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. complainants had entered into an Agreement for Sale dated 15.01.2013 with the OP-1 and the OP-1 allotted Unit No. A-72 within Zone-9, comprised in Dag No. 80, J.L. No. 108 within Sangur Mouza under P.S. Sonarpur, South 24 Pgs measuring an area of 2 (two) cottahs of land more or less at a total consideration of Rs. 2,85,000/-. The complainants have stated that the OP-1 agreed to construct a bungalow on the said plot of land. In terms of the Agreement for Sale dated 15.01.2013 complainants have paid Rs. 2,85,000/- to the OP-1. In the agreement, it was stipulated that the OP-1 company will deliver the subject unit and bungalow within 48 months from the date of commencement of construction. The complainants have alleged that after expiry of stipulated period they again requested the OPs to handover possession of the subject bungalow including land but all the requests and persuasions went in vain. Finding no other alternative, the complainants have filed the instant consumer complaint before this Forum seeking redress and reliefs as incorporated in the prayer of the complaint.
OPs despite of 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 for filing WV was made. Therefore, right of the OPs to file WV was closed.
In support of their case, complainant No.2, Mr. Dipankar Dasgupta has tendered evidence through affidavit.
On perusal of consumer complaint, evidence led by the complainant No. 2 coupled with documents annexed therewith, it would reveal that on 15.01.2013 the complainants had entered into an Agreement for Sale with the OP-1 company to purchase 2 (two) cottahs of land more or less situated at Sangur Mouza within Sonarpur P.S., South 24 Pgs at a total consideration of Rs.2,85,000/-. On Perusal of the money receipts, it goes to show that complainants have already paid Rs. 2,85,000/- to OP-1 as consideration money.
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 terms of the agreement for sale dated 15.01.2013 the OP-1 company and its Managing Director under obligation to hand over possession of the subject bungalow including land to the complainant with 48 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. In the premises, complainants are entitled to some 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. 2,85,000/- 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, the consumer complaint is disposed of with the following directions:-
- The OPs are directed to refund the amount of Rs. 2,85,000/- 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 application under sections 25 & 27 of the CP Act, 1986 against the OPs.
Order be communicated to the complainants as per Rules.
