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

            The instant complaint under Section 17 (inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of two brothers/intending purchasers against the developer/builder and its Marketing Manager (Opposite Party Nos. 1 & 2) and the Assistant General Manager of the Bank, who provided housing loan to the complainants (Opposite Party No.3) on the allegation of deficiency in services primarily on the part of OP No.1/developer in a consumer dispute of housing construction.

          Succinctly put, Complainants’ case in brief is that on 08.01.2014 they entered into an agreement with the OP No.1 to purchase of a residential flat measuring about 1361 sq. ft. super built up area being Flat No.D on the 6^th floor of Tower/Block-5 and one ground open vehicle parking space in a complex named ‘Genexx Exotica’ lying and situated at GT Road (West), Kumarpur, P.S.- Asansol (South), Dist- Paschim Burdwan within the local limits of Ward No.1 of the Asansol Municipal Corporation at a total consideration of Rs.31,40,949/- including price of the flat of Rs.27,90,050/-, vehicle space – Rs. 1,75,000/-, Club Membership Rs.75,000/- and sales and service tax of Rs.1,00,899/-.  The complainants have paid Rs.1,03,090/- as application money and also paid Rs.22,52,617/- on 30.04.2014 paid by OP No.3 through RTGS and also Rs.5,61,000/- by way of a cheque dated 28.04.2014 thereby paid a total consideration of Rs.29,17,667/- as part consideration amount towards the said total consideration amount.  As per terms of the Agreement, the OP No.1 was under obligation to handover the subject property in habitable condition within April, 2014.  The complainants have alleged that the construction of the building has not been completed and they have realised surplus amount of Rs.5,61,960/- behind the back.  Hence, the complaint with prayer for following reliefs, viz. – (a) a direction upon OP Nos. 1 & 2 to handover the possession of the flat and to arrange for registration of the same; (b) to pay compensation of Rs.5,00,000/- for harassment and mental agony; (c) litigation cost of Rs.50,000/- and (d) a direction upon to OP Nos. 1 & 2 to pay interest @ 10% p.a. over the amount of Rs.5,61,960/- etc.

          The Opposite Party No.1 by filing a written version has stated that the complainants have defaulted in payment of the amount for which after termination of the agreement, they have transferred the said flat to some third party.

          The Opposite Party No.3 by filing a separate written version has stated that as there was no privity of contract in between them and the complainants, the complaint should be dismissed against them.

          The complainants and the OP No.1/developer have tendered evidence through affidavit.  They have also given reply against the questionnaire set forth by their adversaries.  Besides their statements, the parties have relied upon some relevant documents including Agreement for Sale dated 08.01.2014 etc.  Both the parties have also filed brief notes of arguments in support of their own cases.

          The overwhelming evidence on record make it abundantly clear that on 25.10.2013 the complainants booked a flat measuring about 1361 sq. ft. super built up area being Flat No. ‘D’ on the 6^th floor of Tower/Block-5 and one ground open vehicle parking space in a complex named ‘Genexx Exotica’ lying and situated at GT Road (West), Kumarpur, P.S.- Asansol (South), Dist- Paschim Burdwan within the local limits of Ward No.1 of the Asansol Municipal Corporation on payment of Rs.1,03,090/-.  Subsequently, on 08.01.2014 an Agreement for Sale was executed by and between the parties and it was agreed that the price of the flat will be Rs.27,90,050/-, the vehicle parking space Rs.1,75,000/-, Club membership of Rs.75,000/- and sales and services taxes of Rs.1,00,899/- aggregating  a total sum of Rs.31,40,949/-. 

          The fact remains that the complainants had applied for loan from State Bank of India and OP No.3 duly accorded such a loan in favour of the complainants.  The OP No.1 has received a cheque of Rs.22,52,617/- from SBI, Chinakuri Branch on 30.04.2014.  The OP No.1 has also received a sum of Rs.5,61,960/- on 29.04.2014.  Therefore, it becomes quite clear that out of total consideration of Rs.31,40,949/-, the complainants have already paid Rs.29,17,667/- and an amount of Rs. 2,23,282/- is still due and payable by the complainants.

          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”.

        From the terms of agreement and also evidence led by Sri Amit Kr. Bhowmick, the Sr. Manager of OP No.1 Company it transpiring admitted that the company was under obligation to deliver possession of the flat within April, 2014.  There is no evidence whatsoever that within the time schedule the OP No.1 Company has completed the construction.  The OP No.1 has failed to show any Completion Certificate showing the completion of construction of the project.  The OP No.1 took a plea that as the complainants have failed to fulfil their obligations, they have unilaterally terminated the agreement and transferred the subject flat to a third party.

        Surprisingly enough, OP No.1 has failed to show any copy of Deed showing transfer of the property to a third party.  In his reply, the Sr. Manager of OP No.1 Company has stated that since it is a sensitive information, he will not disclose the name of the buyer.  The evidence given by the Sr. Manager of OP No.1 Company could not inspire confidence.  Moreover, a bilateral agreement cannot be cancelled unilaterally without giving a prior notice to the same.  In all fairness, OP No.1 should have given a letter to the complainants asking them to make payment of balance amount within the committed date of delivery of possession but OP No.1 has failed to show any single scrap of paper that they have ever asked the complainants to take delivery of possession on payment of balance consideration amount.  This act on the part of OP No.1 clearly indicates arrogance, highhandedness and apparent deficiency in rendering services.

          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 No.1 on consideration  and OP No.1has 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, a direction upon the OP No.1to deliver possession and to execute the Sale Deed on receipt of balance consideration amount of Rs.2,23,282/- within 60 days from date alternatively to refund the amount of Rs.29,17,667/- along with compensation in the form of interest thereon  @ 10% p.a. from the date of each payments till its realisation will meet the ends of justice.  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 No.1is directed to deliver Possession and to execute the Deed of Conveyance in respect of the property as mentioned in the 2^nd schedule (Part –I and Part-II) as per Agreement dated 08.01.2014 in favour of complainants in complete habitable condition within 60 days from date on receipt of balance consideration amount of Rs.2,23,282/- alternatively, the Opposite Party No.1 shall refund of Rs.29,17,667/- along with compensation in the form of simple interest @ 10% p.a. in favour of the complainants from the date of each payments till its full realisation;
2. The Opposite Party No.1 is directed to pay Rs.10,000/- as cost of litigation to the complainants,