PER: HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER.
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter refer to as ‘the Act’) is at the behest of a purchaser against a construction company (Opposite Party No.1) and its Regional Head (Opposite Party No.2) on the allegation of deficiency of services, primarily on the part of Opposite Party No.1 in a dispute of housing construction.
In a capsulated form, complainant’s case is that on 16.12.2011 she entered into an agreement for sale with the erstwhile OP No. 1 Company (Happy Highrises Limited) to purchase of a residential flat measuring about 1160 sq. ft. super built up area being Unit No. 1608 on the 16th floor in the Tower named ‘Shivalik’ together with right to use one covered car parking space measuring an area of 135 sq. ft. as mentioned in part- I and part -II of Third Schedule to the agreement for sale in the complex christened ‘Godrej Prakriti’ lying and situated at Municipal holding No. 187F/1, B.T. Road, P.S.- Khardah, Kolkata- 700115, Dist- North 24 Parganas within the local limits of Ward No. 14 of Panihati Municipality at a total consideration of Rs. 31,22,720/- for the flat and Rs. 3,00,000/- for the car parking space aggregating Rs. 34,22,720/-. The complainant has stated that in accordance with the payment schedule, she has paid the consideration amount regularly. In the agreement it was stipulated that the OP No. 1 company will deliver the subject flat in complete condition within 30.06.2014. Accordingly, the complainant enquired with the Opposite Party the reasons for non-delivery of possession, the Opposite Parties assured the complainant that they will try to hand over the possession within the extended time limit of 31.12.2014 and the complainant would be compensated for delayed delivery of possession. Subsequently, on 05.03.2016 the OP No. 1Company executed the sale deed in favour of the complainant and prior to that issued notice of possession on 25.08.2015. The complainant has stated that the OP company has not provided the compensation in terms of clause 15.5 of the agreement and also the common benefits and facilities and in this regard all the requests and persuasions including the legal notice went in vain. Hence, the complainant approached this Commission with payer for following reliefs, viz.- (a) an order directing the Opposite Parties to compensate the complainant with payment of interest for delayed delivery of possession of the Residential Unit No. 1608 on 16th floor of the Tower Named ‘SHIVALIK’ of the complex known as ‘GODREJ PRAKRITI’ lying and situated at the municipal holding No. 187F/1, B.T. Road, Kolkata-700115 for the period from 1st July 2014 to 25th September, 2015 @ 9% per annum amounting to Rs. 3,54,124/- along with further interest on Rs. 3,54,125/- for the period from 06.03.2016 till the actual date of payment @ 18% per annum; (b) an order directing the Opposite Parties to provide the complainant Completion Certificate, swimming pool, football ground, Multi-speciality Hospital, Retail Store, Sewerage Treatment Plant, Boundary wall at the project site to ensure adequate safety and security, electricity supply at the said Unit and provide each and every common facility and amenity in terms of the Deed of Conveyance dated 05.03.2016 in accordance with the promises and assurances given by the Opposite Parties; (c) an order directing the Opposite Parties to pay Rs. 3,00,000/- (Rupees Three Lakhs only) as compensation to complainant for deficiency in services for not providing several facilities including swimming pool, football ground, multi speciality hospital etc.; (d) an order directing the Opposite Parties to pay Rs. 75,000/- (Rupees Seventy Five Thousand only) as compensation to complainant for causing mental harassment and agony; (e) an order directing the Opposite Parties to pay a sum of Rs. 30,000/- (Rupees Thirty Thousand only) for legal expenses and other incidental costs etc.
The Opposite Party Nos. 1 and 2 by filing a written version have stated that the complainant with her full satisfaction had accepted the possession of the unit upon execution and registration of Deed of Conveyance dated 05.03.2016 and the complainant also declared by the letter dated 06.03.2016 about her no dues/no claim regarding the said unit. Therefore, the complaint should be dismissed with costs.
On behalf of Complainant one Sri Pinaki Guha Thakurta, Constituted Attorney of the complainant has tendered evidence through affidavit. The said person has also given reply against the questionnaire set forth by the OPs.
On the other hand, on behalf of OPs, one Sri Abhishek Mitra, Authorised Signatory of OPs has filed the evidence through affidavit. The said Abhishek Mitra has also given reply against the questionnaire set forth by the complainant. Besides the same, both the parties have relied upon the several documents. At the time of final hearing, both the parties have filed brief notes of argument in support of their respective cases.
The overwhelming evidence on record make it abundantly clear that the complainant had entered into an agreement with Happy Highrises Limited on 16.12.2011 to purchase of a residential unit being Unit No. 1608 on the 16th floor in the Tower named ‘Shivalik’ together with right to use one covered car parking space measuring an area of 135 sq. ft. as mentioned in part- I and part -II of Third Schedule to the agreement for sale in the complex christened ‘Godrej Prakriti’ lying and situated at Municipal holding No. 187F/1, B.T. Road, P.S.- Khardah, Kolkata- 700115, Dist- North 24 Parganas within the local limits of Ward No. 14 of Panihati Municipality at a total consideration of Rs. 31,22,720/- for the flat and Rs. 3,00,000/- for the car parking space aggregating Rs. 34,22,720/-.
It remains undisputed that on payment of entire consideration amount, the OP No.1 Company had issued notice of possession letter on 25.08.2015 and the Deed of Conveyance was executed on 05.03.2016.
Mr. N.R. Mukherjee, Ld. Advocate for the complainant submits that though the complainant has claimed several reliefs on various grounds including common facilities and benefits like swimming pool, football ground, Multi-speciality Hospital, Retail Store, Sewerage Treatment Plant, Boundary wall etc but as they are relating to common amenities /facilities, when no permission has been sought for to initiate a ‘class action’ in accordance with section 12 (1)(c) of the Act, the complainant is not entitled to any relief regarding common facilities and benefits. Therefore, he has confined his claim only in respect of his compensation drawing our attention to clause 15.5 to the agreement for sale executed between the parties. The relevant clause runs as follows:
“15.5. In the event there being no default on the part of the Purchaser, the Owner fails to deliver possession of the Unit within 30th June, 2014, the Owner shall pay interest on the amount to be paid by the Purchaser till that date at the rate of 9% per annum from 1st July, 2014 till the expiry of the notice of possession and adjustable with the last instalment. If the Owner fails to deliver possession of the said Unit to the Purchaser within 31st December, 2014, then this agreement would come to an end and the Owner shall refund to the Purchaser the entire amount paid by the Purchaser together with interest thereon at the rate of 9% per annum from 1st July, 2014 till the date of payment.”
Ld. Advocate for the complainant has submitted that as per the terms and conditions of the agreement, the complainant is entitled to interest @ 9% p.a. from 01.07.2014 till intimation of possession i.e. 25.09.2015 but when without paying any amount of compensation, OP No.1 Company has delivered the flat in question, it amounts to deficiency in services on the part of OP No.1 Company.
Mr. Rajarshi Datta, Ld. Advocate for the OPs, on the other hand, has contended that on 06.03.2016, the complainant has made a declaration-cum-undertaking whereby she has clearly mentioned that after full satisfaction, she took possession of the same and as such the complainant is not entitled to any relief.
The Ld. Advocate for the OPs has further submitted that Sri Pinaki Guha Thakurta, who deposed on behalf of the complainant on the strength of Power of Attorney, is not a competent person to depose as he has no knowledge about the transactions between the complainant and the OP company. To fortify his submission the Ld. Advocate for the OPs has placed reliance to a decision of Karnataka High Court reported in 2014 (1) ICC 915 (Abdul Basheer and Anr –vs- State of Karnataka and Ors).
At the outset it would be worthwhile to record that once the complaint was dismissed for default by order No. 8 dated 09.10.2018. However, by order of the Hon’ble National Commission dated 22.01.2019 in FA/2107/2018 to FA/2016/2018 the said order of dismissal was set aside and there is a direction to dispose of the complaint preferably within six months. Despite best effort, the complaint could not be disposed of within six months from the date on account of cease work observed by the members of the Bar Council of West Bengal for about long two months and further Puja Vacation for 15 days.
It should also not be out of place to mention here that during the pendency of the proceeding the name of Happy Highrises Ltd. was deleted and the name of Godrej Properties Ltd. was substituted in view of the order passed by the National Company Law Tribunal, Mumbai Bench dated 29.03.2017 in Transfer Company Scheme Petition No. 23 of 2017.
The materials on record make it quite clear that on 16.12.2011 the complainant had entered into an agreement with Happy Highrises Limited to purchase of a residential flat measuring about 1160 sq. ft. super built up area being Unit No. 1608 on the 16th floor in the Tower named ‘Shivalik’ together with right to use one covered car parking space measuring an area of 135 sq. ft. as mentioned in part- I and part -II of Third Schedule to the agreement for sale in the complex christened ‘Godrej Prakriti’ lying and situated at Municipal holding No. 187F/1, B.T. Road, P.S.- Khardah, Kolkata- 700115, Dist- North 24 Parganas within the local limits of Ward No. 14 of Panihati Municipality at a total consideration of Rs. 31,22,720/- for the flat and Rs. 3,00,000/- for the car parking space aggregating Rs. 34,22,720/-. As per terms of the agreement the OP company was under obligation to handover the subject flat within 30.06.2014 which may be extended till 31.12.2014 subject to payment of compensation. It remains undisputed that the sale deed was executed in favour of the complainant on 05.03.2006 and prior to that notice of possession was delivered to the complainant on 25.08.2015.
It is undisputed proposition of law that the parties are bound by the terms of Agreement. A person who signs a document contain certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect. In a decision reported in AIR 1996 SC 2508( Bharati Knitting Company –vs. – DHL Worldwide 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” .
Therefore, as per Clause 15.5 to the Agreement for Sale, the OP No.1 Company was under obligation to pay compensation @ 9% p.a. from 01.07.2014 till the date of notice of possession i.e. on 25.08.2015.
The contents of declaration-cum-undertaking given by the complainant dated 06.03.2016 are reproduces below:
“................. I/we have inspected the said flat and found the same to be complete in all respects, including the amenities and facilities agreed to be provided by you. After fully satisfying ourselves with regard to the measurements, construction quality, specifications and fittings/fixtures provided therein, I/we are taking quiet vacant and peaceful possession of the said flat and am/are satisfied with the same.
I/we confirm that the snacks notified by me/us have been rectified to my/our satisfaction. I/we hereby further acknowledged the receipt of keys of the said flat and confirm that there is no issue or obligation pending on your part under the Agreement for Sale. I/we do not have any claim against you in respect of the said flat”.
Giving emphasis to the last sentence, as recorded above, Ld. Advocate for the OPs has submitted that the complainant is not entitled to any compensation whatsoever after such declaration and undertaking. Ld. Advocate for the complainant, on the other hand, has contended that an agreement entered by and between the parties should get paramount consideration and there is hardly any scope on the part of either of the parties or even to the Court to rewrite the agreement in some other way and, therefore, the claim of compensation will not be withered away simply on the basis of declaration-cum-undertaking given by the complainant and as such the complainant is entitled to compensation.
Having heard both sides and keeping in view the facts and circumstances of the case coupled with the observation of the Hon’ble Supreme Court in the case of Bharati Knitting Company Pvt. Ltd. (supra), we have no hesitation to hold that when there was specific terms in the agreement that the OP No.1 Company will handover the possession within 30.06.2014 and failed to do so, certainly it amounts to deficiency in services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, when the OP No.1 Company with open eyes executed the Agreement for Sale with an undertaking to pay interests @9% p.a. on failure on their part to handover the possession within 30.06.2014, certainly the complainant is entitled to compensation in the form of simple interest from the committed date of possession i.e. from 01.07.2014 till the date of intimation of possession i.e. 25.09.2015. In this regard, the competency or incompetency of giving evidence by the constituted Attorney of the Complainant is irrelevant consideration because the Agreement of Sale itself indicates that the complainant is entitled to compensation in accordance with the terms of Agreement. Under compelling circumstances, the complainant has to come up in this Commission to lodge complaint and as such she is entitled to litigation cost which we quantify at Rs.10,000/-.
With the above discussion, complaint is allowed on contest with the following directions:
i) The Opposite Party No.1 Company Godrej Properties Ltd. is directed to pay compensation in the form of simple interest @ 9% p.a. over the amount of Rs.34,22,720/- to the complainant from 01.07.2014 till its realisation;
ii) The Opposite Party No.1 Company Godrej Properties Ltd. is directed to pay Rs.10,000/- to the complainant as costs of litigation;
iii) The above payments should be paid within 90 days in terms of the above order.
