PER:HON’BLE MR. SAMSRESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of an intending purchaser against the Developer/Builder company(Opposite Party No.2) and its Director (Opposite Party No.1) on the allegation of deficiency in services, primarily on the part of developer in a consumer dispute of housing construction.

          Succinctly put, complainant’s case is that on 24.03.2015 she entered into an agreement with the developer to purchase of a self-contained flat measuring about 1377 sq. ft. super built up area being Apartment No.D9-09-03 on the 9^th floor in Tower No.D9 lying and situated at Holding No.B1-90/A/1, New Budge Budge Trunk Road, P.S.- Maheshtala, Kolkata – 700041, Dist- South 24 Parganas within the local limits of Ward No.31 of Maheshtala Municipality at a total consideration of Rs.45,35,260/-.  As per terms of the Agreement, complainant has already paid Rs.35,35,257/- as part consideration amount towards the said total consideration amount.  As per terms of the agreement, the developer was under obligation to complete the flat in all respect and to deliver possession by 1^st quarter, 2015-16.  The complainant has alleged that after expiry of the stipulated period, she pursued the developer to handover the possession orally and also by several letters but it turned a deaf ear.  On or about April, 2016, the OP/developer offered an alternate accommodation in Tower D-11 instead of D-9, the complainant having no alternative agreed to accept such offer though the said alternate tower is quite far from the main entrance to the complainant.  Ultimately, on 28.12.2016 the complainant wrote a letter to the developer requesting them to cancel such booking and refund the amount already paid by her but OP/developer did not response.  On 28.02.2017 the complainant issued a legal notice to OP/developer requesting them either to give possession or to refund the amount with appropriate interest.  Upon receiving the said legal notice, by a letter dated 07.03.2017 OP once again offered alternative accommodation which is far away from the booked unit and the main entrance of the project for which it was not acceptable for the complainant to accept the alternative accommodation.  The complainant has alleged that even after lapse of one year of 1^st quarter of 2015-16, the residential flat is not ready for possession and the construction of the tower is yet to be completed.  Hence, the complainant approached this Commission with prayer for several reliefs, viz. – (a) to direct the OP to refund the sum of Rs.35,35,257/- along with appropriate interest; (b) to pay compensation of Rs.10,00,000/- for harassment and mental agony; (c) litigation cost of Rs.1,00,000/-.

          The Opposite Parties by filing a written version disputed the allegations made by the complainant stating that the construction work had been delayed due to some technical problems and unavoidable circumstances and the construction work of the tower is still in progress and about to finish, as such opposite parties will be able to handover possession of the said flat in tower D-9 by November, 2017 to the complainant. The opposite parties have also stated that on many occasions the officials and representatives of the company had given a proposal to the complainant to convert her booking to a ready flat in Tower D-11 at the same price but the complainant refused to accept the same.

          Both the parties have tendered evidence through affidavit. The complainant has given reply against the questionnaire set forth by O.Ps. However, as the complainant did not set forth any questionnaire, the OPs had no occasion to file reply. Both the parties have relied upon some documents including the allotment letter and the general terms and conditions(GTC) dated 24.03.2015. At the time of final hearing brief notes of argument has been filed by the OPs.

          It remains undisputed that the Eden Real Estate Ltd.( OP No.2) issued an advertisement for selling of flats and apartments at Maheshtala, Dist- South 24 Parganas. The complainant being allured with such advertisement agreed to purchase one flat/apartment and booked a flat measuring about 1377 sq.ft. super built up area corresponding to built up area of 1047 sq.ft. being apartment no. D9-09-03 at 9^th  floor of Tower D9 along with one semi cover car parking space in the project “EDEN CITY MAHESHTALA” located at Holding No.B1-90/A/1, New Budge Budge Trunk Road, P.S.- Maheshtala, Kolkata – 700141, Dist- South 24 Parganas within the local limits of Ward No.31 of Maheshtala Municipality at a consideration of Rs.45,35,260/-.  It is not in dispute that the complainant has already paid Rs.35,35,257/- as part consideration amount towards the said total consideration amount. As per terms of the agreement, the OP No.2 was under obligation to complete the subject flat and to handover the possession within 1^st quarter, 2015-16 say within March, 2016.

          Admittedly, the developer has failed to fulfil their promise in handing over the apartment to the complainant within the time frame. The OP/developer has failed to advance any force majeure circumstances regarding non-delivery of possession within the time frame as mentioned in Clause 9 of GTC.  In the written version, the OP took a plea that the construction had been delayed due to some technical problems and unavoidable circumstances but the developer has not mentioned the problems or the circumstances which prevented them in constructing the project within the time frame.  Therefore, the contents of Paragraph-14 of written version where the OPs attempted to take a plea of force majeure circumstances appears to be just a mere plea to absolve the responsibility in an irresponsible manner.  It is true that the OP offered an apartment in Tower D-11 in place of D-9 but the said flat is situated at a long distance from the main entrance for which the complainant being an octogenarian did not agree to the proposal.

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

       Now, Clause 9 of the GTC clearly provides that the Company shall make its endeavour to deliver possession of the apartment to the allottees within estimated 36(thirty-six) months from the date of commencement of construction of each tower.  Whereas the delivery of possession shall be made within 45 days from the date of allotment for the already constructed towers, the delivery for the remaining 3BHK ‘under-construction’ towers would be made in a phased manner during calendar year 2015, commencing in the 1^st quarter of 2015-16 + a grace period of three months. 

     Evidently, the complainant has failed to fulfil their obligation as per terms of the agreement and as such they are liable to pay compensation in accordance with Section 14(1) of the Act as there was deficiency in services on the part of developer to handover the subject flat within the time frame and further failed to advance any force majeure circumstances.  In such a situation, an octogenarian couple cannot wait for an indefinite period for having a shelter over their head and in that perspective, the claim of the complainant for refund of amount appears to be a genuine claim.

      Now, the whole dispute centres around the amount of compensation to be awarded in the present case. In the Agreement, it was stipulated that in the event of failure on the part of purchaser to deposit the amount within time, the due date will attract interest @18% p.a. for the period of delay and in case where the OP/developer will fail to deliver the flat within the schedule period, on claim, the money would be refunded with 0.1% of the amount paid by the buyer towards apartment price per month.

         It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges interest @ 18% per annum in the event of delay on the part of buyer in making payment  to them but seeks to pay 0.1% of the amount paid by the buyer towards apartment price per month, in case they does not honour their part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the agreement also encourages the builder to divert the funds collected by them for one project to another project being undertaken by them. They will be able to finance in a new project at the cost of the buyers of the existing project and that too at a very low cost of finance.  If the builder is to take loan from banks or financial institutions, it will have to pay the interest which the banks and financial institutions charges on terms loan or cash credit facilities etc. The interest being charged by the banks and financial institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation.

        If the builder is made to pay only the paltry compensation stipulated in the GTC, this may result in a situation where completion of the flats is unjustifiably delayed by the builder for an indefinite time since they know that compensation they will have to pay to the flat buyer, on account of the delay in offering possession to him/her would only be a fraction of the cost of the borrowing in the market. Such a view may also encourage the builder to divert funds collected from the flat buyers in one project to the other projects promoted them or even for their own purposes.  

         Therefore, keeping in view the provisions of Section 3(1) of the Interest Act and the prevalent bank interest and further the avowed object behind the legislation of the Act, in our view, the complainant is entitled to compensation in the form of simple interest @ 10% p.a. from the date of each payment till its realisation.

          During final hearing, Ld. Advocate for the OP/developer places before the Bench a copy of granting Occupancy Certificate issued by the Chairman, Maheshtala Municipality on 28.11.2017 which indicates that in view of provisions of Rule 34 (2) of W.B. Municipal Building Rules, Occupancy Certificate has been issued for block-D9 of the complex.  As per terms of the agreement, the developer should have handed over the possession within March, 2016.  Evidently, at the time of lodging complaint, the OP/developer could not obtain the Occupancy Certificate.  In that perspective, when the complainant claimed refund of amount by a legal notice dated 28.02.2017, the OP should have adhered to the said request without giving a reply on 07.03.2013 with a promise to handover the possession on or before September, 2017.  Even the OP/developer could not keep their words on the basis of that letter too.

           Therefore, on evaluation of materials on record, it transpires that the complainant being ‘consumer’ as defined in Section 2(1)(d) of the Act hired the services of Opposite Parties on consideration  and OP No.2 being developer has failed to fulfil their part of obligations as per GTC and thereby deficient in rendering services towards the complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.  So, the complainant is entitled to some reliefs.  In our view, a direction upon the OPs to refund the amount of Rs.35,35,257/- along with compensation in the form of simple interest @10% p.a. to a senior citizen from the date of each payment till its realisation will meet the ends of justice.  As the situation compelled the complainant to lodge complaint, she is entitled to litigation cost which we quantify at Rs.20,000/-.

          With the above discussion, we dispose of the complaint with the following directions –

1. The Opposite Party Nos. 1 & 2 are jointly and severally directed to refund Rs.35,35,257/- along with compensation in the form of simple interest @ 10% p.a. in favour of complainant from the date of each payment till its realisation;
2. The Opposite Party Nos. 1 & 2 are jointly and severally directed to pay Rs.20,000/- as cost of litigation to the complainant.
3. The above payment must be paid within sixty(60) days from date.