FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The instant complaint under Section 12 of the Consumer Protection Act, 1986 (for brevity, ’the Act’) is at the instance of the intending purchasers against a Private Limited Company and its Managing Director on the allegation of deficiency of services in a dispute of housing construction.
In a capsulated form, complainant’s case is that on going through various advertisements of OP-1/Lord Reality Pvt. Ltd., the complainants intend to purchase one unit of land measuring about 04 cottahs in Zone 09 at Lordcity Sonarpur, South 24 Pgs and also paid Rs. 1,40,000/- vide cheqe dated 30.01.2013 as advance and the OP-1 granted money receipt. OP-1 issued allotment letter dated 07.02.2013 in respect of Unit No. B-21 in Zone -09 measuring about 2880 sq.ft. at Lordcity project, Sonarpur. Complainants further paid an amount of Rs. 5,25,000/- to the OP-1 on different dates through cheques. The OPs assured that construction shall commence soon but the OPs failed to do so. A draft agreement for sale was given to the complainants but the OPs did not execute and register the said sale agreement despite repeated requests. In the draft agreement, it was stipulated that the OP-1 company will deliver the subject unit and bungalow within 42 months from the date of commencement. The complainants have alleged that after expiry of stipulated period they again requested the OPs to execute and register the sale deed and hand over the subject bungalow including land but all the request and persuasions went in vain. OPs despite of notice of the complaint failed to refund Rs. 6,65,000/-. Finding no other alternative, the complainants have filed the instant consumer complaint before this Forum seeking redress and relief incorporated in the prayer of the complaint.
OPs despite notice of the complaint failed to file WV within the limitation period u/s 13 (2) of the CP Act, 1986. No request for condonation of delay or extension of time to file WV was made. Therefore, right of the OPs to file WV was closed
In support of their case, complainant No.1, Taneea Mitra has tendered her evidence through affidavit.
On perusal of consumer complaint, evidence led by the complainant No. 1 coupled with documents annexed therewith, it would reveal that the complainants intend to purchase land measuring about 04 cottahs in Zone -09 at Lordcity Sonarpur and the total value of land with bungalow was Rs.6,65,000/-. On perusal of the money receipts, it appears to us that the OPs received total consideration amount from the complainants and issued allotment letter.
It is trite law that the parties are bound by the agreement. A person who sign 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 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 singed 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 clams decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract.”
Therefore, it is quite evident that as per draft copy of the agreement for sale the OP-1 company and its Managing Director under obligation to hand over possession of the subject land including bungalow to the complainants within 42 months from the date of commencement of construction.
It is well settled that after making payment of entire consideration amount, a purchaser cannot wait indefinitely for having a roof over his head. In that perspective, when the OPs have failed to handover or delivery of possession of bungalow and land within the time frame and did not keep promise as per terms of the agreement, this itself amounts to deficiency in services.
On evaluation of materials on record, it is quite evident that the complainants being “consumers” hired the services of the OPs in a disputed bungalow construction and the OPs have failed to keep their promise in handing over the possession of bungalow and land as per commitment in favour of the complainants within the stipulated period and thereby deficient in rendering services within the meaning of Section 2 (1) (g) read with section 2 (1) (o) of the Act.
We do not find any reason why the OP-1 company has received the amount of Rs. 6,65,000/- from the complainant and utilised the said money for its own gain. In the premises, complainants are entitled to get reliefs.
In our view, when there is hardly any chance to complete the construction in near future, an order directing the OPs to refund the amount of Rs. 6,65,000/- along with the compensation in the form of simple interest at the rate of 7 percent P.A. from the date of each payment till its realization will meet the ends of justice. Under compelling circumstances, the complainants have come up in this Forum for which they are entitled to litigation costs which we quantify at Rs. 10,000/-.
In view of the above, consumer complaint is disposed of ex parte with the following directions:-
- The OPs are directed to refund the amount of Rs. 6,56,000/- along with compensation in the form of simple interest at the rate of 7 percent P.A.in favour of the complainants from the date of each payment till its realization.
- The OPs are also directed to make payment of a sum of Rs. 10,000/- as costs of litigation in favour of complainants.
- The above payments should be paid within 60 days from the date in terms of the above order, failing which the complainants shall be at liberty to execute the order by filing execution application under the provisions of CP Act against the OPs.
Order be communicated to the complainants as per Rules.
