State Consumer Disputes Redressal Commission
Sri Dipak Kumar Das vs M/S. Gai Projects (P) Ltd. on 16 August, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/521/2016 ( Date of Filing : 01 Dec 2016 ) 1. Sri Dipak Kumar Das S/o Sisir Kr. Das, presently, 13/1A, Central Govt. Residential Qtr., Dover Lane Extension, P.S. Gariahat, Kolkata -700 029. 2. Smt. Deepanwita Das W/o Dipak Kr. Das, presently, 13/1A, Central Govt. Residential Qtr., Dover Lane Extension, P.S. Gariahat, Kolkata -700 029. ...........Complainant(s) Versus 1. M/s. Gai Projects (P) Ltd. Regd. office, 29A, Nandan Road, P.S. - Bhowanipur, Kolkata - 700 025. 2. M/s IKM Network Pvt. Ltd. 6/3, Balaram Bose 1st Lane, P.S. - Bhowanipur, Kolkata -700 020. 3. M/s. Debabrata Properties Pvt. Ltd. Regd. office at 548, Parnashree Pally, P.S. - Behala, Kolkata -700 060, rep. by its Director, Sri Debabrata Sarkar. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Mr. Prasanta Banerjee, Mr. Amit Kumar Saha, Advocate For the Opp. Party: Mr. Abhijit Sinha, Advocate Mr. Abhijit Sinha, Advocate Mr. Abhijit Sinha, Advocate Dated : 16 Aug 2019 Final Order / Judgement PER:HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant Complaint under Section 17 of the Consumer Protection Act, 1986 (in short, 'the Act') is at the instance of a couple/intending purchasers against the land owners (opposite party Nos. 1 & 2) and the developer/builder (opposite party No.3) on the allegation on deficiency in services on the part of them, primarily on the part of developer in a consumer dispute of housing construction.
Succinctly put, Complainants' case is that on 20.10.2012 they entered into an agreement for sale with the opposite parties to purchase of a self contained flat measuring about 1450 Sq. ft. super built up area being Flat No. 3A on the 3th floor and one open car parking space measuring about 120 sq. ft. in the ground floor in a building lying and situated at Premises No.9/1, Jadavpur East Road, P.S.- Jadavpur, Kolkata-700 032, District South 24 Parganas within the local limits of Ward No.96 of Kolkata Municipal Corporation at a total consideration of Rs.46,00,000/-. The complainants state that terms of the agreement for sale the OPs are under obligation to complete the construction within 30 months from the date of agreement. The complainants have also stated that they have already paid Rs.15,00,000/- to OP No.3 as part consideration amount towards the total consideration of Rs.46,00,000/- for the said flat and open car parking space on diverse dates. The complainants have alleged that the OP No.3 did not complete the construction and did not communicate regarding development of the said project. On the contrary, on 04.08.2016 they received an e-mail from the OP No.3 proposing a new agreement for sale under new terms and conditions which they did not accept. The complainants have stated that on 16.09.2016 they served a notice upon the developer asking him to handover the possession of the subject flat and car parking space and also to execute the deed of conveyance in favour of them but all the requests and persuasions went in vein. Hence, the complainants have come up in this Commission with the present complaint with prayer for following reliefs viz.- (a) the OP No.3 be directed to handover possession of the flat and open car parking space as mentioned in the schedule of the agreement for sale on receipt balance consideration amount; (b) the OPs be directed to execute and register the deed of conveyance in respect of the flat and car parking space in question; (c) the OP No.3 be directed to pay interest 18% p.a. against the consideration of Rs.15,00,000/- already paid; (d) the OPs be directed to pay compensation of Rs.10,00,000/- for harassment and mental agony; (e) to direct the OPs to pay litigation cost of Rs.50,000/- etc. The Opposite Parties by filing a joint written version have admitted the agreement for sale dated 20.10.2012 and payment of Rs.15,00,000/- by the complainants but it has been stated that the Kolkata Municipal Corporation for unknown reason did not sanction the proposed plan till June, 2016 without clarification anything to the developer. The OPs have stated that from the year 2012 to middle of the year 2016 the cost of project became double for which the developer approached to the complainant that he is ready to sacrifice his profit and also ready to handover the said flat if they kindly pay increased flat at Rs.1560/- per sq. ft. without profit and only cost price of the flat at Rs.4560/- per sq. ft. and Rs.2,00,000/- extra cost for car parking space. The OPs have stated that as there was no deficiency of services on the part of them, the complaint should be dismissed.
Both the parties have tendered evidence through affidavit. The complainants have given reply against the questionnaire set forth by OPs. However, the OPs did not file reply against the questionnaire put forward by the complainant. Besides the evidence led by the parties, they have also relied upon some documents available with the record.
On perusal of pleadings and evidence on record it is transpires that the OP Nos. 1&2 are the owners of a piece of land measuring about 20 Cottahs and 40 Chittaks with standing structure thereon lying and situated at Premises No.9/1, Jadavpur East Road, P.S.- Jadavpur, Kolkata-700 032, District South 24 Parganas within the local limits of Ward No.96 of Kolkata Municipal Corporation. On 30.07.2011 the OP Nos. 1&2 being land owner had entered into a development agreement with the OP No.3 for raising construction of a multi storied building over the said property. Accordingly, on 07.08.2012 the land owners have also executed one registered general power of Attorney in favour of OP No.3 authorising him to obtain sanction plan from the corporation and to carry out the development of the proposed construction and to enter into agreement for sale with the perspective flat/unit purchaser for and on behalf of the land owners.
Being emboldened with the power conferred upon him, OP No.3 on behalf of himself and as Constituted Attorney of OP Nos. 1&2 had entered into an agreement for sale with the complainant to sell one self contained flat measuring about 1450 Sq. ft. super built up area being Flat No. 3A on the 3th floor and one open car parking space measuring about 120 sq. ft. in the ground floor in a building lying and situated at Premises No.9/1, Jadavpur East Road, P.S.- Jadavpur, Kolkata-700 032, District South 24 Parganas within the local limits of Ward No.96 of Kolkata Municipal Corporation at a total consideration of Rs.46,00,000/-. It also remains undisputed that the complainants have paid Rs.7,50,000/- on 03.08.2013, Rs.4,50,000/- on 04.08.2013 and further Rs.3,00,000/- on 02.04.2016 aggregating a sum of Rs.15,00,000/- towards the said total consideration amount.
The complainants have alleged that the developer did not started construction and on the contrary sent one e- mail on 04.08.2016 whereby he asked the complainants to pay inflated rate for a flat measuring 1250 sq. ft. on the 2nd floor at a consideration of Rs.62,00,000/-. However, the complainants did not accept such new agreement or offer and stuck to the original agreement dated 20.10.2012. The subsequent agreement being not accepted by the complainants, the said agreement has no value in the eye of law.
The complainants have filed the complaint basing upon the agreement for sale dated 20.10.2012 which is the genesis of the dispute. 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" .
From the averment in the written version it appears that the competent authority i.e Calcutta Municipal Corporation did not sanction the proposed plan till June, 2016. Surprisingly enough, without obtaining any sanction plan the developer has collected Rs.15,00,000/- from the complainants. In III (2007) CPJ 7 (Kamal Sood vs.- DLF Universal Ltd.) the Hon'ble National Commission relying upon the decision of the Hon'ble Supreme Court reported in II (2000) CPJ 1 (Ghaziabad Development Authority Vs.-Union of India) has observed that it is unfair trade practice on the part of developer/builder to collect money from the prospective buyers without obtaining the required permission. It is the duty of the builder to obtain the requisite permissions or sanction, in the first instance, and thereafter, recover the consideration money from the purchaser. In the instant case, when without obtaining the sanction building plan from the Corporation, the developer has collected money of Rs.15,00,000/- from the complainants, this not only construes deficiency in services but also falls under unfair trade practice as defined under Section 2(1)(r) of the Act.
At the time of final hearing Mr. Barun Prasad, Ld. Advocate for the OPs has submitted that as the dispute arose between the parties regarding fixing of price, the complaint is not maintainable before a Forum constituted under the Act. In support of his submission he has placed reliance to a decision of Hon'ble National Commission reported in 2008 CTJ 283 (Kartar Singh Vs.- Delhi Development Authority). The facts and circumstances of the instant case is altogether different with the reported decision because in the said case a dispute arose regarding the price of flats/units. In the instant case, the agreement which is binding upon the parties clearly depicts the price of the flat and car parking space is Rs.46,00,000/-. Therefore, I do not find any force in such submission because the parties had entered into the agreement for sale on 20.10.2012 with open eyes after evaluating its pros and cons. Either of the parties did not pick up any quarrel with the terms and conditions of the said agreement. Therefore, the agreement executed by and between the parties dated 20.10.2012 towers above the rest.
So far as the committed date of delivery of possession is concerned, it would be pertinent to record Clause 7.1 of the agreement which is set out below-
"7.1 upon construction of the said Unit, the Developer shall give notice thereto to the Purchasers who shall within 15 (fifteen) days of service of the said notice, take possession of the said Unit after fulfilling all his/her covenants hereunder."
Evidently, the developer did not show any inclination to handover the flat in question and car parking space in favour of the complainants. In this regard, the requests and persuasions including legal notice dated 16.09.2016 could not change the stand of the developer to claim higher price.
Although there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of the case when the complainants have already paid a substantial amount and ready to pay the balance consideration amount to fulfil their part of obligations, a period of 3 (three) years appears to be reasonable for completion of the contract. In other words, the possession was required to be given to the complainants within October, 2015. It must be noted that law is well settled in this regard. Whenever, the builder/developer has refused to perform the contract without valid justification the buyer is entitled for compensation as he has been deprived of price escalation of the flat. Every breach of contract gives rise of an action for damages.
Therefore, on evaluation of materials on record and having heard the Ld. Advocates appearing for the respective parties it emerges that the complainants being 'consumer' within the meaning of Section 2(1)(d) of the Act hired the services of OPs but the OPs were found deficient in rendering services within the meaning of Section 2(1)(g) and read with Section 2(1)(o) of the Act. As a result, the complaints are entitled to some reliefs as prayed for.
In our view, a direction upon OP No.3 to handover the possession of the flat and the car parking space in favour of the complainants within 60 days and to direct the OP Nos. 1 to 3 to execute the deed of conveyance in favour of complainant within 30 days thereof will meet the ends of justice. Despite collection of Rs.15,00,000/- from the complainants when the developer did not keep his promise to deliver the possession of the flat and car parking space to the complainants certainly it causes tremendous mental agony and harassment to the complainants for which the complainants are entitled to compensation and considering the loss suffered by the complainants, we think a compensation in the form of simple interest @ 9% p.a. over the amount of Rs.15,00,000/- from 21.10.2015 (after expiry of 3 years from the date of agreement) till the date of actual delivery of possession in the facts and circumstances will serve the purpose. As the situation compelled the complainants to lodge the complaint, they are also entitled to litigation cost which we quantify at Rs.10,000/-.
In view of the above discussion, the complaint is allowed on contest against the OP Nos. 1 to 3 with the following directions:-
The OP No.3 is directed to deliver possession of the subject flat and car parking space as mentioned in the Second schedule to the agreement for sale dated 20.10.2012 in favour of complainants within 60 days from date subject to payment of balance consideration amount of Rs.31,00,000/- in favour of OP No.3, The OPs are jointly and severally directed to execute and register the deed of conveyance in favour of the complainant in respect of the property mentioned above within 30 days from the date of delivery of possession, The OP No.3 is directed to pay compensation in the form of simple interest @ 9% p.a. over the amount of Rs.15,00,000/- in favour of the complainants from 21.10.2015 till its full realisation, The OP No.3 is directed to pay a sum of Rs.10,000/- to the complainant as costs of litigation, The amount of Rs.31,00,000/- payable by the complainants shall be adjusted with the amount of compensation and litigation cost payable by OP No.3 in favour of the complainants.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER