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 respect of a flat and car parking space in a dispute of housing construction.

          Succinctly put, the complainant’s case is that complainant had applied for a flat being No.0402 in Block-02 at the Gateway (Cluster-I) being developed by Havelock Properties Ltd. (OP) lying and situated at besides Kona Express Highway, Dist-Howrah having super built up area of 1468 sq. ft. together with car parking space at a total consideration of Rs.39,68,400/- and the same was allotted by the Opposite Party through an Allotment Letter dated 18.05.2017.  As per the allotment letter, the complainant had paid the booking amount of Rs.3,65,352/- on 12.05.2007 and further the complainant had paid the first instalment of Rs.3,66,000/- on 31.10.2007.  The complainant alleged that the OP was under obligation to complete the flat within September, 2010 but the OP has failed to complete the said flat and thereby they have violated the terms and conditions of the Agreement.  Suddenly, on 06.12.2012 the OP had intimated through a letter that they had cancelled the allotment of the flat due to non-payment of instalment.  The complainant by a letter through their Advocate dated 24.03.2013 informed the OP that she is willing to pay the remaining outstanding amount but by a reply, the OP did not express any willingness to that effect.  The complainant states that at present she is willing and ready to pay the balance outstanding amount but OP is not ready to make the registration of the said flat in favour of her and thereby deficient in rendering services.  Hence, the complainant has filed the complaint with prayer of the following reliefs, viz. – (a) to direct the OP to execute and register the property in favour of the complainant at Rs.40,28,400/-; (b) to pay compensation of Rs.1,00,000/- for harassment and mental agony; (c) Rs.50,000/- as cost of litigation etc.

          The Opposite Party/builder by filing a written version has stated that pursuant to the allotment letter, several demand letters dated 04.12.2007, 14.12.2007, 20.03.2008, 03.02.2009, 16.03.2009, 29.07.2009, 30.09.2009, 28.10.2009, 03.02.2010, 31.03.2010, 13.07.2010 and 07.10.2010 were sent to the complainant for payment of instalments in accordance with the terms of the agreement between the parties.  Despite repeated reminders and demand letters, the complainant had failed and neglected to make payment aggregating to Rs.31,51,992/- as on 07.10.2010.  Ultimately, by a letter dated 06.12.2012 the OP compelled to cancel the agreement. 

During hearing of the case, complainant has tendered evidence on affidavit. She has also given reply against the questionnaire set forth by the opposite party. On the other hand, on behalf of O.P., one Sri Gour Saha, Authorised Signatory has filed evidence on affidavit. The said Gour Saha has also given reply against the questionnaire put forward by the complainant.

On perusal of pleadings and the evidence on record and the brief notes of arguments filed by the OP it becomes abundantly clear that the complainant had signed an application from on 18.05.2017 issued by the OP for allotment of a residential apartment being No.0402 on the 4^th floor at Tower-02 measuring about 1468 sq. ft. super built up area along with one covered car parking space at the Complex developed by OP named ‘The Gateway’ on a plot situated besides Kona Express Highway, Dist-Howrah at a total consideration of Rs.40,28,400/- including club membership under construction linked plan.  At the time of booking, the complainant paid Rs.3,67,000/- as the booking amount by way of a cheque dated 12.05.2017.  Accordingly, on 18.05.2017 an allotment letter along with payment schedule was issued to the complainant under construction linked payment plan. 

The materials on record indicate that pursuant to the allotment letter, the OP wrote several letters to the complainant on 03.07.2007, 06.09.2007, 28.09.2007 and 01.10.2007 for payment of the first instalment.  Initially one cheque issued for an amount of Rs.3,66,000/- being No.792613 drawn on Standard Chartered Bank dated 31.10.2007 was dishonoured.  However, on the request of the complainant, the same cheque was deposited on 13.11.2007 and it was encashed.  Thereafter, the OP had issued several demand letters as well as reminders on 01.10.2007, 04.12.2007, 14.12.2007, 20.03.2008, 03.02.2009, 16.03.2009, 29.07.2009, 30.09.2009, 28.10.2009, 03.02.2010, 31.03.2010, 13.07.2010 and 07.10.2010 to the complainant for payment of instalments in accordance with the terms of agreement between the parties.  However, the complainant did not adhere to the said demand letters or reminders.

Since it was a payment linked construction, it would be worthwhile to note the Payment Plan as per terms of the Agreement and the payments made by the complainant and as such a table to that effect is given herein below:

                                                                              Total outstanding = Rs. 31,51,992/-

It is trite law 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”

It is well settled a defaulter cannot maintain a consumer complaint.  The complainant took the plea that the OP did not raise any construction and as there was no progress in the construction of the project, she did not make payment of any instalment.  However, the acts and conducts of the complainant speaks otherwise.  In  Questionnaire Nos. 15 to 17, in her reply, the complainant has admitted that she paid Rs.3,65,352/- on 12.05.2007 and also paid Rs.3,65,000/- in October, 2007 and she stopped the payment as the project was not completed and delayed.  The explanation given by the complainant is totally unsatisfactory.  The complainant being a party to the agreement should have honoured the terms of the agreement because after knowing the pros and cons of the Agreement, she agreed to put her signature in the payment plan annexed to the letter of allotment.  Evidently, on several occasions, the OP sent demand letters and reminders to the complainant for payment of instalments but the complainant has shown masterly inactivity in complying with the requests and reminders of OP.  Had there been any doubt on the part of complainant about progress of construction, she could have taken up the matter with the OP by letters and correspondences but unfortunately she remained silent and when the agreement was cancelled on 06.12.2012, she raised hue and cry.  In fact, on the following date of obtaining partially occupancy certificate from the Howrah Municipal Corporation, the complainant has cancelled the allotment letter.

Therefore, when it is quite apparent that the complainant herself defaulted in payment of instalments and as such it cannot be said that the OP was deficient in rendering services.  In fact, the complainant attempted to bricks without straw does not bring the desired result for which no liability can be attributed upon the OP.  Accordingly, the complainant is not entitled to any relief for a direction upon the OP to handover possession or to execute and register the Sale Deed in favour of the complainant.

However, it remains undisputed that complainant has paid Rs.3,67,000/- on 18.05.2007 and Rs.3,65,532/- on 13.11.2007.  Therefore, the question comes for consideration as to whether the entire amount paid by the complainant will be forfeited in accordance with clause 2.f of the Agreement.  For appreciation of the situation, it would be worthwhile to reproduce clause 2.f which deals with Failure/Delay in payment below –

“That in the event Allottee(s) fails to pay any instalment(s) with interest within 90 days, from the date of such payment, the Developer shall have the right at its sole option to cancel the Allotment and forfeit the entire amount of Earnest money/Application amount deposited by the Allottee(s) and the Allottee(s) shall be left with no right, claim or lien on the said apartment.  The amount paid, if any, over and above, the Earnest money/Application amount shall be refunded by the Developer without interest after adjustment of interest accrued on the delayed payment(s), if any or any other charge due from the Allottee(s)”. 

It would be pertinent to record that in clause 2.c (Payment Plan) it was agreed that in the event of delay in payment of any instalment in accordance with the Payment Plan, the allottee shall be liable to pay interest calculated from the due date of outstanding amount at Rs.18% p.a. compounded quarterly.  On the contrary, clause 5.c(ii) (Compensation for delay in possession) it was stipulated that subject to payment of all dues, 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) which signifies that the developer/OP was under obligation to deliver possession of the apartment to the allottees by 30.09.2010. 

What I find from the record is that only on 05.12.2012 the OP could obtain a partial occupancy certificate from the Howrah Municipal Corporation meaning thereby the project has not yet completed and the OP has failed to keep their promise to deliver possession within the stipulated period.

It can hardly be disputed that a term of this nature [ (Clause 2.c) vis-a-vis Clause 5.c(ii)] is wholly one sided, unfair and unreasonable.  The builder charges interest @ 18% p.a. compound interest and on the other hand they are paying only Rs.5/- sq. ft. per month for the period of delay subject to payment of all dues.  Such a term in the agreement encourages the builder to divert the funds collected by them from one project to another project being undertaken by them.  If the builder is made to pay only paltry compensation, this may result in a situation where completion of the flats is unjustified delayed by the builder for an indefinite time and this case is also an example to the same.  However, as the complainant has failed to make payment as per agreed terms and conditions, certainly the complainant is not entitled to any relief for delivery of possession and execution of Sale Deed in her favour but on a meaningful reading of Clause 2.f it would be clear that the complainant is not entitled for refund of earnest money of Rs.3,67,000/- but under the present scenario, the complainant is certainly entitled to refund of Rs.3,65,532/- paid as first instalment on 13.11.2007. 

Ld. Advocate for the OP has submitted that when there is no prayer in the Prayer Clause of the petition of complaint for refund of any amount, complainant is not entitled to the same.  Since the complainant has made a prayer for execution and registration of the Deed of Conveyance as per terms of the agreement, it implies that in case of failure she is entitled to alternative relief for refund of money, if any entitled to get.  In the instant case, considering the nature of agreement and the facts and circumstances, I am of the view that the complainant is entitled to refund of Rs.3,65,532/- as indicated above.

In view of the above, I dispose of the complaint with a direction upon the opposite party to refund Rs.3,65,532/- in favour of the complainant within 30 days from date otherwise the amount shall carry interest @ 10% p.a. from date till its realisation.