Date of filing : - 05.08.2015

Date of hearing : - 01.02.2018

          The instant complaint Under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a couple / intending purchaser against the Developer / Builder (O.P. No. 1) and Landowners (O.P. Nos. 2 to 8) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.

          In a nutshell, complainants’ case is that on 20.02.2012 they entered into an agreement with the O.Ps to purchase of a residential flat measuring about 1062 sq. ft. super built up area on the 3^rd Floor together with one Car parking space in a G + 3 storied building at Premises No. 174 / 1, Basanta Lal Saha Road, P.S – Behala (Now Haridevpur), Kolkata – 700 053, Dist – South 24 Parganas within the locale limits of Ward No. 116 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs. 32,00,000/-. The Complainants have stated that they have already paid Rs. 28,00,000/- as part consideration amount towards the said total consideration amount. In the agreement it was stipulated that the O.Ps will complete the subject flat for human habitation and shall also provide requisite completion certificate from the KMC within 12 months from the date of agreement. it was further agreed that in the event the developer failed to hand over possession of the said flat within August, 2012 the Developer shall pay a penalty @ Rs. 5,000/-  per month until hand over the possession of the said flat to the Complainants. The Complainants have alleged that in the 1^st week of July, 2015 the O.P.  No. 1 / Developer demanded enhanced price to Rs. 47,79,000/- @ 4,500/- sq. ft. in place of agreed consideration of Rs. 32,00,000/-. The Complainants alleged that all their requests and persuasions including legal notice dated 16.07.2015 turned in deaf ear. Hence, the Complainants have filed this complaint with prayer for several reliefs, viz. – (a) direction upon the O.Ps to refund Rs. 28,00,000/- along with interest thereon @ 12% p.a. (b) a direction upon the O.Ps to pay Rs. 5,000/- per month with effect from August, 2012 till July 2015, (c) Rs. 1,00,000/- as compensation for harassment and mental agony; (d) litigation costs etc.

          The O.P. No. 1 / Developer by filing a Written Version has stated that when the Complainants claimed refund of amount without paying the entire consideration amount, the Complainants shall be excluded from the purview of Section 2(1) (d) of the Act. The O.P. No. 1 has also stated that he has completed flooring and other works are in progress but the Complainants have not yet paid the amount of instalments on completion of flooring and as such the complaint should be dismissed.

          The O.P. Nos. 2 to 8 / Landowners did not contest.

          In support of their case Sri Pulak Kumar Bera, Complainant No. 1 has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by O.P. No. 1.

          The O.P. No. 1, however, did not adduce any evidence.

          At the time of final hearing on behalf of O.P. No. 1 / Developer, Brief Notes of Argument has been filed.

          At the outset, it would be pertinent to record that the subject property is lying and situated within the district South 24 Parganas of the state and the value of the subject property i.e. the flat and car parking space was Rs. 32,00,000/- and the Complainants claimed compensation of Rs. 1,00,000/- totalling Rs. 33,00,000/- and the dispute relates to housing construction. Therefore, the complaint does not suffer pecuniary, territorial jurisdiction or jurisdiction as to the subject matter of dispute.

          On perusal of pleadings and the evidence on record it has come to surface that O.P. Nos. 2 to 8 are the landowners in respect of a piece of a land measuring about 6 cottahs lying and situated at Premises No. 174 / 1, Basanta Lal Saha Road, P.S – Behala (Now P.S.- Haridevpur), Kolkata – 700 053, Dist – South 24 Parganas within the local limits of Ward No. 116 of Kolkata Municipal Corporation (KMC). On 18.05.2007 the O.P. Nos. 2 to 8 had entered into a Development Agreement with O.P. No. 1 for raising construction of a G + 3 storied building over the said property. O.P. Nos. 2 to 8 had also executed 4 General Power of Attorney in favour of O.P. No. 1 authorising him to raise construction. On 11.09.2009 a sanctioned building plan has been obtained from the KMC to that effect.

          It also remains undisputed that on 20.02.2012 the Complainants had entered into an agreement for sale with the O.Ps to purchase of a flat measuring about 1062 sq. ft. super built up area on the 3^rd Floor together with one Car parking space in a G + 3 storied building at Premises No. 174 / 1, Basanta Lal Saha Road, P.S – Behala (Now Haridevpur), Kolkata – 700 053, Dist – South 24 Parganas within the locale limits of Ward No. 116 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs. 32,00,000/-. Undisputedly, the Complainants have paid Rs. 28,00,000/- out of the said consideration amount of Rs. 32,00,000/-.

          In the agreement, it was stipulated that the Developer will hand over the subject flat in habitable condition and will also provide Completion Certificate from the KMC within 12 months from the date of agreement. Needless to say, O.P. No. 1 has failed to fulfil their part of obligations in handing over the subject property in favour of the Complainants. The Complainant No. 1 being an employee of Oil and Natural Gas Commission (ONGC) has obtained loan from the office to purchase the flat for having a shelter over their head at Kolkata but due to unethical conduct of the developer the dream of the complainants has been shattered.

In third schedule of the Agreement for Sale the mode of payment has been narrated as follows: -

          The above payment schedule agreed between the parties simply indicates that the Complainants have paid the amount upto the stage of completion of plaster. The O.P. No. 1 did not write any letter informing the Complainants that plaster has been completed or that any amount is require for completion of the building. Even after receipt of Legal Notice dated 16.07.2015 the O.P. No. 1 remained silent and did not answer anything contrary to the said notice. This simply signifies deficiency in services on the part of O.P. No. 1.

      Needless to say, the parties are bound by the terms of the agreement.  Both the parties have signed the agreement with open eyes evaluating its pros and cons and therefore, nothing can be added or detracted from the terms and conditions of the contract.  Therefore, the agreement between the parties towers above the rest.  In AIR 1996 SC 2508 (Bharti Knitting Co. – Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.) the Hon’ble Supreme Court has observed thus –

          “In an appropriate case where there is acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court establish 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”. 

          Therefore, when O.P. No. 1 could not keep their promise in handing over the possession of the flat within August, 2012, as per clause 7 (f) of the agreement the O.P. No. 1 is under obligation to pay Rs. 5,000/- per month as penalty from 01.09.2012 till the date of notice i.e. 15.07.2015 when by a notice dated 16.07.2015 the Complainants claimed refund of the amount paid by them.

          Ld. Advocate for the O.P. No. 1 has placed a decision of Hon’ble supreme Court reported in (2016) 8 SCC 429 (Bunga Daniel Babu Vs Sri Vasudeva Constructions and Ors) and tried to impress that the Complainants cannot be construed to be purchasers of goods or services. Perhaps, the Ld. Advocate for the O.P. No. 1 could not appreciate the ratio of said decision. The complainants as ‘consumer’ as defined in Section 2(1) (d) (ii) of the Act hired the services of the O.Ps on consideration but the O.Ps, particularly O.P. No. 1 being developer despite receipt of bulk consideration amount has failed to fulfil their promise and thereby, deficient in rendering services under Section 2 (1) (g) read with Section 2 (1) (o) of the Act.

          For the reasons afore said, the Complainants are entitled to some relief. Considering the facts and circumstances of the case, I think Complainants are entitled to refund of Rs. 28,00,000/- and interest thereon from the date of payments till its realisation. Considering the materials on record I think an interest of 10% over the amount will meet the ends of justice. In terms of the agreement arrived by and between the parties, the Complainants are entitled to Rs. 5,000/- per month as penalty from 01.09.2012 till 15.07.2015. Under compelling circumstances, complainants have to lodge the complaint and therefore, they are also entitled to litigation costs which I quantify at Rs. 10,000/-.

          In view of the discussion above, the complaint is allowed on contest against O.P. No. 1 and dismissed against O.P. Nos. 2 to 8 with the following directions : -

1. The O.P. No. 1 shall refund the amount of Rs. 28,00,000/- to the Complainants within 30 days from today along with compensation of simple interest @ 10% p.a. from the date of each payment till the realisation of the amount.
2. The O.P. No. 1 is directed to pay penalty @ Rs. 5,000/- per month from 01.09.2012 till 15.07.2015 as per agreement within 30 days from today otherwise the amount shall carry interest @ 9% p.a. from date till its realisation.
3. The O.P. No. 1 shall pay a sum of Rs. 10,000/- as cost of litigation to the Complainants.

The Registrar of the Commission is directed to send a copy of the order to the Complainants and O.P. No,. 1 for information and compliance.