Date of filing : 30.12.2012

Date of  hearing : 10.01.2018

       The instant complainant under Section 17  of the Consumer Protection Act, 1986 ( for brevity, “the Act” ) is at the instance of intending purchasers against the developers/builder  on the  allegation of deficiency in services on the part of them in respect of a Row House in sub-block 02/12 with number 1906 on a land area of  152.9 sq.meter at Kolkata West International City ( KWIC ) at  Salap Junction, Howrah – Amta and Bombay Road crossing on National Highway – 6, Howrah- 711403 in a dispute of housing construction.

       Cut short of details,  complainants’ case is that on 28.12.2005 the  complainants had  applied for purchase of a Row House as mentioned above as per  format enclosing therewith a cheque of Rs. 3,50,000/- towards booking an advance amount. The complainants further agreed to pay the balance and entire amount in a single a final instalment in order to avail discounts,  remitted a cheque of Rs.28,33,000/- on 31.05.2016. Pursuant to such payment made by the complainants to OP No.1, a letter dated 08.06.2006 under caption provisional allotment of Bungalow/Twin House/Row House at KWIC Township was issued to the complainants. The complainants on having accepted such offer entered into an agreement with the Opposite Party No.1 termed as ‘Buyers’ Agreement on 02.07.2007. As per terms of the agreement, the OP No.1 was under obligation  to handover the Row House within 31.12.2017 subject to a grace period of  six months i.e. upto  30.06.2008. The complainants have stated that while the basic price of the said unit of the complainants in item A-1 of the statement of account is allegedly shown as Rs.36.17,083/- it transpires from the document dated 08.06.2006 issued by the OPs that the price of Row House was fixed at Rs.33,50,000/- less 5% discount on one shot payment. However, on 08.04.2008, OP No.1 raised a demand of Rs. 500/- on 08.04.2008 and the complainants raised objection to the same and ultimately by another letter dated 11.04.2008 the OP  No.1 has mentioned there was no due towards the unit value i.e. towards the Row House property booked by the complainants. However, on 15.03.2012  the OP No.1 issued a letter upon the complainants and claimed the amount on several heads. The complainants raised objections to the same. Thereafter, series of correspondences have been made between the parties but the OP No.1 was sitting tight and by a letter dated 11.11.2013 addressed to the complainants asked them to make payment towards alleged outstanding dues otherwise the same shall result into cancellation of allotment of the said property with forfeiture of the amount paid by the complainants. Hence, the complainants lodged the complaint with prayer for several  reliefs, viz – (a) a direction upon OP No.1 to execute and register deed of sale in  respect of the property as mentioned in the schedule to the petition of complainant in terms of allotment letter dated 08.06.2006 and Buyers’ agreement dated 02.07.2007 setting aside the notice for cancellation dated 11.11.2013, (b) an order of compensation for an amount of Rs.32,62,116/- for delay in delivery of possession, (c) litigation cost etc.

       The OP No.1 by filing a written version disputed the allegations made by the complainants. The OP No.1 has stated that on 15..03.2012 they issued the letter of handing over possession to the complainant along with statement of accounts, collection from customer invoice, preferential location charges and alteration charges, documentation and facilitation of conveyance invoice and  management and maintenance invoice. The OP No.1 by the said letter informed the complainants that they received Completion Certificate for the said Unit. By the said letter, the OP No.1 also intimated the complaint about the increase of revised area of the unit and also the revised price of the unit. Thereafter, the OP No.1 served several letters upon the complainants  and requested  to pay due amounts but as  the complainants did not pay any heed to the same, the OP No.1 by a letter dated 11.11.2013  issued a notice of prior cancellation of allotment of the said unit unless the outstanding amount is paid within  15 days. The OP No. 1 has categorically stated that as there was no deficiency on the part of them, complaint should be dismissed.

       In support of  the case of  complainants Shri Pankaj Shah, complainant No.1 has tendered evidence on behalf of him and also on behalf of his brother i.e. complainant no.2. He has also given reply against the questionnaire set forth by the OP No.1.

       On the other hand, on behalf of OP No.1 Shri Sanjib Banerjee,  authorised signatory of KWIC has filed evidence on affidavit. However, reply has been filed by Shri Sudip Kumar Pramanik, another authorised signatory of KWIC against the questionnaire put forward by OP No.1.

       Besides the same, both the parties have relied upon several documents including letters and correspondences.

       The complainants applied and submitted their application before OP No.1 ( KWIC) for allotment of a Row House being Plot No. A/02/12 measuring about  1906.30 sq.ft. super built up area in Phase – I at KWIC Township having its office at ‘Vichitra’, Salap Junction, Howrah - Amta  Road and Bombay Road crossing on National Highway – 6, Howrah – 711403 at a price of Rs.33,50,000/-. At the time of submitting the application form for the purpose of booking of the said Row House, complainants paid a sum of Rs. 3,50,000/- by a cheque dated 28.12.2005 and on 05.01.2006  the OP No.1 issued a receipt to the complainants for the booking amount. On 02.05.2006 the OP No.1 issued a provisional allotment letter along with the terms and conditions in favour of the complainants. The complainants  paid an amount of Rs. 28,33,000/- to the OP No.1 on 31.05.2006 and OP No.1 issued a receipt to that effect. It implies that on 31. 05.2006 by way of cheque drawn on UTI Bank Ltd.  the complainants have paid  the entire consideration amount. In fact, in provisional allotment letter dated 08.06.2006  the total cost of the unit was assessed at Rs. 33,50,000/-.  

       As per terms of provisional allotment letter dated 08.06.2008 coupled with buyers’ agreement dated 02.07.2007, the OP No.1 was under obligation to deliver possession  to the complainants by  31.12.2007 subject to a grace period of six months upto 30.06.2008. In this regard, it would pertinent to record the contents of paragraph – 3 of page – 1 of provisional allotment letter dated 08.06.2006 which runs as follows :-

       “ 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  31st December, 2007 only for the Cluster A & B. Further, there will be grace period of 6 months ( upto 30th june, 2008 ) from t he date of completion. In case  the possession is not transferred after expiry of the said grace 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.”

       The OP No.1 has failed to advance any Force  Majeure  circumstances. Therefore, in all fairness the OP No.1 was under obligation to handover the subject Row House in favour of the complainants by  31.07.2008 and even assuming  the grace period it should not have crossed the stipulated period of  30.06.2008.

       Surprisingly enough,  the OP No.1 remains silent and did not take proper step in completion of the building as per agreement. On the contrary, on 08.04.2008 they have made a demand in informing the complainants that an amount of Rs.500/- is due and payable. However, on protest the said demand was corrected by a letter dated 11.04.2008.

       On 15.03.2012, the OP No.1 issued a letter to the complainants informing them about obtaining Completion Certificate for the unit from KMDA and expressed the intention to handover the possession subject to the payment of outstanding amounts and in this regard a bill was raised under different heads. The complainants raised objection against such unethical claim of the OP No.1 and as such ultimately by a letter 11.11.2013 the OP No.1 issued a notice prior cancellation of allotment of the unit with a caution that unless the complainants to clear the outstanding due within 15 days from the date of  receipt of the letter, they shall  have the right to cancel the allotment of the unit.

       Needless to say, the parties are bound by the agreement. 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. 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 :

“..... 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 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” .

       Ld. Advocate for the OP No.1 has referred to Clauses2.2, 3.4 and 5.3 of Buyers’ agreement and submitted that in terms of the said Clauses the company has the right to claim extra amount from a Buyer. In Clause 2.2 it has been specified that in case of increase /decrease in the measurement of the built up area of the unit beyond 1% , the allottee shall be liable to bear the extra cost or shall be liable to pay such amount proportionate to the actual measurement of the unit. The Clauses 3.4 or 5.3 have no such application in facts and circumstances of the present case.

       In a specific question on behalf of the complainants as to whether -  “ What is  the basis of issuing a notice of prior cancellation of the allotment of the unit dated 11.11.2013 in violation of the agreement executed between the complainants and OP No.1” to which it was replied on behalf of OP No.1 –  “By signing the Buyers’ agreement dated 2nd July, 2007, you have accepted Clause  3.2 of the same . Therefore, notice of prior cancellation has been rightfully issued by the Opposite Party.”

       Had the OP No.1 been not negligent or deficient in handing over  the Row House to the complainants within the time frame, this litigation could have been avoided. The claim of the OP No.1 for maintenance charges for the period of 01.05.2012 to 30.04.2014 as shown in the annexure of the statement of account cannot be said to be reasonable because had the construction been done within the stipulated period, the owners of the Units could have form their own association to deal with the maintenance charges.

       On evaluation of materials on record and having heard the Ld. Advocate it appears to me that the complainants being ‘Consumer’ within the meaning of Section 2(1)(d) (ii) of the Act hired the services of OP No.1 /developer on consideration and despite payment of entire consideration amount by 31.05.2006 the complainants  had to lodge a complaint in a Forum constituted under the scheme of the Act for redressal of  their  grievances and  the OP No.1 being a  renowned builder /developer could not fulfil  the lawful claim of the complainants and thereby deficient in  rendering services in accordance with Section 2(1)(g) read with Section 2(1)(o) of the Act.

       For the reasons aforesaid, the complainants are entitled to reliefs. Considering  the facts and circumstances of the case, I dispose of  the complaint with the directions enumerated below:-

       (a) OP No.1 is directed to execute and register the sale deed in respect of the property as mentioned in provisional allotment letter dated 08.06.2006 and Buyers’ agreement dated 02.07.2007 in favour of the complainants within  30 days  after getting the same measured in presence of both sides and if it is found the area of the Row House has been enhanced than the agreed size, the complainants shall pay  the balance amount on pro-rata basis as per extant rate as prevalent  on the date of allotment letter before execution of deed of conveyance.

       (b) The OP No.1 is directed to make payment of compensation of Rs.1,00,000/- in favour of complainants on account of harassment and mental agony;

       (c) The OP No.1 is also directed to pay  the litigation cost of Rs.10,000/- in favour of the complainants;

       (d) The OP No.1 is further directed to pay interest @8% p.a. over the amount of Rs. 33,50,000/- from 01.07.2008 till  the date of obtaining Completion Certificate.

       All the above amounts must be paid  within 30 days from date otherwise  the same will carry interest @8% p.a. from date till its  realisation.

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