PER: HON’BLE MR. SAMARESH PRESAD CHOWDHURY, PRESIDING MEMBER

            The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a son and father/intending purchasers against the Developer/Builder Company on the allegation of deficiency in services on the part of developer/builder in respect of a flat and car parking space in a dispute of housing construction.

          Succinctly put, the Complainants’ case is that on 13.02.2008 they had entered into an Agreement for Sale with the Opposite Party/Builder to purchase of a flat measuring about 1574 sq. ft. being Apartment No.0602 on the 6^th floor, Tower -08, Block-08 and a car parking space in the basement of the said Tower in the complex ‘Harmony’ in Uniworld City, New Town, P.S.- New Town, Action Area-III, Kolkata-700156 at a total consideration of Rs.54,62,632/- under payment plan.  In pursuance of the said Sale Agreement, the complainants have paid a total sum of Rs.40,42,115/- on diverse dates through A/C payee cheques out of the total consideration amount of Rs.54,62,632/-.  As per terms of the Agreement, the OP was under obligation to handover the subject flat within 31^st March, 2011 subject to Force Majeure circumstances.  The complainants have alleged that all their attempts and persuasions to get the flat in favour of them on payment of balance consideration amount went in vain.  Hence, the complainants approached this Commission with prayer for several reliefs, viz. – to direct the OP to deliver possession of the residential flat and the car parking space and to execute and register the Sale Deed upon receipt of balance consideration amount alternatively to refund the entire amount paid by them in advance together with interest @ 18% p.a., to pay compensation of Rs.30,00,000/- etc.

      The Opposite Party/development company by filing a written version has stated that as per terms and conditions the company was under obligation to give possession of the apartment to the complainants within 31.03.2011.  However, the delay in construction is attributed to delays in obtaining statutory infrastructural provisions pertaining to road, electricity, water, sewerage, sanctions etc. beyond control of them but the construction of Uniworld City is steadily progressing.  The OP has stated that as per terms of the agreement, they are ready to pay compensation to the purchaser @ 5% per sq. ft. per month for the period of delay in offering the delivery of the flat and the same will be adjusted at the time of issuance of final notice of possession to the complainants.

       During hearing of the case, both the parties have tendered evidence through affidavit.  However, the opposite party has not given any reply against the questionnaire set forth by the complainants.  Both the parties have also relied upon some documents including the Agreement for Sale dated 13.02.2008.  Both the parties have also filed brief notes of arguments at the time of final hearing in respect of their respective cases.

         On the threshold of discussion, it would be pertinent to record that the value of the subject flat including the car parking space agreed upon by the parties was settled at Rs.55,62,632/-.  The complainants have claimed compensation of Rs.30,00,000/- and therefore, in accordance with Section 17(1) of the Act, the claim of the complainants come within the pecuniary limit of this Commission as per provision of Section 17(1) of the Act and the decision of Larger Bench of Hon’ble National Commission reported in I (2017) CPJ 1 [Ambrish Kr. Shukla & 21 Ors. – Vs- Ferrous Infrastructure Pvt. Ltd.].  The Office of OP /builder is well within the geographical limit of this Commission in accordance with Section 17(2) of the Act. Further, the subject matter of the dispute relating to ‘housing construction’ and when the complainants have alleged deficiency in services in accordance with the definition of Section 2(1)(o), this Commission has alone the jurisdiction to adjudicate the complaint.

        The overwhelming evidence on record makes it abundantly clear that the complainants being applicants signed an application form on 08.02.2008 in order to purchase of a residential apartment measuring about 1574 sq. ft. being Apartment No.0602 on the 6^th floor, Tower -08, Block-08 and a car parking space in the basement of the said Tower in the complex ‘Harmony’ in Uniworld City, New Town, P.S.- New Town, Action Area-III, Kolkata-700156 on payment of application money.  Accordingly, on the self-same date, an allotment letter was issued by OP Company alongwith which contains payment schedule to the complainants intimating the complainants about the allotment of the subject flat.  Subsequently, on 13.02.2008 a Buyer’s Agreement was executed between the opposite party as developer and the complainants as purchasers in respect of the said apartment.  On 08.04.2008 the OP issued a letter to LIC Housing Finance Ltd. and giving permission to mortgage against the said apartment.

        It is not in dispute that the complainants had paid a total sum of Rs.40,42,115/- in account payee cheques on diverse dates in favour of OP Company towards the total consideration of Rs.55,62,632/-.  It also remains undisputed that the OP Company was under obligation to handover the apartment to the complainants within 31.03.2011 subject to Force Majeure circumstances and payment of dues in respect of the apartment.

         In the written version, the opposite party took the plea of Force Majeure circumstances by stating that the construction of ‘Harmony’ in Uniworld City has been delayed for obtaining statutory infrastructural provisions pertaining to road, electricity, water, sewerage, sanction etc. beyond the control of them. 

          It is trite law that the parties are bound by the terms of agreement. When either of the parties did not pick up any quarrel with the terms and conditions of the agreement, they are certainly bound to follow the terms and conditions contained in the agreement. In a case reported in AIR 1996 SC 2508 (Bharti Knitting Co. – 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 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”

         For appreciation of the present dispute, let us see the relevant terms and conditions of the agreement. Clause 5.a of the agreement pertains to possession which rewrites below-

       “(i). That the developer shall make its best endeavours to deliver the possession of the apartment to the purchaser by 31^st march, 2011, subject, however, to ‘Force Majeure circumstances and after all dues in respect of the apartment including stamp duty and registration charges as applicable have been paid.  It is, however, understood between the parties that various blocks/towers comprised in the complex shall be ready and completed in phases and after completion, the apartments shall be handed over to the purchaser in the respective block/Tower”. 

        The Force Majeure circumstances has been mentioned in Clause 9.a of the Agreement which provides that if the completion of apartment is delayed for reasons of Force Majeure which inter alia include delay on account of non-availability of steel, cement or any other building materials or water supply or electricity power back-up or slow down, strike or due to dispute with the construction agency employed by the developer, civil commotion or war or criminal action or earth quake or any act of God, delay in certain decisions/clearance from the statutory bodies or any notice, order, rule or notification of the Government or any public or any competent authority or any change in the policy of government/statutory bodies or for any other reason which are beyond the control of the developer.  But it reveals that no such occurrence has happened.  The delay in handing over the possession of the apartment could have been justified if there was to be a new legislation, regulation or order suspending, stopping or delaying the construction of the complex and the apartments.  

         The fact remains that the O.P./Developer has failed to advance any evidence as to reasons for delay in handing over the apartment to the complainant as per clause 5.a of the terms of agreement. The O.P Company has raised some Force Majeure circumstances but none of them appeared to be acceptable. The delay in handing over the possession of the apartment could be justified if there was to be new legislation, regulation or order suspending, stopping of delaying the construction of the complex and the apartments.  Therefore, the Force Majeure circumstances are totally inapplicable in the facts and circumstances of the present case.

        Evidently, in their written version, the OP Company has stated that the status of construction of Tower-08 is as follows – (a) slab casting for all floors are completed and (b) brick work is completed till 16^th floor.  However, the OP Company did not give reply against the questionnaire set forth by the complainants showing their readiness and willingness to handover the possession of the subject flat.  The OP Company was under obligation to handover the apartment within 31.03.2011.  The delay has already been committed for long eight years from committed date of delivery of possession.  The dilly-delaying process of the OP Company clearly indicates that there is hardly any chance for the complainants to get the apartment in near future.

       Mr. Prantick Ghosh, Ld. Advocate for the Complainants submits that his clients are still ready to get the flat in favour of them on payment of balance consideration amount subject to payment of compensation for delay in delivery of possession as per Clause 5.c(ii) of the Agreement and in the event OP fails to fulfil their promise,  they are liable to refund the entire amount paid by the complainant along with compensation in accordance with Clause 5.e of the Agreement.

       Clause 5.c(ii) appears to be relevant which is set out below –

      “(ii)  Compensation for delay in possession:

         That subject to the payment of all dues by the Allottee(s), and save and stipulated herein, the Company would pay compensation charges @ Rs.5/- per sq. ft. per month for the period of delay in offering the delivery of the said apartment beyond the period indicated in above Clause 5.a(i).  These charges would be adjusted at the time of Final Notice of Possession whereby the Allottee(s) is advised to clear the outstanding dues.  The Company will not be under any other liability to pay damages or any other compensation to the Allottee(s)”.

        Clause 5.e of the Agreement is dealt with alternative property/compensation which is set out below –

       “That if for any reason the developer is not in a position to offer the apartment herein applied for apartment, the Developer shall offer the Purchaser an alternative property or refund the amount in full with simple interest @ 10% per annum without any further liability to pay any damages or compensation”. 

        Mr. P.R. Bakshi, Ld. Advocate for the OP, on the other hand has contended that the complainants have failed to pay the amount as per schedule of payment and as such being defaulter in payment as per agreement, cannot claim compensation.  To fortify his submission, Ld. Advocate for the OP has placed reliance to three decisions of the Hon’ble National Commission reported in – (1) III (2012) CPJ 149 [Gulab – Vs. – Force Motors Ltd. & Anr.]; (2) III (2015) CPJ 121 [Agra Development Authority – Vs. – Sardar Bhagat Singh] and (3) III (2015) CPJ 192 [Manas Developers – Vs. – Madhur Arjun Bhabal & Anr.]. 

        We have considered the rival contention of the parties.  The evidence on record suggests that the complainants were very much regular in payment for having shelter and as such they had paid a total sum of Rs.40,42,115/-.  Therefore, it cannot be said that the complainants were defaulter.  The referred decisions, therefore, have no manner of application in the facts and circumstances of the present case. 

        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 on consideration  and OP has failed to fulfil their part of obligations as per agreement for Sale dated 13.02.2008 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 Opposite Party to deliver possession and to execute the Sale Deed after obtaining Completion Certificate from the competent authority within three months and to pay compensation of Rs.5/- per sq. ft. per month as per clause 5. C (ii) from the committed date till delivery of possession alternatively to refund Rs.40,42,115/- along with simple interest @ 10% p.a. as per Clause 5.e of the Agreement will meet the ends of justice.  Under compelling circumstances, the complainants have to knock the door of 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 is directed to deliver possession and execute the Sale Deed within three (3) months from date in favour of the complainants after obtaining Completion Certificate from the competent authority and to pay compensation @ Rs.5/- per month per sq. ft. from the committed date i.e. from 01.04.2011 till the date of delivery of possession subject to payment of balance consideration amount;
2. Alternatively, the Opposite Party is directed to refund the amount of Rs.40,42,115/- along with compensation in the form of simple interest thereon @ 10% p.a. from 01.04.2011 till the date of delivery of possession;
3. The Opposite Party is directed to pay Rs.10,000/- to the complainants as costs of litigation;
4. The balance amount payable by the complainants shall be adjusted by Opposite Party out of the compensation payable to them in terms of this order.  The balance compensation, if any, shall be paid at the time of offering possession of the flat to the complainants, in terms of this order.