ISHAN CHANDRA DAS, HON’BLE PRESIDENT
This appeal has been directed against the judgment and order dated 26th September, 2013 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata Unit -II, in CC/266/2012 where Ld. Forum concerned dismissed the complaint case on contest but without costs.
Being aggrieved by and dissatisfied with the said judgment and order of dismissal ,the present appeal has been preferred where the Complainants claimed that they applied for one Flat of the respondent /W.B Housing Board, as per terms and conditions prescribed in the Brochure, paid the entire consideration for the Flat and parking space to the tune of Rs. 7,58,000/- and 75,000/- respectively. As per agreement, the respondent /Housing Board, assured the Complainants / Appellants to hand over the Flat and the car parking space at the end of 2008 and on such assurance being made, the entire consideration was paid to the Housing Board/ Respondent herein but actually on 19.07.2011 i.e., after a lapse of 30 months, the delivery of possession of the said Flat and Car parking space were made . The Respondent by its letter dated 09.07.10 admitted that they were unable to handover the Flats within time and the Complainants claimed interest from the Housing Board for such delay but they were refused, resulting deficiency of service as per valid contract between parties. The Appellants prayed for interest @ 4% p.a. as per terms prescribed in the Brochure on and from 01.12.2009 till the date of delivery of possession i.e., 19.07.2011.
The Housing Board in its written version contended that by their letter dated 09.07.2010, they intimated the Appellants about the delay in completing the project. The Respondent also claimed that due to certain unavoidable circumstances like escalation of price from the beginning of 2008 and delay by the Electric Supply Co. Ltd., in laying down the HP and LT cable etc. the Respondent could not deliver possession in due time. Denying its liability to pay interest as claimed by the Appellant, the Respondent further claimed that the Flat owners including the Appellants enjoyed the good amount of compensation in the form of much lower purchase rate.
Upon consideration of the facts and materials on record Ld. Forum concerned dismissed the complaint case, being CC/266/12. Now the point left for decision before us is- whether Ld. Forum concerned was justified in dismissing the complaint case.
Ld. Counsel appearing for the Appellant in course of argument drew our attention to the terms of agreement between the parties with regard to delivery of possession of the Flats including common facilities as referred to in page 15 of the annexure A and pointed out that the Appellant would be entitled to get interest in terms of such agreement but Ld. Trial Forum did not consider this aspect while deciding the claim case and disposed of the same on certain grounds which are neither tenable in law, nor at all relevant to the facts and circumstances of the case. In this context he drew our attention to the relevant portion of the agreement between the parties which is quoted below for appreciation of the same - “All flats including common facilities will be completed by the end of 2008 unless for unforeseen circumstances beyond the control of the Board. The Board will compensate the allottees by payment of interest prevailing in savings bank a/c in State Bank of India for such inordinate delay for the period from January 2009 up to the date of giving possession of CAF. The Board will also refund amount with said rate of interest in case these projects are abandoned”.
He also submitted that the Appellants concerned were not interested about the extraneous reasons as referred to the in the body of the impugned judgment which led Ld. Trial Forum to dismiss their claim on the strength of mere surmise and conjecture without taking into account the terms of agreement between the parties . In this context , he relied on some decisions of the Hon’ble National Commission passed in FA/1153 and 1154 of 2013 dt 13 Feb, 2017, where Hon’ble National Commission while dealing with the identical issues rejected the Housing Board’s plea of unavoidable circumstances leading to delay in delivery of possession and allowed these appeals. In this context we may quote below the observation of the Hon’ble National Commission in the above noted appeals as a guiding principle.
“Having heard learned Consel for the parties and perused the documents on record, we are of the view that the stance of the Housing Board is unreasonable. Assuming for the sake of argument that there was some delay on the part of New Town Electric Supply Co. Ltd., a public sector company, in laying down the HT and LT cable , but apart from the fact that no documents /evidence in that behalf was admittedly adduced by the Housing Board, no explanations forthcoming for the stated unforeseen circumstances which were beyond the control of the Board, as stated in the afore-stated communication dated 04.07.2010 . Having accepted the entire sale consideration for the flats in question, as farback as in October, 2008 in view of the clear stipulation in the brochure for payment of interest at the rate, prevalent in savings bank account of State Bank of India , beyond the period of January, 2009 up to the date of delivery of possession, we are of the opinion that the Complainants deserve to be adequately compensated for the inordinate delay of almost three years in delivery of possession. As the rate of interest in savings bank account is revised from time to time, we feel that award of interest @ 6% p.a., which would be inclusive of the compensation on account of harassment etc., to the Complainants from 01.01.2009 till the date of actual possession, would sub-serve the ends of justice. We direct accordingly. The payment of interest in terms of this order shall be made to the Complainants within four weeks from the date of receipt of a copy of this order, failing which the Housing Board shall be liable to pay interest @ 9 % p.a instead of 6 % p.a. “
Since the Hon’ble National Commission has held that the Appellant who prayed for compensation for his sufferings cannot be deprived from getting such relief , we are of the view that in terms of the agreement between themselves as quoted above cannot be overlooked since we are concerned about the terms of agreement between the parties. The reasons as shown by the Respondents herein with regard to unavoidable circumstances as reflected in the body of the impugned judgment coupled with depreciation value and other extraneous reasons which led the Ld. Forum concerned to dismiss the claim case deserved to be interfered with in this Appeal. We allow the appeal ex parte since none appears for the Respondents on the date of hearing and direct the Respondent to pay interest @ 4% p.a , as claimed, which would be inclusive of compensation on account of harassment , litigation cost, mental agony etc., for a period of 30 months, as prayed for. The amount so calculated at the rate of 4% as claimed shall be paid within eight weeks from date i.d. to pay such amount @ 8% per annum . With these observations and directions this appeal stands disposed of. We do not pass separate order with regard to payment of costs.
