Date of filing : 16.05.2014
Date of hearing : 06.04.2018
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 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, complainants’ case is that on 13.03.2007 they had entered into an Agreement with the Opposite Party to purchase of an apartment being numbered 1002 on 10th floor, Tower – 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 an undivided share in the common areas at a total consideration of Rs. 43,07,063/-. The complainants have stated that they have already paid a total sum of Rs. 41,59,597/- to the O.P. adhering strictly to the terms and conditions of the Agreement. The Opposite Party was under obligation to deliver possession by 31.03.2010. The complainants on several times requested the O.P. to deliver possession, issued notices and also claimed refund of the consideration amount with interest and compensation but it yielded no result. Hence, the complainants have lodged the complaint with prayer for direction upon the Opposite Party to refund the advance money of Rs. 41,59,597/-, to pay Rs. 25,00,000/- as compensation for causing mental pain and suffering and Rs. 1,00,000/- as cost of litigation.
The Opposite Party by filing a written version has admitted about the Agreement and payment of consideration amount by the complainants but stated that in response to the letter of the complainants dated 26.03.2014 they issued a letter on 29.03.2014 to the complainants and informed the status of the project and also gave the complainants a swap option of the flat. The O.P. has stated that as per terms of the Agreement they will pay compensation to the purchaser @ Rs. 5/- per sq. ft. per month as per terms of the agreement but as there is no deficiency the complaint should be dismissed.
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.
On perusal of pleadings and the evidence on record, it emerges that on 13.03.2007 the complainants had entered into an agreement with Bengal Unitech Universal Infrastructure Pvt. Ltd. (O.P.) to purchase of an apartment being numbered 1002 on the 10th floor at Tower – 09 having a super built-up area of 1475 sq. ft. approximately along with one car parking space and proportionate and undivided share in the common areas in the complex of O.P. being ‘Cascades’ in Uniworld City, New Town, Kolkata at a consideration of Rs. 43,07,063/-. It is not in dispute that as per terms of the Agreement, the complainants have already paid a total sum of Rs. 41,59,597/- i.e. almost 95% of the total consideration amount. In accordance with the terms of Agreement, the O.P. was under strict obligation and liability to deliver possession by 31.03.2010.
The fact remains that even after long 8 years after the committed date of possession, the Opposite Party has failed to deliver the possession. The Opposite Party has also failed to advance any Force Majeure circumstances which prevented them to comply with the terms and conditions of the Agreement.
It is well settled 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 authorised representative of O.P., who adduced evidence, in a questionnaire on behalf of complainants – ‘please clearly state the Force Majeure circumstances’ to which it was replied – ‘the Force Majeure circumstances have never arisen in respect of the said flat’. In another question whether the flat is ready for delivery of possession to the complainants to which it was replied that said flat was not ready for delivery at that point of time and the developer/builder gave the complainants a swap option in this regard.
It would be worthwhile to have a look to the letter dated 29.03.2014 given by the O.P. addressed to the complainants. In the said letter, the O.P. has stated that it would take 36 to 40 months to complete Tower – 09 where the apartment of the complainants is situated and gave swap option to the complainants but surprisingly enough, the said option letter does not show any description as to the flat or tower where the O.P. proposed to give it to the complainants. Moreover, the said option offering swap is optional to the complainants and O.P. cannot force the complainants to exercise that option.
Mr. S.K. Ghosh, Ld. Advocate for the complainants has submitted that non-delivery of possession within the stipulated period itself amounts to deficiency in service, more particularly when no Force Majeure circumstance has been advanced. In support of his contention, Ld. Advocate for the complainants has placed several decisions of the Hon’ble National Commission reported in – (1) III (2017) CPJ 534 [Belu Syal – vs. – Unitech High-tech Developers Ltd. & Anr.]; (2) III (2017) CPJ 556 [Ravikant Bhatt & Anr. – vs. – Unitech Ltd.]; (3) III (2017) CPJ 296 [M. Ahuja Project (India) Pvt. Ltd. – vs. – Lokeshwari Nagpure, Mukesh Kumar Janghel].
Mr. P.R. Bakshi, Ld. Advocate for the O.P., on the other hand, 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 the complainants did not avail the same, they 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, complainants are entitled to refund of the amount of Rs. 41,59,597/- paid by themselves as part consideration amount.
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.”
Ld. Advocate for the complainants, on the contrary, argued that the O.P. being developer has invested the money for commercial purpose and as such the complainants are entitled to an interest @ 18% on the amount paid. However, I do not find any pleading or evidence to that effect to justify the said claim.
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, the O.P. shall refund the amount 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:
(i) The Opposite Party shall refund the entire amount of Rs. 41,59,597/- (forty-one lakh fifty-nine thousand and five hundred ninety-seven) only to the complainants within 60 days from date along with compensation in the form of simple interest @ 10% p.a. from the date of each payment till realisation of the amount.
(ii) The Opposite Party shall pay a sum of Rs. 10,000/- as litigation cost to the complainants.
