Date of filing – 10.10.2013

Date of final hearing – 12.09.2017

            The instant complaint under Section 17 (inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of an intending purchaser against the developer (Opposite Party No.1) and its officers (Opposite Party Nos. 2 to 4) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.

          In a nutshell, Complainant’s case is that on receiving information that the developer is going to construct and develop several apartments in the complex known as ‘The Gateway’ on 34.783 acres of land at Kona Express Highway, Howrah filed an application on 17.08.2009 for registration/allotment of a residential apartment in the said complex and on that date the complainant paid an earnest money of Rs.2,85,105/- as per payment plan of the developer.  Thereafter, on 09.10.2009 the complainant entered into an Agreement for Sale with the OP No.1 to purchase of a flat being Apartment No.1404 on the 13^th floor in Tower-I having a super built up area approximately 1245 sq. ft. together with proportionate undivided share at a consideration of Rs.30,32,075/-.  The complainant states that as per terms of payment schedule, he has paid Rs.8,55,315/- as part consideration amount against the total consideration of Rs.30,32,075/-.  The complainant alleges that the developer/builder was under obligation to hand over the possession of within 36 months as per terms of the agreement but after expiry of the stipulated period, the developer did not ask the complainant to pay any amount or provide any information regarding the progress of construction and in this regard the requests and persuasions of the complainant including legal notice dated 05.07.2013 turned a deaf ear.  Hence, the complainant has come up in this Commission with prayer for several reliefs including a direction upon the OPs to complete the work of construction forthwith and to hand over the same and further to execute a Sale Deed, to return back the money of Rs.8,55,315/- along with probable interest of Rs.7,16,195/- totalling Rs.15,71,510/-, to pay compensation of Rs.1,00,000/- and litigation cost of Rs.30,000/- etc.

          The Opposite Party No.1 (developer/builder) by filing a written version has admitted that complainant is entitled to get refund calculating Rs.11,72,801/- including interest calculated as on 15.09.2013 and the complainant is not entitled to claim any further amount on any account whatsoever.

          Both the parties have tendered evidence through affidavits.  They have also filed reply against the questionnaire set forth by their adversaries.  Both the parties have also filed brief notes of argument. Both the parties have also relied upon the terms and conditions of agreement between the parties dated 09.10.2009.

          Undisputedly, the project ‘Gateway’ was launched by the OP No.1 on a piece of land at Kona Express Way, Mouza-Unsani, P.S.- Jagachha, Dist- Howrah and the said project comprised of various clusters.  On the basis of rosy picture of the project, the complainant agreed to purchase of a unit and to that effect on 17.08.2009 she applied for registration/allotment of a residential apartment in the said complex in respect of a unit being Apartment No.1404 on the 13^th floor, Tower No.-I.  It is also not in dispute that in accordance with the payment schedule, the complainant has paid a part consideration amount of Rs.8,55,315/- towards total consideration of Rs.30,32,075/-.  It also remains undisputed that after receiving three payments of Rs.2,85,105/- each the developer stopped demanding any payment and in fact the developer has failed to keep their promise as per terms of the agreement to provide the flat/unit to the complainant within the time frame.

          The OP No.1/developer in their written version has stated that due to global economic meltdown they had to rethink the idea for construction of expensive apartments and as such they revised their decision and submitted the plans of making smaller affordable apartments for providing opportunity of purchase within reasonable affordable prices.

          Ld. Advocate for the OP No1/developer has submitted that they were in constant touch with the KMDA for approval of the said plan but the sanctioning authority demanded deposit of 10% already deposited building sanctioned fee amounting to Rs.64,64,805/- and as they raised protest to the same, ultimately the revised proposal has not been approved even at the time of filing written version and as such there was no deficiency on the part of the developer.

          Seen the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.  It is well settled that everybody is bound by the terms of agreement being parties to the same.  In AIR 1996 SC 2508 (Bharati Knitting Co. – Vs. – DHL Worldwide Express Courier Division of Air Freight Ltd.) the Hon’ble Supreme Court has observed thus –

     “It is trite law that the terms of the agreement are binding between the parties.  A person who signs a document contains certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect.  When a party to the contract disputes the binding nature of the signed a document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents needs to be established”.

     The above proposition of law makes it quite clear that when the parties did not pick up any quarrel as to terms and conditions of the Agreement for Sale dated 09.10.2009 and the parties after verifying the terms and conditions put their signatures, certainly the terms and conditions of the Agreement for Sale towers above the rest.

          In Clause-5.a(i) of the Agreement, it was stipulated that the company shall make it best endeavours to deliver the possession of the apartment to the purchaser within 36 months from the date of execution of the agreement or approval of building plan whichever is later.  In Clause 5.e it has been agreed that if for any reason whatsoever, the developer is not in a position to offer the apartment, the developer shall offer an alternative apartment subject to availability of such alternative apartment or refund the amount in full with simple interest @ 10% p.a. without any further liability to pay any damages or compensation. 

          The overwhelming evidence goes to show that the OP No.1/developer could keep the promise to handover the flat within three years as promised.  The OP No.1 has also failed to provide any alternative accommodation to the complainant.

          Therefore, in view of the agreement arrived at by and between the parties, the OP No.1/developer is under obligation to refund the amount of Rs.8,55,315/- together with interest thereon @10% p.a. from the dates of payment till its full realisation.  The situation compelled the complainant to lodge the complaint and as such she is entitled to litigation cost which I assess at Rs. 10,000/-.

          Consequently, the petition of complaint is allowed on contest.  The Opposite parties are jointly and severally directed to refund Rs.8,55,315/- together with interest thereon 10% p.a. from the date of payments till its full realisation.  The OP No.1 is also directed to pay Rs.10,000/- as litigation cost in favour of the complainant within 30 days otherwise the amount shall carry interest @10% p.a. from date till its realisation.

           The Registrar of this Commission is directed to send a copy of this order to the parties at once free of cost for information and compliance.