PER: HON’BLE MR. SAMARESH PRESAD 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 purchaser against the Developer/Builder Company on the allegation of deficiency in services on the part of Developer Company in a dispute of housing construction.
Succinctly put, the Complainant’s case is that being allured by an advertisement about the complex in Uniworld City by the Opposite Party Company, the complainant filed an application on 24.08.2010 for a residential apartment in the complex christened ‘Vistas’ in Uniworld City to be developed by OP Company on a plot of land situated in Action Area-III, New Town, Kolkata. On that date the complainant paid an amount of Rs.3,32,924/- through a cheque and on payment of the same, an allotment letter was issued in favour of the complainant on 09.09.2010. Subsequently, on 23.09.2010 Buyer’s Agreement was executed between the parties and the OP Company agreed to sell a residential apartment measuring about 1226 sq. ft. being Apartment No.0603 on the 6th floor in Tower No.09 along with one covered car parking space for exclusive use within the complex named ‘Vistas’ in Uniworld City, Action Area-III, New Town, Kolkata at a total consideration of Rs.36,62,268/-. The complainant has stated that in accordance with the payment schedule, he has already paid Rs.34,45,805/- as part consideration amount towards the said total consideration amount. The complainant has stated that as per terms of the agreement, the OP Company would have to handover the possession of the subject flat and car parking space within 36 months from the date of agreement, precisely within September, 2013 subject to force majeure circumstances. The complainant has alleged that the OP Company could not deliver the possession of the flat to him even after 74 months from the date of agreement. The complainant has submitted that for the delay in delivery of possession, there was a stipulation of payment of Rs.5/- sq. ft. per month as compensation by the OP Company is extremely negligible. Hence, the complainant approached this Commission with prayer for several reliefs, viz. – (a) refund of amount of Rs.35,38,028/- with interest @ 14% p.a. quarterly compounded alternatively to deliver possession with compensation; (b) compensation of Rs.1,00,000/- for harassment and mental agony etc.
The Opposite Party/development company by filing a written version has stated that as per terms and conditions the company was under obligation to give possession of the apartment to the complainants within September, 2013 but they could deliver the possession of the subject flat on 09.12.2016 and also adjusted an amount of Rs.2,32,940/- for the reasons of delivery of possession as per terms of the agreement. Therefore, the complaint should be dismissed with cost.
During hearing of the case, both the parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. Both the parties have also relied upon some documents including the Buyer’s Agreement for Sale dated 23.09.2010. Both the parties have also filed brief notes of arguments in respect of their respective cases.
On perusal of pleadings and the evidence on record it transpires that the complainant being the applicant filed an application on 24.08.2010 for allotment of residential apartment measuring about 1226 sq. ft. super built up area being residential apartment No.0603 on the 6th floor, Tower -09 along with one covered car parking space in the basement of the said tower in the complex ‘Vistas’ in Uniworld City, Action Area –III, New Town, Kolkata at a total consideration of Rs.35,62,268/- under construction linked plan. The complainant had booked the said apartment on payment of Rs.3,32,924/- through a cheque dated 01.09.2010. On 09.09.2010, the OP Company issued an allotment letter along with payment schedule to the complainant intimating the complainant that the complainant had been allotted the said apartment. Subsequently, on 23.09.2010 the Buyer’s Agreement was executed between the parties. It is also not in dispute that the complainant had paid a total sum of Rs.34,45,805/- as part consideration amount through account payee cheques on diverse dates in favour of OP Company towards the said total consideration amount. In the agreement, it was stipulated that the OP Company will hand over the subject flat/apartment in complete habitable condition to the complainant within 36 months from the date of agreement, precisely within September, 2013.
In the written version, the opposite party took the plea of Force Majeure circumstances by stating that the construction of ‘Harmony’ in Uniworld City has been delayed for obtaining statutory infrastructural provisions pertaining to road, electricity, water, sewerage, sanction etc. beyond the control of them.
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”.
The Complainant, who appeared in person has 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 judgement/final order of the Hon’ble National Commission in CC/1046/2015 [Vikas Kaul & Anr. – Vs. – M/s. Unitech Ltd.] he has submitted that considering the abnormal delay on the part of OP in completing the construction and inability to offer possession as on today, the complainants have committed clear deficiency in rendering services and entitled to an interest @ 18% p.a. from the committed date of possession i.e. from 01.10.2013 till the date of actual delivery of possession.
On the other hand, Ld. Advocate for the O.P. Company has contended that the possession of the subject flat was delivered to the complainant on 09.09.2016. Drawing our attention to statement of account as on 01.12.2016 he has submitted that an amount of Rs.2,32,940/- has been adjusted for charges as per article-5.c (ii) of Buyer’s Agreement and the complainant has accepted the delivery of possession without raising any dispute of the same and as such the complainant cannot claim any amount as compensation in the form of interest from the OP Company.
For appreciation of the present dispute, let us see the relevant terms and conditions of the agreement. Clause 5.a of the agreement pertains to possession which rewrites below-
“(i). That the developer shall make its best endeavours to deliver the possession of the apartment to the purchaser within 36 months from the date of the execution of the agreement to sell or approval of the building plan whichever is later, subject, however, to ‘Force Majeure circumstances and after all dues in respect of the apartment including stamp duty and registration charges as applicable have been paid. It is, however, understood by the Company and the purchaser that various Towers comprised in the Complex shall be ready and completed in phases and after completion of the Apartment shall be handed over to the prospective purchaser(s) of respective Towers”.
The Force Majeure circumstances has been mentioned in Clause 9.a of the Agreement which provides that if the completion of apartment is delayed for reasons of Force Majeure which inter alia include delay on account of non-availability of steel, cement or any other building materials or water supply or electricity power back-up or slow down, strike or due to dispute with the construction agency employed by the developer, civil commotion or war or criminal action or earth quake or any act of God, delay in certain decisions/clearance from the statutory bodies or any notice, order, rule or notification of the Government or any public or any competent authority or any change in the policy of government/statutory bodies or for any other reason which are beyond the control of the developer. But it reveals that no such occurrence has happened. The delay in handing over the possession of the apartment could have been justified if there was to be a new legislation, regulation or order suspending, stopping or delaying the construction of the complex and the apartments.
The fact remains that the O.P./Developer has failed to advance any evidence as to reasons on delay in handing over the apartment to the complainant as per clause 5.a of the terms of agreement. The O.P Company has raised some Force Majeure circumstances but none of them appeared to be acceptable. The delay in handing over the possession of the apartment could be justified if there was to be new legislation, regulation or order suspending, stopping of delaying the construction of the complex and the apartments. Therefore, the Force Majeure circumstances are totally inapplicable in the facts and circumstances of the present case.
Evidently, by letter dated 09.09.2016 the OP Company has mentioned that they are just one step away from delivering the flat to the complainant. The letter cannot be considered as possession letter, rather the possession certificate has been issued on 09.05.2017 and the complainant received the possession of the subject apartment along with the right to use one car parking space bearing No.466 (open) in the Complex on the said date. Since the complainant has taken the possession of the apartment and the car parking space as agreed upon and an amount of Rs.2.32.940/- has been adjusted for the delay in delivery of possession as per Clause 5.c (ii) of the Agreement and the complainant accepted it without raising any objection, the complainant cannot claim any other interest other than which has been mentioned in Clause 5.c (ii) of the Buyer’s Agreement. The relevant clause is reproduces below –
“That subject to the payment of all dues by Allottee(s) and save and stipulated herein, the company would pay 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 above clause 5.a.(i). These charges would be adjusted at the time of final notice of possession whereby the Allottee(s) is advised to clear the outstanding dues. The Company will not under any other liability to pay damages or any other compensation to the Allottee(s).”
In terms of the above clause of Buyer’s Agreement, when it reveals that the OP Company has paid charges as per article 5.c (ii) of Buyer’s Agreement an amount of Rs.2,32,940/- as on 01.12.2016 and the possession of the apartment was handed over on 09.05.2017, the complainant being purchaser is entitled to compensation @ Rs. 5/- per sq. ft. per month for the period between 01.12.2016 to 08.05.2017. Since the OP Company did not pay the said amount, certainly they were deficient in rendering services.
On evaluation of materials on record, it transpires that the complainant being ‘consumer’ as defined in Section 2(1)(d) of the Act hired the services of OP Company on consideration and OP has failed to fulfil their part of obligations as per Buyers’ Agreement dated 23.09.2010 and thereby deficient in rendering services towards the complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainant is entitled to some reliefs. In our view, a direction to make payment of compensation @ Rs. 5/- per sq. ft. per month for the period between 01.12.2016 to 08.05.2017 will meet the ends of justice. Under compelling circumstances, the complainant has to knock the door of this Commission and therefore, complainant is entitled to litigation cost which we quantify at Rs.20,000/-.
With the above discussion, we dispose of the complaint with the following directions –
- The Opposite Party is directed to pay compensation for the delay in delivery of possession as per Clause 5.c (ii) of Buyer’s Agreement dated 23.09.2010 @ Rs. 5/- per sq. ft. per month for the period between 01.12.2016 to 08.05.2017;
- The Opposite Party is directed to pay Rs.10,000/- to the complainants as costs of litigation.;
- The above payments must be paid within 60 days from date positively.
