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 couple intending purchasers 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 Complainants’ case is that being allured by an advertisement about the construction of a complex in Uniworld City by the Opposite Party Company, the complainants submitted an application on 24.04.2006 for a residential apartment in the complex christened ‘Heights’ 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 complainants paid an amount of Rs.3,65,688/- through two cheques.  On payment of the same, an allotment letter was issued in favour of the complainants on 26.04.2006.  Subsequently, on 06.05.2006 Buyer’s Agreement was executed between the parties and the OP Company agreed to sell a residential apartment measuring about 1693 sq. ft. being Apartment No.1002 on the 10^th floor in Tower No.09 along with one covered car parking space for exclusive use within the complex named ‘Heights’ in Uniworld City, Action Area-III, New Town, Kolkata at a total consideration of Rs.39,11,880/-.  The complainants have stated that in accordance with the payment schedule, he has already paid Rs.36,92,056/- as part consideration amount towards the said total consideration amount.  The complainants have 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 30.09.2009 subject to force majeure circumstances.  The complainants have alleged that the OP Company could not deliver the possession of the flat to them within the time frame and in this regard, all the requests and persuasions including the legal notice dated 20.01.2016 could not alter the situation.  Hence, the complainants approached this Commission with prayer for several reliefs, viz. – (a) an order directing the OP to refund of amount of Rs.36,92,056/- with interest @ 12% p.a. over the said amount from 30.09.2009 to 29.02.2016; (b) to direct the OP to pay damages in terms of Clause 5.c (ii) under Article 5 of the Agreement dated 06.05.2005 from 01.10.2009 to 29.02.2016; (c) to pay compensation of Rs.20,00,000/- for harassment and mental agony; (d) to direct the OP to pay litigation cost of Rs.1,00,000/-.

     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, 2009 but they could deliver the possession of the subject flat on 13.07.2016 and also adjusted the amount as per Clause 5.c(ii) under Article 5 of the Agreement dated 06.05.2005 till 15.03.2016.  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 06.05.2006.  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 is transpired that the complainants being the applicants filed an application on 24.04.2006 for allotment of residential apartment measuring about 1693 sq. ft. super built up area being residential apartment No.1002 on the 10^th floor in Tower -09 along with one covered car parking space in the basement of the said tower in the complex ‘Heights’ in Uniworld City, Action Area –III, New Town, Kolkata at a total consideration of Rs.39,11,880/- including club charges under construction linked plan.  The complainants had booked the said apartment on payment of Rs.3,65,924/- by way of two cheques.  On 26.04.2006, the OP Company issued an allotment letter along with payment schedule to the complainants intimating the complainants that the complainants had been allotted the said apartment.  Subsequently, on 06.05.2006 the Buyer’s Agreement was executed between the parties.  It is also not in dispute that the complainants had paid a total sum of Rs.36,92,056/- 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 complainants within 30^th September, 2009.

      In the written version, the opposite party took the plea of Force Majeure circumstances by stating that the construction of ‘Heights’ 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”.

          Mr. Somnath Gangopadhyay, Ld. Advocate for the Complainants, has submitted that the amount of compensation for the delay as mentioned in Clause 5.c.(ii) of the agreement the OP Company agreed to pay a sum of Rs.5/- per sq. ft. per month to the complainants.  The OP has claimed to have paid a sum of Rs.6,85,100/- on account of delayed delivery of possession but such amount agreed to be paid by OP Company on their own terms inasmuch as the Agreement for Sale was created by the developer in dotted line in their own desire and as such the complainants is entitled to compensation much more than what is mentioned in the Agreement for Sale.

          Mr. Abhik Kumar Das. Ld. Advocate with Mr. P.R. Baksi, Ld. Advocate for the OP inviting our attention to the possession letter has submitted that the complainants have received possession of the subject flat and the car parking space on 13.07.2016 and subsequently, on 28.07.2016 the Sale Deed was executed in favour of the complainants and the complainants have received the possession with full satisfaction and when the OP Company has refunded Rs.6,85,100/- as deduction towards Article 5.c(ii) of Buyer’s Agreement and adjusted the same in the statement of accounts as on 15.03.2016, the complaint should be dismissed.

          We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and seen the materials on record including the Buyer’s Agreement dated 06.05.2006.  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 by 30^th September, 2009.... 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 between the parties that various Blocks/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 Block/Tower”. 

     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 complainants 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, the complainants have taken the possession of the apartment and the car parking space as agreed upon on 13.07.2016 and an amount of Rs.6,85,100/- has been adjusted for the delay in delivery of possession till 15.03.2016 as per Clause 5.c (ii) of the Agreement and the complainants accepted it without raising any objection, the complainants 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.6,85,100/- as on 15.03.2016 and the possession of the apartment was handed over on 13.07.2016, the complainants being purchaser are entitled to compensation @ Rs. 5/- per sq. ft. per month for the period between 15.03.2016 and 13.07.2016.  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 complainants being ‘consumer’ as defined in Section 2(1)(d) of the Act hired the services of OP Company on consideration  and OP Company has failed to fulfil their part of obligations as per Buyers’ Agreement dated 06.05.2006 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 complainants are entitled to some reliefs.  In our view, a direction upon the OP Company to make payment of compensation @ Rs. 5/- per sq. ft. per month for the period between 15.03.2016 and 13 07.05.2016 will meet the ends of justice. Under compelling circumstances, the complainants have to approach this Commission and therefore, complainants are entitled to litigation cost which we quantify at Rs.20,000/-.

          With the above discussion, we allow the complaint on contest with the following directions –

1. The Opposite Party is directed to pay compensation for the delay in delivery of possession as per Article 5.c (ii) of Buyer’s Agreement dated 06.05.2006 @ Rs. 5/- per sq. ft. per month for the period between 15.03.2016 and 13.07.2016;
2. The Opposite Party is directed to pay Rs.2*0,000/- to the complainants as costs of litigation.;
3. The above payments must be paid within 60 days from date positively.