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 son and his father/intending purchasers against the Developer/Builder Company on the allegation of deficiency in services on the part of developer company in respect of a flat and car parking space in a dispute of housing construction.

          Succinctly put, the Complainants’ case is that being allured by an advertisement about the complex in Uniworld City by the Opposite Party Company, the complainants filed an application on 12.05.2012 for a residential apartment in the complex christened ‘Harmony’ in Uniworld City to be developed by OP Company on a plot of land situated at Action Area-III, New Town, Kolkata.  On that date the complainants paid an amount of Rs.7,73,592/- and on payment of the same, an allotment letter was issued in favour of the complainants.  Subsequently, on 05.06.2012 an allotment agreement was executed and the OP Company agreed to sell a residential apartment measuring about 1893 sq. ft. being Apartment No.0302 on the 3^rd floor in Tower No.01 along with one covered car parking space for exclusive use within the complex named ‘Harmony’ in Uniworld City, Action Area-III, New Town, Kolkata at a total consideration of Rs.78,47,041/-.  The complainants have stated that in accordance with the payment schedule, they have already paid Rs.62,33,053/- 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 30.11.2014 subject to force majeure circumstances.  The complainants have alleged that from the very beginning, the OP Company is showing dilly delaying practice to progress the work of construction and choose not to reply their letter to know about the status of construction of the apartment/building and also the estimated date of possession of the said apartment.  In this regard, all their attempts and persuasions including correspondences went in vain.  The complainants submit that on 20.08.2015 they visited the construction site and found that there is virtually no progress in the work and it remained more or less at the same stage when the complainants booked the flat in 2012.  Hence, the complainants have approached this Commission with prayer for following reliefs, viz. – (a) to direct the OP to make payment of interest upon the payment paid by them @ 18% p.a. from committed date of possession i.e. from 30.11.2014 till the date of handing over possession of the flat and car parking space alternatively, to direct the OP to refund Rs.62,33,053/- along with interest @ 18% p.a. or alternatively to direct the OP to handover peaceful possession of the flat and car parking space complete in all respects along with all facilities and amenities as per Agreement dated 05.06.2012 and to make payment of interest calculated from 30.11.2014 upon the paid amount @ 18% p.a. compounded quarterly; (b) to pay compensation of Rs.15,00,000/- for harassment and mental agony;  (c) litigation cost of Rs.50,000/- 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 30.11.2014.  However, the delay in construction is attributed to delays in obtaining statutory infrastructural provisions pertaining to road, electricity, water, sewerage, sanctions etc. beyond control of them but the construction of Uniworld City is steadily progressing.  The OP has stated that as per terms of the agreement, they are ready to pay compensation to the purchaser @ 5% per sq. ft. per month for the period of delay in offering the delivery of the flat and the same will be adjusted at the time of issuance of final notice of possession to the complainants.

       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 Agreement for Sale dated 05.06.2012.  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 complainants being the applicants filed an application on 12.05.2012 for allotment of a residential apartment measuring about 1893 sq. ft. being apartment No.0302 on 3^rd  floor, Tower -01 and one covered car parking space in the basement of the said tower in the complex ‘Harmony’ in Uniworld City, Action Area –III, New Town, Kolkata at a total consideration of Rs.78,47,041/- under construction linked plan.  The complainants had booked the said apartment on payment of Rs.7,73,592/- through a cheque on the self-same date.  On that date, 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 05.06.2012 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.62,33,053/- as part consideration amount through account payee cheques on diverse dates in favour of OP Company towards the 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 36 months from the date of agreement, precisely within 30.11.2014.

       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”.

          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 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.  Therefore, according to him, the complainants are legally entitled to seek refund of money which they have paid to OP Company along with appropriate compensation.  He has also placed reliance to a judgement of the Hon’ble National Commission in CC/398/2015 [Sipra Thomas –Vs. – Bengal Unitech Universal Infrastructure Pvt. Ltd.] and claimed refund of the amount along with interest @18% p.a.

          On the other hand, Ld. Advocate for the O.P. has contended that the Hon’ble Supreme Court of India by its order dated 08.09.2017 passed in Special Leave to Appeal (Criminal) Nos. 5978-5979/2017 [Sanjoy Chandra & Ors. – Vs. – State Government of NCT of Delhi] appointed Mr. Pawan Shree Agarwal as Amicus Curiae.  The Hon’ble Supreme Court directed the Amicus Curiae to file a chart containing details of all the projects and the name of the consumers and the amount deposited with the OP Company.  Accordingly, the Amicus Curiae created a web-portal to collect data from flat buyers.  Accordingly, the complainants have claimed refund in serial no. 9535 and provided the relevant details of the case number.  Therefore, the complainants are not entitled to relief from this Commission.  Ld. Advocate for the complainants has drawn our attention to the Order No.20 dated 04.01.2019 where an application filed by the OP Company being IA/1051/2018 whereby the OP Company has made a prayer for stay of the proceeding was disposed of with an observation of Hon’ble Supreme Court – “If any proceeding is pending against the petition and company, that may continue and the final order be passed, but no coercive step will be taken for executing the order .....”.  The said order has attained finality as the OP Company has not challenged the said order in any higher Forum.  Therefore, the submission made by the Ld. Advocate for the OP Company does not stand.

       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 30.11.2014, 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, the apartments shall be handed over to the purchaser in the 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, in their evidence on affidavit, the OP Company has stated that all floor casting and brick work of Tower-01 are complete.  The OP Company was under obligation to handover the apartment within 30.11.2014.  The delay has already been committed for about long five years from committed date of delivery of possession.  The complainants’ apartment to be constructed on the 4^th floor and the dilly-delaying process of the OP Company clearly indicates that there is hardly any chance for the complainants to get the apartment in near future.

    In that perspective, it would be pertinent to have a look to Clause 5.e of the Buyers’ Agreement, which appears to be relevant for the purpose of ascertaining the compensation to be awarded in the present case. Clause 5.e of the Agreement is dealt with alternative property/compensation which is set out below –

   “That if for any reason the developer is not in a position to offer the apartment herein applied for apartment, 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”. 

   The evidence on record suggests that the complainants were very much regular in payment for having shelter over their head and as such they had paid a total sum of Rs.62,33,053/- i.e. about 85% of the total consideration amount and it is evident that there is hardly any chance on the part of complainants to get their flat during their life time.

   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 has failed to fulfil their part of obligations as per Buyers’ Agreement dated 05.06.2012 and thereby deficient in rendering services towards the complainants 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, any direction to deliver possession would be a meaningless one and therefore alternative relief to refund the amount of Rs.62,33,053/- along with compensation in the form of simple interest @ 10% p.a. from the date of each payments till its realisation will meet the ends of justice.  Under compelling circumstances, the complainants have to knock the door of this Commission and therefore, complainants are entitled to litigation cost which we quantify at Rs.20,000/-.

          With the above discussion, we dispose of the complaint with the following directions –

1. The Opposite Party is directed to refund Rs.62,33,053/- along with compensation thereon in the form of simple interest @ 10% p.a. from the date of each payment till its realisation;
2. The Opposite Party is directed to pay Rs.20,000/- to the complainants as costs of litigation.;
3. The above payments must be paid within 60 days from date positively.