The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of an intending purchaser against the developer/builder on the allegation of deficiency in services on the part of them in a dispute of housing construction.
Succinctly put, complainant’s case is that on 16.06.2007 he had entered into an Agreement with the Opposite Party to purchase of an apartment being numbered 1801 on 17th floor, Tower – 05, The Gate Way Cluster -1 measuring an area about of 1918 sq. ft. lying and situated at South of Kona Express Way, Howrah and proportionate undivided share in the common areas at a total consideration of Rs. 52,71,800/-. The complainant has stated that he has already paid a total sum of Rs. 45,62,238/- to the O.P. adhering strictly to the terms and conditions of the Agreement. The Opposite Party was under obligation to deliver possession by 30.09.2010. The complainant has stated that he was in continuous touch with the OP but OP deliberately delaying the registration of the property. Finding no other option, when the complainant was looking for to knock the door of Court, the OP had sent first letter in connection to handover the flat on 29.08.2013. On 27.12.2014 the complainant sent a legal notice asking the OP to rectify the error by registering the Deed of Conveyance by 15.01.2015 but it remains unattended. Hence, the complaint with prayer for following reliefs, viz. (a) a direction upon the OP to register the Deed of Conveyance; (b) to pay compensation of Rs.10,00,000/-; (c) to direct OP to pay interest of Rs.26,57,048/- for the period between 30.09.2010 and 29.08.2013; (d) cost of litigation etc.
The Opposite Party by filing written version has admitted about the Agreement and payment of part consideration amount by the complainant but stated that on 29.08.2013 they issued letter to the complainant intimating that the apartment is ready for pre-possession and the same should be considered as final notice in terms of the said agreement. Thereafter, they issued a reminder letter on 10.11.2014 to the complainant intimating the apartment is ready for possession since long and as such the complainant is liable to pay holding charges as per clause 5C(i) of the Agreement from the date of possession of the letter till the date of actual physical possession.
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 16.06.2007 the complainant had entered into an agreement with Bengal Unitech Universal Infrastructure Pvt. Ltd. (O.P.) to purchase of an apartment being numbered 1801 on 17th floor, Tower – 05, “The Gate Way” Cluster 1 measuring an area about of 1918 sq. ft. lying and situated at South of Kona Express Way, Howrah and proportionate undivided share in the common areas at a total consideration of Rs. 52,71,800/-. It is not in dispute that as per terms of the Agreement, the complainant has already paid a total sum of Rs. 45,62,238/- i.e. almost 90% 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 30.09.2010.
The fact remains that the OP could not keep their promise and only on 23.08.2013 they could obtain partial Occupancy Certificate under Rule 63(2) of Howrah Municipal Corporation Building Rules, 1991 from Howrah Municipal Corporation. Immediately, on 29.08.2013 the Opposite Party issued a letter to the complainant including statement of accounts informing that the actual physical possession of the flat shall be handed over within 21 days of submission of possession letter at project site. The fact remains that the complainant did not adhere to the same for which a reminder letter was issued to the complainant on 10.11.2014 but the complainant sit tight over the matter. Ultimately, on 27.12.2014 the complainant through his Advocate wrote a letter to OP/developer calling upon them to execute the Deed of Conveyance within 15.01.2015, to pay interest of a sum of Rs.26,57,048/- over the amount of Rs.45,62,238/- for the period from 30.09.2010 to 29.08.2013.
It is trite law that the parties are bound by the 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”
Admittedly, the Opposite Party has failed to deliver possession within the time frame i.e. within 30.09.2010 and after obtaining partial Occupancy Certificate from the Howrah Municipal Corporation on 23.08.2013 issued notice of possession to the complainant on 29.08.2013. Therefore, for non-delivery of possession of the apartment within the time frame, the OP was deficient in rendering services to the complainant. Therefore, the complainant is entitled to compensation for the period between 01.10.2010 and 29.08.2013. Now, Clause 5.C(ii) of the Agreement deals with compensation for delay in possession which rewrites below –
“(ii) Compensation for delay in possession:
THAT subject to the payment of all dues and save as stipulated herein, the Developer would pay compensation charges @ Rs.5/- per sq. ft. per month for the period of delay in offering the delivery of the said Apartment beyond the period indicated above in Article 5.a(i). 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 Allottee(s)”.
Therefore, in accordance with the above clause contained in the Agreement, the complainant is entitled to compensation @ Rs.5/- per sq. ft. per month for the delay in offering the delivery of possession of the subject apartment from 01.10.2010 to 29.08.2013.
Ld. Advocate for the Opposite Party drawing my attention to Clause 5.c(i) of the Agreement has contended that despite notice dated 29.08.2013 and the reminder dated 10.11.2014 when the complainant without taking any step for getting the Deed register in favour of him after payment of balance consideration amount, as per terms of the said clause, the complainant shall be liable to pay holding charges @ Rs.5/- per sq. ft. per month from 30.08.2013 till the date of actual delivery of possession. Ld. Advocate for the OP referring to Rule 63(2) of the Howrah Municipal Corporation Building Rules, 1991 has contended that the complainant intentionally did not pay the balance consideration amount just to obtain compensation from a Forum constituted under the Act. Ld. Advocate for the complainant, on the other hand drawing my attention to the contents of notice dated 29.08.2013 and the reminder dated 10.11.2014 has submitted that the flat was not ready for delivery of possession.
After hearing the Ld. Advocates for the parties, I find substance in the contention of the Ld. Advocate for the complainant because the contents of notice dated 29.08.2013 indicates that the final coat of painting, fixing of CP fittings, electrical fixing were still to be done. However, after reminder dated 10.11.2014 where the OP was preparing themselves to execute the Deed of Sub Lease and to hand over physical possession to the complainant, the complainant had no occasion to issue a legal notice on 27.12.2014 to OP, particularly when OP agreed to execute the Deed of Conveyance.
Needless to say, the complainant had a good case but when notice of possession was issued, the complainant had no reason to approach this Commission without waiting for the final settlement as to whether the OP is deducted the amount as compensation for delayed delivery of possession or not. At the same time, I must say that in the reminder letter dated 10.11.2014 the OP had no reason to claim holding charges of Rs.1,29,465/- and Misc. Expenses (Docs, Chrs, Gas & Elec.) of Rs.2,68,520/- without giving any explanation to the same. Now, the OP has no authority to collect the said amount from the complainant. In any case, since the complainant himself contributed negligence to take delivery of possession and to get the Deed executed in favour of him after notice dated 29.08.2013, the complainant is not entitled to any compensation for delay in delivery of possession. As the situation compelled the complainant to lodge complaint, he is entitled to compensation which I quantify at Rs.10,000/-.
In view of the above discussion, the complaint is allowed with the following directions:
- The Opposite Party is directed to deliver possession and to execute the Sub Lease Deed in respect of the apartment as mentioned in the Agreement dated 16.06.2007 in favour of the complainant within 60 days from date subject to payment of balance consideration of Rs.7,09,562/-;
- The Opposite Party is directed to pay compensation charges @ of Rs.5/- per sq. ft. per month from 01.10.2010 till 29.08.2013;
- The Opposite Party shall pay a sum of Rs. 10,000/- as litigation cost to the complainants;
- The balance amount payable by the complainant shall be subject to adjustment of compensation amount at the time of delivery of possession.
