PER: HON’BLE MR. SAMARESH PRASAD CHOWHURY, PRESIDING MEMBER

            The instant complaint under Section 17 (inadvertently mentioned under Sections 11 & 12) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a couple/intending purchasers against the developer/builder i.e. Kolkata West International City Pvt. Ltd. (KWIC) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.

          Succinctly put, Complainants’ case in brief is that on 14.07.2006 they applied to the Opposite Party for allotment of a Row House category 8x15, Plot No. C/05/10 which includes 120 sq. mt. built up area of 1910.18 sq. ft. approximately at a total consideration of Rs.34,46,500/- at KWIC Township and along with the said application, they paid a sum of Rs.3,40,000/- as application money.  The OP accepted the said application and in token of such acceptance issued its Provisional Allotment Letter dated 07.10.2006.  It was agreed that the OP would complete the said unit in all respect within 30.06.2008 and there would be a grace period of 6 months and total cost is non-escalable.  Pursuant to the said allotment letter, the complainants have paid a total sum of Rs.31,01,850/- on diverse dates.  On 02.07.2007 the parties signed and executed a buyer’s agreement.  The complainants alleged that time to time they have made requests to the OP to deliver the unit but OP has caused delay and could not keep their promise.   Hence, the complainants have come up in this Commission with prayer for several reliefs, viz. – (a) to direct the OP to handover the possession of Unit – C/05/10; (b) to award interest @ 18% p.a.; (c) to award compensation of Rs.1,00,000/- per annum for late delivery beyond 31.12.2008; (d) litigation cost of Rs.25,000/- etc.

          The Opposite Party by filing a written version disputed the claim of the complainants.  The OP has stated that at all material time, they were and still ready and willing to perform their obligations under the allotment letter dated 07.10.2006 and the buyer’s agreement dated 02.07.2007.  The OP has stated that they have already completed the construction of the said unit and procured Completion Certificate from the concerned authority and the same has been duly intimated to the complainants by a letter dated 11.04.2016.  The OP has further stated that the delay in delivery of possession is due to delay in obtaining necessary approvals from the statutory authorities which are inter dependent and not because of any deliberate latches and negligence on the part of OP Company.  Therefore, according to OP, the complaint should be dismissed.

          In support of their case, Sri Raj Kumar Agarwal, Complainant No.1 has tendered evidence on affidavit.  However, the reply against the questionnaire set forth by OP was given by Smt. Kiran Agarwal, Complainant No.2.  On the other hand, on behalf of OP, one Sri Sanjib Banerjee, authorised signatory of KWIC has filed evidence on affidavit. The said witness has given reply against the questionnaire set forth by the complainants.  Besides the same, the parties have relied upon some documentary evidence.  At the time of final hearing, both the parties have filed brief notes of arguments.

          Admittedly, on 14.07.2006 the complainants applied to the OP for allotment of a Row House being category 8x15, Plot No. C/05/10 which includes land of 120 sq. mt., built up area of 1910.18 sq. ft. approximately at a total consideration of Rs.34,46,500/- at KWIC Township and along with the said application, the complainants paid a sum of Rs.3,40,000/- as application money.  The OP accepted the said application and in token of such acceptance issued its Provisional Allotment Letter dated 07.10.2006.  Therefore, in accordance with the definition as embodied in Section 2(1)(d)(ii) of the Act, the complainants must be termed as ‘consumer’.  A person who applies for allotment of a building site or for a flat constructed by the Development Authority or enters into an agreement with a building or a contractor is a potential users and nature of transaction is covered in the expression ‘service of any description’.

          The Provisional Allotment letter dated 07.10.2006 goes to suggest that the cost of the Row House was settled at Rs.34,46,500/-.  As per Provisional Letter, the complainants were under obligation to pay an amount of Rs.31,01,850/- payable in 9^th instalment and the balance amount of Rs.3,44,650/- was payable at the time of delivery of possession.  As per agreement, the price of the Row House is in-escalable.  It was stipulated that the OP would complete the said unit in all respect within 30.06.2008 with a grace period of six months may be added i.e. upto 31.12.2008.

          Needless to say, 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”.

          In provisional Allotment Letter and also Clause 5.1 (Article 5) of Buyers’ Agreement, it has been specifically mentioned that unless prevented by circumstances beyond the control of the company and subject to Force Majeure, KWIC shall ensure to complete the said unit in all respect within 30.06.2008 only for the cluster C and further there will be a grace period of six months upto 31.12.2008 and in case possession is not transferred after expiry of the said period, KWIC will be liable to pay prevailing savings bank interest of the State Bank of India for each month of delay on the money given by the allottee as compensation but no compensation will be paid on account of Force Majeure reasons.  In this regard, OP has taken a plea that the delay in delivery of possession is due to delay in obtaining necessary approvals from statutory authorities which are interdependent and not because of any deliberate latches or negligence on the part of the company.  The clause Force Majeure provides in clause no.1.6 of Buyers Agreement dated 02.07.2007. 

      According to the said clause – “Force Majeure” means any event or combination of events or circumstances beyond the control of any party herein which cannot (i) by the exercise of reasonable diligence, or (ii) despite the adoption of reasonable precaution and/or alternative measures be prevented, or caused to be prevented, and which materially and adversely affects a party’s ability to perform obligations under the agreement, which shall include but not limited too;

1. Acts of God i.e. fire, drought, flood, earthquake, epidemics, natural disasters or death or disabilities;
2. Explosions or accidents;
3. Strikes or lock outs;
4. Critical non-availability of cement, steel or other construction materials due to general strikes of manufacturers, suppliers, transporters or other intermediaries;
5. War and hostilities of terrorism, public unrest, riots or civil commotion;
6. The promulgation of or amendment in any law, rule or regulation or the issue of any injunction, court order or direction from any governmental authority that prevents or restricts the development and implementation of the project”.

       The facts and circumstances do not indicate that on any of the ground spell out in clause in 1.6 of Buyer’s Agreement dated 02.07.2007, the OP Company was prevented from handing over the possession of the subject property to the complainants within the stipulated period.

          Evidently, after filing of the complaint, on 29.03.2016 the OP Company could obtain Completion Certificate from KMDA and wrote a letter to the complainants on 11.04.2016 asking them to visit the site for viewing and final inspection of the unit. 

          Therefore, it is palpably clear that the non-delivery of the subject unit within the stipulated period with grace period till 31.12.2008 indicates gross negligence and deficiency in services on the part of OP.  In AIR 1994 SC 787 [Lucknow Development Authority – Vs. – M.K. Gupta] the Hon’ble Supreme Court has held that when possession of the property is not delivered within stipulated period, the delay so caused is denial of service on the part of builder.

            The Complainants have raised question as to enhancement of area of the unit from 1910 sq. ft. to 2030 sq. ft.  The authorised representative of the complainants by filing brief notes of argument has stated that regarding enhancement of area, no notice was given and as such the developer is not entitled the value of enhanced area, if any of the subject unit.  We are unable to accept the same because it is evident that by sending letters, the OP Company asked the complainants to visit the site and make final inspection but the complainants did not adhere to the same.

          On evaluation of materials on record, it transpires that the complainants being ‘consumer’ as defined in Section 2(1)(d) of the Act hired the services of OP on consideration  and OP has failed to fulfil their part of obligations as per Agreement and thereby deficient in rendering services towards the complainants within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.  Therefore, the complainants are entitled to some reliefs.  In our view, direction upon the OP to deliver possession and to execute the Sale Deed  within 60 days will meet the ends of justice.  Despite payment of almost entire consideration amount, when the complainants were deprived from having a roof of their own over their head for long ten years, certainly it caused tremendous mentally agony and harassment for which they are entitled to compensation and considering the  terms of the Agreement, the complainants are entitled to compensation as per prevailing savings bank interest of the State Bank of India and as such we assess the compensation in the form of simple interest @ 4% p.a. from committed date of possession i.e. from 01.01.2009 (inclusive of six months grace period) till the date of issuance of intimation of handing over the unit dated 11.04.2016 after obtaining Completion Certificate.  Under compelling circumstances, the complainants have to approach this Commission and therefore, complainants are entitled to litigation cost which we quantify at Rs.10,000/-.

          With the above discussion, we dispose of the complaint with the following directions –

1. The opposite Party is directed to deliver Possession and to execute the Deed of Conveyance in respect of the unit as per  provisional Allotment Letter dated 07.10.2016 and the Buyers’ Agreement dated 02.07.2007 in favour of complainants within 60 days from date;
2. The Opposite Party is directed to pay compensation in the form of simple interest @ 4% p.a. from the committed date of possession i.e. from 01.01.2009 (inclusive of six months grace period) till 11.04.2016;
3. The Opposite Party is directed to pay Rs.10,000/- as cost of litigation to the complainants,
4. The balance amount payable by the complainants, if any, shall be adjusted by OP out of the compensation payable to them in terms of this order.