Date of filing:24.08.2011

Date of final hearing: 22.07.2016

                                             PER HON’BLE MR. SAMARESH PRASAD CHOWDHURY,PRESIDING MEMBER

JUDGEMENT

        The instant consumer complainant Under Section 17 of the Consumer Protection Act, 1986 ( hereinafter referred to as “the Act “ ) is at the behest of intending purchasers on the allegation of deficiency in services on the part of the Opposite Parties in respect of a residential apartment being No. NRC 152 located on 14th floor at Tower C measuring about super built up of 1701 sq. feet along with a car parking space being No. NUC 055 in the New Town Heights under P.O. and P.S. New Town, Kolkata, West Bengal.

        In a nutshell, complainant’s case is that with an intention to purchase a flat, the complainant approached the O.P.’s and submitted an application on 23.11.2007 along with an application money of Rs.3,00,000/- by a cheque dated 31.10.2007 at a consideration of Rs.54,97,585/-. On 15.01.2008 the OP No.14 being representative of OP No. 1/Developer sent a letter of allotment along with a scheme of payments thereby confirming the allotment of the apartment mentioned above. Meanwhile on 10.12.2017 IDBI Bank Ltd. sanctioned a home loan facilities for an amount of Rs. 56,00,000/- in favour of complainant no.1 with an understanding to repay the loan amount in 216 EMIs of Rs.50,563/- each on  a floating rate of interest. After two months of the said allotment letter, the OP No.1/Developer started on sending demand notices asking the complainants to pay consideration money for the said flat. The complainants paid a total amount of Rs. 27,48,285.49 paise only till August, 2009. In the month August 2008, complainants received a printed “Apartment  Allotment Agreement Book” together with undated letter from OP No.1 asking the complainants to fill in the details of the complainants and  returned the Agreement Book duly signed without putting the dates. Finding no other option complainants complied with the same but when they did not received back the said agreement, complainant no.1 wrote a letter on 20.01.2009 to the OP No.13 to ascertain about the status of the agreement raising some issues like – reduction in prices by way of discount, a payment holiday of six months, clarification regarding delivery date and complainants copy of agreement for sale. On 03.02.2009, OP No. 14 on behalf of OP No.1 informed that they shall complete the project within 36 months from the date of signing of the agreement and asked complainant no.1 to make the balance amount or to incur interest @ 18% p.a. for the delays. The complainants alleged that the OP No.1 deceptively put as 21.10.2008 as the date of agreement in order to increase construction periods to 48 months. On 06.03.2009, OP No.1 wrote to the complainants mentioning about the payment scheduled. The complainant submits that  being a salaried person with limited means owning a house being an inevitability inner-most ambition in life he puts her heard earned savings in purchase to fulfil his dreams but  the Opposite parties have dishonestly incorporated in the Agreement Book a Clause of penalty. Ultimately, 29.03.2011 complainant no.1 received    the letter from the developer formally intimating him about cancellation of the apartment. Hence, the instant complaint with prayer for certain reliefs, viz. – (a) a direction upon OP No.1 to withdraw the letter dated  29.03.2011 ; (b) a direction upon the Opposite Parties to handover the flat in question alternatively to pay compensation of Rs.43,12,3763.09 paise ; (c) award of compensation of Rs. 50,00,000/-etc.

        The Opposite Parties by filing a joint written version disputed and denied all the material allegations levelled against them. The opposite parties categorically stated that on 15.01.2008 the complainants had been allotted the flat and car parking space in question. On 21.10.2008, an Apartment Allotment Agreement was executed by and between OP No.1 as the developer and the complainants as the purchaser in respect of the said apartment whereby the complainants   accepted the terms and conditions set out in the said agreement along with the payment schedule. However, in view of the successive  defaults in payment committed by the complainants, the OP No.1 was compelled to terminate the agreement on 21.10.2008 vide letter dated 26.05.2010 and thereafter the  OP No.1/developer allotted the said flat to one Smt. Satti Bhargava on 09.06.2011 and as such the complaint is liable to be dismissed.

        On the basis of contention of the parties, the following points are framed for adjudication:-

        (1) Is the complaint case maintainable?

        (2)Are the Complainants ‘consumer’ within the meaning of Section 2(1)(d) of the Act ?

        (3) Is there any deficiency in services on the part of the Opposite Party No.1 ?

        (4)Are the Complainants entitled to the relief or reliefs, as prayed for ?

        In order to prove their case Shri Arun Kedia, complainant No.1 has tendered evidence on affidavit, against which questionnaire was set forth by the Opposite Parties  to which reply has been filed on behalf of the Complainants.

        Similarly, on behalf of the Opposite Parties Shri Manish Kumar, authorised signatories of OP No.1 filed evidence on affidavit to which questionnaire has been filed on behalf of the Complainants reply thereto has been filed by the contesting Opposite Party.

         Besides the same, both the parties have relied upon some documentary evidence in respect of their respective cases.

         On the basis of the materials available on the record we shall proceed to discuss how far the Complainants have been able to substantiate their case.

DECISION

        Point Nos. 1 to 4 :

        The above three points are taken up together for the convenience and to skip reiteration.

        Admittedly, on 23.11.2007 the complainants in order to purchase of an apartment being No. NRC 152 located on 14th floor at Tower C measuring about super built up of 1701 sq. feet along with a car parking space being No. NUC 055 in the New Town Heights, Action Area - III under P.O. and P.S. New Town, Kolkata, West Bengal signed  an application form and made over to the OP No.1 a sum of Rs. 3,00,000/- as booking amount by way of a cheque dated 31.10.2007 drawn on Hong Kong & Shanghai Bank at  Shakespeare Sarani Branch. On 15.01.2008, the OP No.1/developer allotted the complainants the residential apartment as mentioned above for a total consideration of Rs. 54,97,585/-.  In the said allotment letter, a payment scheduled was appended. It is also not in dispute that on 21.10.2008 an Apartment Allotment Agreement was executed by and between OP No.1 /developer on the one hand and the complainants /intending purchaser on the other hand whereby the complainants accepted the terms and conditions set out in the agreement along with the payment schedule. Now, according to the payment schedule the complainants were under obligation to make payment as per terms of the agreement. The complainants in their petition of complaint have averred that they have paid a total amount of Rs.27,48,285.49 paise only till August, 2009.

        The evidence on record clearly speaks that the complainants defaulted in making payments. On 02.01.2009, the OP No.1 wrote a letter to complainant being reminder -1 asking the complainant no. 1 to remit a sum of Rs. 4,12,216.65 paise positively on 31.12.2008. Again on 19.01.2009 OP No.1/developer issued Reminder II to the complainant No.1 drawing his attention to the Demand Notice dated 04.12.2008 and Reminder I letter dated 02.01.2009. It would be pertinent to note that by demand notice dated 04.01.2008 the OP No.1 asked the complainant No.1 to deposit the amount due for payment on 31.12.2008.

        Ultimately, on 20.01.2009 complainant no.1 and his wife Smt. Sunita Kedia wrote a letter to the C.E.O. of M/s. DLF Ltd. requesting OP No.1 to reduce the prices by way of discount to all the customer and to allow the complainants a payment holiday of at least six months so that he may avail to manage his cash flows and start paying again after six months and no interest should be charged during that period. By a reply dated 03.02.2009 on behalf of OP No.1/developer complainant no.1 was informed that they will unable to reduce price as  current market price of the apartment enhanced from Rs.2875 per sq. feet to Rs.3200 per sq. feet and it has also been informed that the developer are expected to handover the project within  36 months from the date of  signing the agreement as per Apartment Allotment Agreement.

        Finally, by a letter dated 19.10.2011 the OP No.1 cancelled the agreement and refund the balance amount of Rs. 9,46,183.22 paise  to complainant by way of an A/C Payee Cheque. The said letter of cancellation indicates break up –

                A. Total amount paid -      ...           Rs. 27,49,690.86

            B. Less : Earnest Money    ...           Rs.   3,00,000.00

             Interest on delayed

              payment                            ...          Rs.10,07,587.64

              Stamping charges              ...          Rs.              80.00

            Refunded to                                       

            IDBI Bank                           ...          Rs.13,95,840.00

Total amount deducted                  ...          Rs.18,03,507.64

Balance refundable (A-B)              ...          Rs.  9,46,183.22 .

         It is trite law that the parties are bound by the terms of the agreement. In fact, both the parties have signed the agreement with open eyes evaluating its pros and corns. Therefore, nothing can be added or detracted from the terms and conditions of the contract . Therefore, the agreement the parties towers above the rest. In this regard, the decisions of National Consumer Commission referred by the Ld. Advocate for the  OP No. 1/developer  dated 04.04.2002 in RP No.1916/2000 (T.V Sundaram Iyengar & Sons Ltd. -  vs. – Dr. Muthuswamy  Duraiswamy  & Anr. ) and the decision dated 15.05.2008 in FA No.88/2008 (  Anshuman Das Gupta – vs. – FIITJEE & Ors. ) appear to be relevant.  It is quite apparent that the complainants have violated the Clause 14 and 17 of the general terms and conditions and also non-complying with the Clause 12 of the Apartment Allotment Agreement by not paying the payment in accordance with the schedule of payment.

        Ld. Advocate appearing for the opposite Party no.1 has submitted that when the complainant has failed to make payment as per terms of the agreement, they cannot take advantage of their own wrong. To fortify her contention, Ld. Advocate for the O.P. no.1 has placed reliance to several decisions of National Consumer Commission like (1) decision dated 22.01.2010 in FA /464/2005 (Baij Nath – vs. – Lucknow Development Authority); (2) Judgement dated 19.01.2010 in FA/283/2005 (Jagdish Gurnani –vs. - Lucknow Development Authority); (3) decision dated 19.11.2009 in RP/3371/2007 (Karnataka Housing Board & Ors. –vs. – R. Shankar).

        The pith and substance of all those decisions unerringly lead to hold that when complainant failed to perform his contractual obligation of making payment of the amount as per schedule of the agreement and thereby defaulted in payment on wholly untenable grounds, the  opposite party /developer is entitled in law not to perform their part and deny possession of the apartment in favour of the complainant.

         In view of the above, when I do not find any deficiency in services on the part of the developer. Certainly, though the complainant is Consumer as defined in Section 2(1)(d) of the Act yet the complainant is not entitled to any relief. Therefore, the complaint is liable to be dismissed.

        All the points are decided and disposed of accordingly.

        In the result, complaint fails. It is, therefore,

ORDERED

        That the instant consumer complaint is dismissed on contest. Considering the facts and circumstances of the case, however, there will be no order as to costs.