FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

            The instant complaint u/s 12 of the Consumer Protection Act, 1986 (hereinafter refer to as ‘the Act’) is at the behest of the purchasers against the owners of the land, a Construction Firm and its proprietor on the allegation of deficiency of services.

            In a capsulated form, complainants’ case is that their father, since deceased was a tenant of a flat measuring about 298 sq. ft. on the ground floor of the Premises No. 36B, Hem chandra Street, Khidderpur, Kolkata-700023. On the demise of their father, complainants were in occupation of the said flat against payment of rent. OPs 1 to 7 being owners of a piece and parcel of land measuring about 02 cottahs 14 chittaks 25 sq. ft. more or less together with a dilapidated building being KMC  Premises No. 36B, Hem chandra Street, Kolkata-700023 had entered into a Development Agreement dated 25.06.2008 with OP-9 being the proprietor of OP-8 M/s Tara Construction for construction of a two/three storied building on the said premises as per building plan to be sanctioned by the Kolkata Municipal Corporation. As per Development Agreement, the OP-9 agreed to handover 40 % of the total build up area on the proposed building. OPs 1 to 7 also executed a registered Power of Attorney dated 21.01.2010 in favour of OP-9 to do, execute and perform any acts, matter or thing whatsoever which in the opinion of their said Attorney ought to be done, executed and performed in relation to the aforesaid land and building affairs ancillary or incidental thereto. The OPs also executed an Agreement for Sale dated 20.07.2012 with the complainants to sell a residential flat measuring about 274 sq. ft. carpet area on the 2^nd floor of Premises No. 36B, Hem chandra Street, Kolkata-700023 at a total consideration of Rs. 2,74,000/- payable to the OPs 1 to 7/owners with an option that the tenants/complainants shall give full vacant possession of their tenanted portion within 30 days from the date of execution of the Agreement for Sale. The complainants have stated that in terms of the Agreement for Sale, they have paid Rs. 1,000/- as consideration amount and on actual measurement of the floor area of the subject flat the actual price of the flat shall be taken into consideration. The OPs have not giving possession of the subject flat. OPs also violated the terms & conditions of the Agreement for Sale dated 20.07.2012. Complainants alleged that the acts, activities and conduct of the OPs constitute a clear case of deficiency of service and unfair trade practice. Hence, the complainants approached this Forum by way of consumer complaint seeking reliefs as per prayer.

            The OPs by filing WV have stated that the construction of the building has almost been completed. The complainants did not pay consideration amount of Rs. 2,74,000/- in terms of the Agreement for Sale dated 20.07.2012 though the OPs are ready to execute the instrument subject to payment of consideration value of the flat. Therefore, the complaint should be dismissed with costs.

            On behalf of the complainants, complainant No. 5 Radha Raman Datta has tendered evidence through affidavit. The OPs did not put any question against the evidence of the complainants. Even the OPs did not tender evidence through affidavit despite opportunity given to them. Besides the same, complainants have relied upon several documents. At the time of final hearing, complainants have also filed their BNA in support of their case. The OPs did not participate in the final hearing.

            The overwhelming evidence on record make it abundantly clear that the complainants had entered into an agreement with the OPs on 20.07.2012 to purchase of a residential unit on the 2^nd floor of the proposed building at a total consideration of Rs. 2,74,000/-.

It remains undisputed that on the date of execution of the Agreement for Sale dated 20.07.2012, complainants initially paid Rs. 1,000/- to the OP-1 vide cheque No. 940864 drawn on Andhra Bank, Kidderpore Branch, Kolkata. Third schedule of the Agreement for Sale dated 20.07.2012 executed between the parties’ runs as follows:-

            “Consideration for undivided land attributable to the said flat on the 2^nd Floor having 274 sq. ft. carpet area be a little more or less along with cost of construction as described in the 2^nd schedule herein above written is Rs. 2,74,000/- only payable in the manner following:-

1. Initial payment Rs. 1,000/- by cheque No. 940864 dated 20.07.2012 of Andhra Bank, Kidderpore Branch, Kolkata-700023 in the name of Sunil Kumar Adhikary (for landlords).
2. Balance Payment i.e. Rs. 2,73,000/- at the time of registration.

Total amount (Rs. 2,74,000/-) only”

Ld. Advocate for the complainants has submitted that as per the terms & conditions of the Agreement for Sale, the Developer shall complete the subject flat and also handover possession of the same within 12 months from the date of shifting from the existing tenanted portion. Ld. Advocate for the complainants has further submitted that the relation between the tenant and landlords/owners shall be ceased and the owners/vendors shall be bound to execute Deed of Conveyance in respect of the subject flat fully described in the 2^nd schedule in favour of the complainants on receipt of full consideration amount.

It should also not be out of place to mention here that the OPs in their WV admitted the fact of execution of Agreement for Sale with the complainants. WV also make it clear that the measurement of the flat is 274 sq. ft. and its consideration amount is Rs. 2,74,000/-. OPs alleged in their WV that the complainants did not show any iota of interest to make payment of the consideration amount of the flat though the construction work of the building is almost ready, OPs are ready to execute the instrument against payment of consideration value of the flat and the complainants are reluctant to make payment of the consideration amount. OPs failed to produce any scrap of a paper to establish that they approach the complainants to make payment of consideration amount of the flat.

          It is undisputed proposition of law that the parties are bound by the terms of 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” .

Therefore, as per 3^rd schedule of the Agreement for Sale balance payment of Rs. 2,73,000/- will be given at the time of registration of Deed of Conveyance. Thus, the complainants have no obligation to pay the balance consideration amount prior to registration of the flat.

Keeping in view of facts and circumstances of the case coupled with the observation of the Hon’ble Supreme Court in the case of Bharati Knitting company Pvt. Ltd. (Supra), We have no hesitation to hold that when there was specific terms in the agreement that the OPs will handover the possession of the flat within 12 months from the date of shifting from the existing tenanted portion and the complainants are liable to pay balance consideration  amount at the time of registration. OPs failed to do so, certainly it amounts to deficiency in services within the meaning of Section 2 (1) (g)  read with section 2 (1) (o) of the Act. Therefore, when the OPs with open eyes executed the Agreement for Sale with an undertaking to handover the possession within 12 months and receive the consideration amount at the time  of registration of the Deed of Conveyance, certainly the complainants are entitled to get reliefs as prayed for.

With the above discussion, complaint is allowed on merit with the following directions:-

1. The OPs are jointly and severally directed to complete the unfinished work of the subject flat, if any measuring about 274 sq. ft. carpet area (little more or less) on the 2^nd floor of Premises No. 36B, Hem chandra Street, P.S.-Watgunge, Kolkata-700023  and make it in habitable condition.

2. The OPs 8 & 9 are directed to execute and register Deed of Conveyance of the flat fully mentioned in the 2^nd schedule of the consumer complaint. Complainants are directed to pay the balance consideration amount of Rs. 2,73,000/- to the OPs 1 to 7 in equal share and also bear the registration cost and stamp duty.

3. The OPs 1 to 7 are directed to pay Rs. 5,000/- each (total Rs. 35,000/-) as compensation  to the complainants for their mental agony,  pain and harassment.

4. The OPs 1 to 7 are jointly and severally directed to pay Rs. 5,000/- to the complainants as cost of litigation.

Time of compliance is 60 days from the date of order failing which complainants may enforce the order U/s 25 & 27 of the CP Act, 1986 against the OPs and also execute and register Deed of Conveyance of the subject flat through the machinery of the Forum.

Order be communicated to the parities as per rules.