Date of Filing – 17.01.2013
Date of Final Hearing – 07.08.2017
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 intending purchasers against the developer 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 or about 21.06.2006 they applied to the Opposite Party for allotment of a Row House category 8x15, Plot No. A/10/04 which includes 120 sq. mt. built up area of 1840.64 sq. ft. approximately at a total consideration of Rs.33,22,500/- at KWIC Township and along with the said application, they paid a sum of Rs.3,32,300/- as application money. The OP accepted the said application and in token of such acceptance issued its Provisional Allotment Letter dated 16.08.2006. It was agreed that the OP would complete the said unit in all respect within 30.04.2008 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.29,76,015/-. On 02.07.2007 the parties signed and executed a buyer’s agreement. After the execution of the said buyers agreement, the complainants sought certain additions and alternations in the construction plan/technical specification for which the OP demanded an extra payment of Rs.1,10,000/-. Such addition and alternations resulted in an increase in total built up area of the unit from 1840.64 sq. ft. to 1980 sq. ft. approximately. The complainants alleged that time to time they have made requests to the OP to deliver the unit but after payment of 9th instalment on 29.09.2008, the OP has caused delay and could not keep their promise. Only by a letter dated 15.03.2012 the OP has been claiming that the unit was ready for hand over on that date. In the said letter, it has been mentioned that the final coat of painting is under progress and the unit will be ready within seven days. Accordingly, the complainants’ representative visited the spot and found several deficiencies. The complainants submit that the OP was deficient in handing over the Row House within the time frame and violates the terms of the agreement. They have also stated that the OP has no authority to charge amount of Rs.2,49,000/- by a letter dated 15.03.2012 which is wholly erroneous. Therefore, 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 – A/10/04; (b) calculate compensation at 12% p.a. from the date of respective payments till the date of handing over possession; (c) to refund Rs.15,58,787/- with interest @ 18% p.a. on and after 01.01.2013 till the date of actual payment thereof; (d) declare and hold that the complainants are not liable for payment of service tax imposed on 01.10.2010; (e) compensation of Rs.10 lakhs for causing harassment and mental agony; (f) Rs. 25,000/- as litigation cost 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 16.08.2006 and the buyers agreement dated 02.07.2007. The OP has stated that the subject project was comprised of diverse clausters and out of the same, the OP has already completed cluster A & B and a substantial portion of the project is also on the verge of completion and is likely to be handed over to the respective purchasers very shortly. The OP has also stated that the area of the said Row House was revised from 1840.64 sq. ft. to 1980 sq. ft and similarly the price of unit increase from Rs.33,22,500/- to Rs.35.35,708/-. 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 being baseless should be dismissed.
In support of their case, Smt. Kiran Kamal Agarwal, Complainant No.1 has tendered evidence on affidavit. She has also given reply against the questionnaire set forth by the OP. On the other hand, on behalf of OP, one Sri Anirban Chatterjee, authorised signatory of KWIC has filed evidence on affidavit. However, one Sri Sanjib Banerjee, another authorised signatory of OP Company has given reply against the questionnaire set forth by the complainants. Besides the same, the parties have relied upon some documentary evidence.
Undisputedly, on 21.06.2006 the complainants applied to the OP for allotment of a Row House being category 8x15, Plot No. A/10/04 which includes 12 sq. mt. built up area of 1840.64 sq. ft. approximately at a total consideration of Rs.33,22,500/- at KWIC Township and along with the said application, they paid a sum of Rs.3,32,300/- as application money. The OP accepted the said application and in token of such acceptance issued its Provisional Allotment Letter dated 16.08.2006. Therefore, in accordance with the definition as embodied in Section 2(1)(d)(ii) of the Act the complainants must be categorised 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 16.08.2016 goes to suggest that the cost of the Row House was settled at Rs.33,22,500/-. As per Provisional Letter, the complainants were under obligation to pay an amount of Rs.3,32,250/- by third instalment to ninth instalment and the balance amount of 10% i.e. Rs.3,32,250/- will be paid at the time of delivery of possession. As per agreement, the price of the Row House inescalable. It was stipulated that the OP would complete the said unit in all respect within 30.04.2008 and in this regard a grace period of six months may be added i.e. upto 31.10.2008.
The fact remains that the OP Company could not keep their promise to provide the subject property by 31.10.2008, far less to speak of on 30.04.2008. In this regard, the 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;
- Act of God i.e. fire, drought, flood, earthquake, epidemics, natural disasters or death or disabilities;
- Explosions or accidents;
- Strikes or lock outs;
- Critical non-availability of cement, steel or other construction materials due to general strikes of manufacturers, suppliers, transporters or other intermediaries;
- War and hostilities of terrorism, public unrest, riots or civil commotion;
- 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 within the stipulated period.
It is not in dispute that on 21.10.2011 only the OP Company could obtain Completion Certificate for 100 nos. of dwelling units for cluster one including the Row House of the complainants. Accordingly, the OP Company wrote a letter to the complainants on 15.03.2012 asking them to get ready to take possession of the flat on payment of balance amount of Rs.2,49,564/-. What I find from the record that on the requests of the complainants some additions and alternations were made and the area of the Row House was increased and to that effect a sum of Rs.1,10,000/- has been rightly claimed. However, I do not understand how the basic price of units has been assessed at Rs.35,35,708/-. In the agreement, it was stipulated that the price of the flat will not be escalated. However, when on the demand of complainants, the addition and alternations have been made, certainly, the OP Company is entitled claim Rs.1,10,000/- on that account. In the statement of account dated 15.03.2012 I find that the OP Company has assessed basic price of the unit at Rs.35,35,708/-, service tax on basic sale price at Rs.14,413/-, alternative plan charges at Rs.1,10,000/-, documentation charges of Rs.43,397/- and the claim has been made altogether a sum of Rs.2,49,564/-. On scrutiny of the statement, I find that the OP Company at best is entitled basic price of the unit at Rs.33,22,500/- + Rs.1,10,000/- = Rs.34,32,500/-. In all fairness, the complainants should pay the balance amount after treating the rate of Row House at Rs.34,32,500/-. Since the parties are bound by the terms of the agreement, the complainants must pay the balance consideration amount. It is true that the OP Company could not deliver the possession of the subject property in due time and as such they were deficient in rendering services but at the same time when the subject flat was ready for delivery of possession on 15.03.2012, the complainants had no reason to file the complaint with a prayer for delivery of possession.
In respect of awarding compensation, it would be worthwhile to reproduce the provision of Section 14(1)(d) of the Act which runs as follows –
“14. Finding of the District Forum. – (1) if, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complaint against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely :
...........
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party”.
The sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the negligence of the opposite party. Once the said conditions are satisfied, the Consumer Forum would have to decide the quantum of compensation to which the consumer is entitled. There cannot be any dispute that the computation of compensation has to be fair, reasonable and commensurate to the loss or injury. There is a duty cast on the Consumer Forum to take into account all relevant factors for arriving at the compensation to be paid.
Therefore, the assessment of compensation depends upon the facts and circumstances of the particular case. In the instant case, despite commitment to handover the Row House by 31.10.2008, the OP Company could not keep their promise for more than three years till it was get ready on 15.03.2012 and in such a situation considering the loss suffered by the complainants, I think a compensation of Rs.3,00,000/- in the facts and circumstances would meet the ends of justice. The situation compelled the complainants to lodge the complaint and as such they are entitled to litigation cost which I quantify at Rs.10,000/-
Consequently, the petition of complaint is allowed on contest. The OP is directed to handover the Row House being Unit –A/10/04 in KWIC to the complainants and also to execute the Sale Deed in favour of the complainants after receipt of balance consideration amount within 30 days from date but the complainants cannot claim Rs.35,35,708/- as basic price of unit and in this regard the complainants shall have to pay Rs.33,22,500/- + Rs.1,10,000/- = Rs.34,32,500/-. The OP is further directed to pay compensation of Rs.3,00,000/- and Rs.10,000/- as litigation cost aggregating Rs.3,10,000/- within 60 days from date otherwise the amount shall carry interest @ 9% p.a. from the date till its realisation.
The Registrar of the Commission is directed to send a copy of this order to the parties at once free of cost for information and compliance.
