of Rs. 47,39,371/- to the O.P. adhering strictly to the terms and conditions of the agreement. The opposite party was under obligation to deliver possession by 30.06.2010 but they failed to keep their promise. The complainants time and again requested the O.P. to deliver possession, but all their requests and persuasions including legal notices went in vain. Hence, the complainants have lodged the complaint with prayer for following reliefs, viz.- (a) to admit the complaint; (b) to issue show cause notice upon the Opposite Party named in the complaint; (c) to direct the O.Ps. to complete construction and hand over the possession of the flat on the 13^th floor, Tower No. 09, measuring approximately 1475 sq. ft. in the complex ‘Cascades’ in the Uniworld City, Kolkata, West Bengal; (d) O.P. be directed to execute and register a Deed of Conveyance transferring the title of the aforesaid flat in favour of the complainants; (e) interest @ 12% on the Rs. 47,39,371/- from 1^st July, 2010 to 31^st January, 2016 i.e. Rs. 31,75,378/- round about Rs. 31,75,000/-; (f) pay compensation for mental agony and physical harassment assessed at Rs. 2,00,000/-; (g) pay litigation cost of Rs. 1,00,000/- and to pass any such further direction and/or directions order and/or orders, as the Hon’ble Commission may deem fit and proper in the matter.

          The opposite party by filing a written version has admitted the existence of agreement between the parties in respect of property in question and also admitted the factum of payment of Rs. 47,39,371/- by the complainants but it has been stated that they are ready and willing to complete the project and perform its obligation in terms of the agreement and in this regard they will pay compensation to the purchaser @ Rs. 5 per sq. ft. per month for the period of delay in offering the delivery of the same and the period indicated in the agreement. The opposite party has also stated that they are willing to give to the complainants an option of swap in apartment where possession of such apartment may be made available at an earlier date with nearly some specification and, therefore, the complaint should be dismissed with costs.

          Both the parties have tendered evidence on affidavit. They have also given reply against questionnaire set forth by their adversaries. At the time of final hearing both the parties have also filed brief notes of arguments in support of their respective cases.

          Having heard the Ld. Advocates appearing for the respective parties and on perusal of pleadings and the evidence available on the record, it emerges that on 19.07.2007 the complainants had entered into an agreement with Bengal Unitech Universal Infrastructure Pvt. Ltd. (O.P.) to purchase of an apartment being numbered 1402 on the 13^th floor, Tower No. 09 having a super built-up area of 1475 sq. ft approximately along with one car parking space and proportionate undivided share in the common areas in the complex of O.P. being ‘Cascades’ in Uniworld City, New Town, Kolkata at a total consideration of Rs. 50,03,625/-. It is not in dispute that as per terms of the agreement, complainants have already paid Rs. 47,39,371/- i.e. almost 95% of the total consideration amount. In accordance with the terms of agreement, the O.P./builder was under obligation to deliver possession positively by 30.06.2010.

          Admittedly, even after expiry of long 8 years after the committed date of possession, the O.P. has failed to deliver the possession. In this regard, O.P. has also failed to advance any Force Majeure circumstances which prevented them to comply with the terms and conditions of the agreement.

          It is trite 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 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”

          Ld. Advocate for the complainants has submitted that non-delivery of possession within the stipulated period itself amounts to deficiency in services, more particularly, when no Force Majeure circumstances has been advanced by the O.P. He has further submitted that the amount of compensation for the delay as mentioned in clause 5.c.ii of the agreement which provides compensation of Rs. 5/- per sq. ft. per month for the delay in offering delivery of the said apartment is much less than the amount of 18% claimed by the O.P. in case of delay in payment of instalments within time. Placing reliance to a decision reported in III (2016) CPJ 572 [Bhupinder Singh – vs. – Unitech Ltd.] the Ld. Advocate for the complainants has submitted that the complainants are entitled to an interest at least 12% as claimed by the complainants in the prayer clause of the petition of complaint.

          On the other hand, Ld. Advocate for the O.P. has contended that due to delay in payment of instalments by the consumers, the developer/builder is facing difficulties in constructing the project and to overcome the situation when swap option was given to the complainants and further the O.P. is ready and willing to pay compensation in the form of interest in accordance with the terms of agreement, the complainants are not entitled to any relief.

          Having heard the Ld. Advocates appearing for the parties when it stands proved that despite of having received more than 95 % of the consideration amount, the O.P. has failed to deliver possession of the said apartment to the complainants and further advanced no explanation for failure to comply with the stipulation of delivery of possession, I have no hesitation to hold that the Opposite Party has committed deficiency in services and also has indulged in unfair trade practice. Therefore, the complainants are entitled to an order for direction upon the opposite party to complete the construction, to hand over the possession of the flat within a time frame and also to execute and register the Deed of Conveyance transferring the title of the apartment in favour of the complainants.

          Now, the only point remains for consideration as to what should be the amount of compensation. Ld. Advocate for the O.P. has drawn my attention to Clause 5.c.ii of the Agreement which reproduces below : -

          “That the Developer would pay to the Purchaser compensation @ Rs. 5/- per sq. ft. per month for the period of delay in offering the delivery of the said Apartment beyond the period indicated in clause 5.a.(i), save and except for reasons beyond the reasonable control of the Developer and the Force Majeure events specified in this Agreement. These charges would be adjusted at the time of final notice of possession. The Developer will not be under any other liability to pay damages or any other compensation to the purchaser.”

          On reading of clause 5.c.ii, it appears that this clause is applicable only in cases where the Opposite Party fails to deliver possession of the apartment within the stipulated time and the compensation is to be paid every month for the delay.

          For the purpose of adjudication on the point of compensation, in our case, it would be relevant to regard clause 5.e which provides alternative property/compensation. The said clause reproduces – “That if for any reason the Developer is not in a position to offer the Apartment herein applied for allotment, the Developer shall offer the Purchaser an alternative property or refund the amount in full with simple interest @ 10% per annum without any further liability to pay any damages or compensation.”

          On perusal of the above, it is quite clear that if for any reason, the O.P. is not in a position to offer possession of the apartment as an alternative relief, the O.P. shall refund the amount of Rs. 47,39,371/- with simple interest @ 10% p.a. without any further liability.

          It remains undisputed that the O.P. has failed to deliver possession of the apartment even after 8 years after the expiry of committed date of possession. Thus, in my view, this is a case of O.P. not being in a position to offer possession of the apartment as an allottee cannot be expected to wait for possession of the apartment for an indefinite period.

          Therefore, in view of the above clause, the O.P. is liable to pay simple interest @ 10% on the deposited amount as compensation for his default.

          In view of the above discussion, the complaint is allowed with the following directions:

1. The Opposite Party is directed to complete the construction and to hand over the possession of the apartment to the Complainants as per agreement dated 19.07.2017 positively by 15.08.2018;
2. The Opposite Party is directed to execute the Deed of Conveyance in respect of the apartment as per agreement dated 19.07.2017 in favour of the Complainants within 31.08.2018 positively, alternatively opposite party shall refund the entire amount of Rs. 47,39,371/-(forty-seven lakh thirty-nine thousand and three hundred seventy-one) to the Complainants within 31.08.2018 along with compensation in the form of simple interest @ 10% p.a. from the date of each payment till realisation of the amount;
3. The Opposite Party shall pay a sum of Rs. 10,000/- to the Complainants as costs of litigation;
4. The balance amount of Rs.2,64,254/- payable by the Complainants shall be adjusted by Opposite Party out of the compensation payable to them in terms of the order.