SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The instant complaint u/s 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 allegations of deficiency of services and unfair trade practice in a dispute of housing construction.
In a capsulated form, complainants’ case; is that on going through various advertisement of OP-1/Lord Reality Pvt. Ltd., complainants have paid Rs. 1,50,000/- vide cheque dated 26.12.2014 as advance for booing of Unit No. D-90 in Zone-09 measuring an area of 04 cottahs of land at Lord City, Sonarpur under P.S. Sonarpur, within District of South 24 Pgs and the value of said land is Rs. 3,00,000/- per cottah. OP-1 issued allotment letter dated 09.01.2015 in favour of the complainants. OPs vide letter dated 09.01.2015 intimated the complainants that the commencement of project and model bungalow shall be available as and when completed. Thus, the complainants have also further paid Rs. 4,30,000/- to the OP-1 on different dates in respect of subject unit and land. OPs vide letter dated 12.11.2015 communicated the complainants about the extension of commencement of construction and it will be completed within 12 months i.e. by November, 2016 but the OPs failed to complete the construction of Bugalow and development of the land. OP-2 being the chairman Cum Managing Director of OP-1 executed an agreement for sale dated 13.05.2016 in favour of the complainants. Complainants also further paid Rs. 2,80,000/- to the OP-1 against money receipts. Even, Deed of Conveyance is not executed by the OPs. It was stipulated in the Agreement for Sale that the OP-1 company will deliver the subject unit with bungalow within 42 months from the date of commencement of construction of Bungalow. Complainants had paid full consideration amount but the OPs did not start construction work on Unit No. D-90 in Zone-09 at Lord City, Sonarpur.
Finding no other alternative, the Complainants have issued legal notice dated 01.04.2019 to the OPs demanding to refund the amount paid by them but the OPs did not heed such request. The complainants have suffered mental agony and harassment due to non-refund of entire consideration money. Hence, the complainants have filed the instant consumer complaint before this Commission seeking redress and reliefs as incorporated in the prayer of the complaint. Therefore, right of the OPs to file WV is closed vide order dated 03.11.2021.
In support of their case, Both the complainants named Mr. Kumit Kumar Sharma and Mrs. Mamta Sharma have tendered their evidence supported by affidavit.
On perusal of consumer complaint, evidence adduced by the complainants coupled with documents annexed therewith, it would reveal that complainants have paid Rs. 11,50,000/- to the OP-1 as full and final consideration amount for booking of Unit No. D-90 in Zone-09 measuring about 04 cottahs of land at Lord City, Sonarpur within the District of South 24 Pgs. against money receipts. Thus, it goes to show that the complainants have already paid Rs. 11,40,000/-b to the OP-1 for the subject bungalow and land. The OPs failed and neglected to construct the project within the stipulated period of 42 months. Despite legal notice dated 01.04.2019, the OPs did not refund the consideration amount to the complainants.
It is trite law that the parties are bound by the agreement. A person who signs 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.-
In terms of letter dated 12.11.2015 the OP-1 requested the Complainant No. 1 for extension of 12 months for commencement of construction of Bungalow and development of Plot. As per agreement for sale the OPs under obligation to hand over possession of the subject bungalow including land to the complainants with 42 months from the date of commencement of construction.
It is well settled that after making payment of entire consideration amount, purchasers cannot wait indefinitely for having a roof over their 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 Agreement for Sale, 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 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 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. 11,50,000/- along with compensation in the form of simple interest at the rate of of 6 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 commission for which they are entitled to litigation costs which we quantify at Rs. 5,000/-.
In view of the above, the complaint is disposed off with the following directions:-
- The OPs are directed to refund the amount of Rs. 11,50,000/- along with compensation in the form of simple interest at the rate of of 6 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. 5,000/- 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 against the OPs.
Copy of the judgment be provided to the parties as mandated by the Consumer Protection Act. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
