Hon’ble Mrs. Dipa Sen (Maity), Presiding Member
The instant complaint petition has made by the complainant, Mr. Jaswant Singh and Teja Singh against the developer alleging deficiency in service in relation to housing construction.
The brief facts of the case is that the complainant being an intending purchaser of a residential flat made an application on 16.06.2010 before the OP for booking one self contained flat apartment no. 2 measuring about 1274 sq. ft. super built up area on the 11th floor Tower No. 02 at an upcoming project ‘Kolkata West height’ consisting of two bed rooms+ study along with one covered car parking space against total consideration price of the flat fixed as Rs. 24,31,650/- along with preferential location charge (PLC) Rs. 49880/-, floor rise charges (FRC) Rs. 69,832/- and covered car parking charges of Rs. 1,75,000/- i.e. the total apartment price (TAP) including cost of covered car parking of Rs. 27,26,362/- at the time of booking the complainants have paid Rs. 1 lakh through a cheque no. 673694 dt. 07.05.2010 drawn on ICICI bank, Alipure branch through Business Banking Current Account of ‘Trailer Cargo Movers’ signed by complainant no. 1 as application fees. After that the OP issued one provisional allotment letter dt. 22.07.2010 in the name of the complainants. Subsequently, the OP vide letter dt. 04.10.2010 intimated the complainants about modification of the terms of provisional allotment and informed that the super built up area of the apartment has been revised from 1247 sq. ft. to 1388 sq. ft. and accordingly TAP of the apartment has been revised as basic apartment price @ Rs. 1950/- per sq. ft. i.e. the revised total basic apartment price enhanced to Rs. 27,06,600/- and the preferential location charges (PLC) became Rs. 55,520/- floor rise charges (FRC) became Rs. 77,728/-, parking charges Rs. 1,75,000/- i.e. total Rs. 30,14,448/-. Complainants raised his objection against sudden enhancement of the apartment price and demanded clarification regarding such enhancement. Subsequently, instead of starting the construction work of the said project Kolkata West height the OP continuously demanded the amount from the complainants. Altogether, the complainants paid an amount of Rs. 9,27,917/- on different dates as instalments as per the terms and condition. The OP promised to complete the construction work of the said project within the period of 31.12.2014 with an extended period of 6 months. But in spite of that the OP did not start the construction work and illegally withholding his hard-earned money of the complainants. The complainants have suffered a lot as the present market value of the apartment has enhanced a lot and without getting any other way the complainants approached before this Commission with a prayer (1) to deliver the possession of the flat in question immediately i.d. to refund of amount of Rs. 9,27,917/- along with interest @ 18 % p.a. (2) to award compensation to the tune of Rs. 40,000/- for his mental agony, harassment and financial loss; (3) along with litigation cost of Rs. 50,000/-.
By filing W.V, OP has denied and disputed all allegations made against them. They have further stated that the complainants submitted an application form on or about 16th June, 2010 to the OP for allotment of a two bed room residential flat being no. 02 measuring about 1247 sq. ft. on 11th floor in tower- 2 along with one open car parking space. At that time the total consideration amount of the said flat was decided as Rs. 27,26,362/-. The terms and condition mentioned in the said application form where unequivocally accepted by the complainants without any objection. The OP has issued one provisional allotment letter on 22nd July, 2010 in favour of the complainant and allotted the said apartment in the name of the complainants. That the OP vide letter dt. 4th October, 2010 intimated the complainants for modifications of the terms of the provisional allotment letter and thereby the consideration amount has been enhanced to Rs. 30,14,848/-. Subsequently the OP vide letter dt. 11th February, 2011 informed that they have applied for the construction of the towers consequent and the construction of this tower will come as soon as they receive necessary approvals of the statutory authority but the complainants through a letter 22nd February 2011 refused to make any further payment till receiving a copy of approved building plans and other statutory clearances. On 1st February, 2012 OP send a demand letters to the complainant and thereby requested for making payment of amount of Rs. 6,55,281/-. Subsequently, the o.p. vide letter dt. 23.08.2011 informed that they will commence work as soon as they receive the ‘consent to establish’ from the Pollution Control Board. They further informed that ‘Kolkata West Height’ would henceforth be known as ‘Lavanya’. Through a letter dt. 17July, 2012 the OP has sent to the complainants copy of the buyer’s agreement. The OP further submits that for the purpose of the said project the OP has to obtain necessary permission from the diverse statutory authorities. The present OP has applied before KMDA for building sanctioned plan and 9th February, 2010 which are still awaiting and the sanction of the same is beyond control of the present OP. The OP is still acting with due diligence. They have no deficiency in service. The said complaints is not enable in law and is liable to be dismissed.
In support of their respective cases the parties have tendered evidences on affidavit. They have also given reply against the questionnaire set forth by their adversaries. The parties have also relied upon some documents including the allotment letter and general terms and condition dt. 16.06.2010. We have given our thoughtful consideration to the various pleas raised by the Ld. Counsels for the parties.
Having heard both parties and on careful perusal of the materials on record it becomes clear to us that on 16.06.2010 the complainant made an application to the OP/developer for allotment of a flat measuring about 1247 sq. ft. super built up area on the 11th floor Tower no. 02 at ‘Kolkata West Height’ / township along with one covered car parking space at a total consideration of Rs. 27,26,362/-. Undisputedly, complainant have deposited Rs. 1,00,000/- at the time of application. On 22.07.2010 the OP issued one provisional allotment letter in the name of the complainant. Undisputedly, the complainants have paid an amount of Rs. 9,27,917/- on different dates as part consideration amount for the said apartment. The OP vide letter dt. 04.10.2010 intimated about the modification of the terms of provisional allotment and informed that the super built up area of the apartment has been modified from 1247 sq. ft. to 1388 sq. ft. and accordingly the total consideration amount was enhanced from 27,26,362/- to 30,14,848/-.
During argument the Ld. Advocate for the OP has argued that the complainants are not members of a particular family and are proprietor of ‘Trailer Cargo Movers’ and the said unit has been booked not for residential purpose but for the business purpose.
Needless to say, 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 (Bharti Knitting Company –vs- DHL Worldwide Express Couries Division of Airfreight Ltd. the Hon’ble Supreme Court has observed that when there is a specific terms in the contract, the parties are bound by the term in the contract.
Accordingly, in this present case, the parties are bound by the (general terms and condition) stated in the allotment agreement dt. 16.06.2010. As per the allotment agreement the OP agreed to complete and was under obligation to complete the construction work of the project within the period of 31.12.2014 with extended period of six months but the OP failed to obtain necessary permission of sanction and would not start the construction work of the relevant Tower.
In view of the above circumstances, the fact of the case indicated that the OP has committed an unfair trade practice by accepting the consideration amount from the complainants without obtaining sanctions as required under law. The Hon’ble Supreme Court reported in II (2000) CPJ 1 (Ghazidabad Development Authority –vs- Union of India) the Hon’ble National Commission in a decision reported in 3 CPJ 7 [Kamal Sood –vs- DLF Universal Ltd.) has observed that it isunfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions it is the duty of the builder to obtain the requisite permissions or sanction, in the first instance and thereafter recover the consideration money from the purchaser. Therefore, the Act of the developer not only depicts deficiency in service but also falls under unfair trade practice as defined u/s 2 (1) (r) of C.P. Act.
In a decision reported in 2022 (1) CPR 23 NC (Kamal Malhotra –vs- Parsvnath Developer’s Ltd.) that in a case Hon’ble National Commission has already decided that the complainant cannot be made to wait indefinitely for possession of the flat, as the construction is not completed and the complainant is entitled for refund of the principal amont with reasonable interest, which is quantified @ 9% p.a. from the date of payment till actual date of refund.
Hon’ble Apex Court has already decided in a case in Pioneer Urban Land & Infrastructure Ltd. vs- Govindan Raghavan II (20() CPJ 34 (SC) that complainant cannot be made bound to the terms of the agreement if they are fully one sided and unfair and unreasonable.
Another contention of the Ld. Counsel for the OP is that these complainants are friends and not consumer as defined u/s 2(1)d of the C.P Act as the subject flat was booked for business purpose as the complainants are proprietor of ‘Trailer Cargo Movers’.
In a case reported in 1 (2016) CPJ 31 in Kavita Ahuja vs Shipra Estates the Hon’ble National Commission has already opined that onus of establishing that the complainant was dealing in real estate i.e. in the purchase and sale of plots/flats in his normal course of business to earn profits, shifts to the OP, and in this instant case complainants are friends but that cannot be considers as an obstruction for their ‘consumer’ status. Furthermore, payment can made from different resources/banks/ accounts etc. But that cannot prove that complainants have booked the subject flat for commercial purpose unless there is a definite proof. Moreover, it is clear even from perusal of 1st page of the application form of provisional allotment provided by the OP that those applications form was only for residential apartments. Furthermore, it became clear to us that complainants being friends intended to purchase one residential flat to stay jointly have booked the subject flat and such transaction cannot be considered as commercial transaction.
Having heard both parties and on evaluation of materials on record it transpires that the complainants being ‘consumer’ as defined u/s 2 (1)(d) of the C.P. Act, 1986 as they have hired services from the o.p. after payment of part consideration amount. But the OP has failed to fulfil their part of obligations as per terms and conditions and thereby deficient in rendering services towards the complainants within the meaning of section 2 (1)(g) and 2 (1)(o) of the C.P. Act 1986.
With the above discussion and on relying upon the Apex Court observation in Kolkata West International City Pvt. Ltd. –vs- Devasish Rudra, 11 (2019) CPJ 29 SC we are of the view that the complainants are entitled to get some relief.
Hence, the CC/375/2016 is hereby allowed with the following directions:
(i) The OP is directed to refund Rs. 9,27,917/- in favour of the complainants within 60 days.
(ii) The OP is further directed to pay compensation in the form of simple interest @ 9% p.a. from the date of each payment till its realisation.
(iii) The OP is further directed to pay 25,000/- as cost of litigation to the complainants.
