26/05/15

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

            These are the two Appeals of identical nature arising out of the judgment passed by the Learned District Forum, Kolkata, Unit-II in case nos.CC 268 of 2012 and CC 267 of 2012 dismissing the complaints.  Both the Appeals were heard analogously. 

            The case of the Complainants/Appellants, in short, is that the Complainants applied for flat in the Housing Project of the OP as per terms and conditions of the brochure and paid the entire consideration amount of the flat and for car parking space.  As per terms and conditions, the OP was to deliver possession before the end of December 2008, but the flat was actually delivered on 20/06/11.  It has been alleged that because of the delay of 30 months in delivery of possession the Complainants as per terms and conditions of the brochure were entitled to get interest on the amount paid by them. 

            It is submitted by the Learned Counsel for the Appellants/Complainants that as per clause 9 of the agreement the Complainants were entitled to get interest @ 4% p.a. in case of delayed delivery of possession. 

          It is submitted by the Respondent that there was delay in delivery of possession, but the delay was sufficiently explained by the OP/Respondent in the letter dated 14/07/10 stating that it was due to the circumstances beyond control of the OP and the OP acted within the scope of the terms and conditions of the brochure. 

            We have heard the submission made by both sides and perused the papers on record.  Admittedly, there was delay in delivery of possession.  As per terms and conditions regarding the delivery of possession it was stipulated that all the flats including common facilities will be completed by the end of 2008 unless there was delay for unforeseen circumstances beyond control of the Board.  Evidently, the OP of the complaint issued letter dated 14/07/10 informing the Complainants that the delay was due to laying of electrical H.T. and L.T. cables and its finalization thereof.  It has further been stated that due to non-availability of electricity and other allied facilities which were pre-conditions of habitation, the delay occurred.  It is, therefore, clear that delay was not intentional and as per the exception to the clause under “Possession” as appearing in the brochure, the Complainants are not entitled to get interest as claimed.  The Learned District Forum was justified in dismissing the complaints. 

            Both the Appeals are dismissed.  This judgment will govern both the Appeals.