State Consumer Disputes Redressal Commission
Jagadish Chandra Roy Pratihar vs Project Manager/Site In Charge, ... on 17 July, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1164/2014 (Arisen out of Order Dated 02/09/2014 in Case No. Complaint Case No. CC/32/2014 of District Burdwan) 1. Jagadish Chandra Roy Pratihar S/o Late Ramendra Krishna Roy Pratihar & Subhajit Roy Pratihar, S/o Sri Jagadish Chandra Roy Pratihar, Bhatchala Mansatala, Burdwan -3 ...........Appellant(s) Versus 1. Project Manager/Site in Charge, Renaissance Township Goda, Nababhat More, NH/2, Burdwan - 713 102. 2. Authorized Officer/ Head of office, Shrachi Burdwan Developer Pvt. Ltd. Shrachi Tower, 686 Anandapur, E.M. Bypass, Kolkata-700 107. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mr. R. S. Ganguly , Advocate For the Respondent: Mr. Barun Prasad., Advocate ORDER
Date: 17-07-2015 Sri Debasis Bhattacharya This appeal has been filed by the Appellants against the Order dated 02-09-2014 in C.C. No. 32/2014, passed by the Ld. District Forum, Burdwan whereby the instant complaint case has been dismissed on contest. Being aggrieved by and dissatisfied with the same, the Complainants thereof have preferred this appeal.
Case of the Complainants, in a nutshell, is that they entered into an agreement with the OPs whereof the OPs agreed to handover possession of the flat in question by 28-01-2013, i.d., the allottees would be entitled to compensation @ Rs. 6,000/- p.m. The OPs delivered possession of the flat to the Complainants on 31-08-2013. Thus, there is a delay of 7 months for which they are entitled to a compensation for a sum of Rs. 42,000/-. As the OPs refused to pay the same, finding no other alternative, they filed the instant case.
Case of the OPs, on the other hand, is that as per Clause Nos. 11(a) of the General Terms and Conditions of the agreement executed between the parties, the Company would contemplate to complete construction of the Bungalow and complete the property within 24 months from the date the Company receives the duly countersigned allotment letter from the allottee or the date of sanction, whichever is later, save due to Force Majeure or due to failure by the allottee to timely pay any part or portion of the total price or any of the other charges, deposits and/or payments to be made by an allottee under the allotment letter or the General Terms and Conditions or in case of failure on the part of the allottee to abide by any of the terms and conditions of the General Terms and Conditions. On several occasions some local inhabitants illegally prevented the OPs from carrying out the construction works in the said project and such situations were completely beyond the control of the OPs. The OPs issued letters informing happening of those incidents to purchasers as well as various statutory authorities. Because of such hostile situation which was completely beyond the control of the OPs, the property of the Complainant could not be constructed and handed over within the period referred to in the General Terms and Conditions. After completion of construction and upon receipt of all receivables in terms of the provisional allotment letter, the OPs delivered possession of the subject flat to the full satisfaction of the Complainant.
The Ld. District Forum dismissed the complaint case on contest without any costs.
The moot point to be considered in this appeal is whether any infirmity/illegality has been committed by the Ld. District Forum over dismissal of the instant complaint case, or not.
Decision with reasons Ld. Advocate for the Appellants has submitted that parties to a contract are duty-bound to abide by the terms and conditions of the agreement in letter and spirit. Insofar as Clause 12 of the General Terms and Conditions stipulates that failure to handover timely possession of the flat entails compensation @ Rs. 6,000/- per month, Respondents are under an obligation to pay Rs. 42,000/- to the Appellants for breaching the deadline by 7 months. However, the Ld. District Forum erred in appreciating this inherent important condition of the Agreement executed between the parties and dismissed the case which has caused great prejudice to them. The Ld. District Forum did not consider the principles of natural justice and the case in the complaint. The flat was actually handed over to the Appellants on 31-08-2013 through a registered deed of sale, which was scheduled to be done on 28-01-2013. Hence, there was a delay of 7 months and for this delay, Appellants are entitled to get Rs. 42,000/- as compensation as per the General Terms and Conditions (GTC). From the documents submitted by the Respondents before the Ld. District Forum, it transpired that Burdwan Renaissance Township Citizens Welfare Association vide their letter dated 05-11-2013 intimated the MD of the Respondents that they were facing problems from local people and land owners for various reasons. A case in this regard was moved before the Ld. Court of Sub-Divisional Magistrate, Burdwan Sadar vide Case No. MP/1219/2013, u/s 144 (2), Cr.P.C., dated 30-12-2013 and the same was disposed on 24-02-2014. The chaos and agitation done by the local people and others in the Renaissance Township had no connection whatsoever with the delay of 7 months to handover the possession of the flat in question to the Appellants as it was handed over before 3 months of agitation. Precisely, although in terms of the agreement concerned the Respondents were under obligation to handover possession of the flat on 28-01-2013, actual possession was given on 31-08-2013 and an intimation letter to this effect was issued to the Respondent No. 2 on 05-11-2013 and the case was filed before the Ld. Sub-Divisional Magistrate on 30-12-2013 and the same was disposed of on 24-02-2014. Hence, it is a fact that the Respondents handed over the flat after 7 months' delay for their own cause, but never due to Force Majeure and the said clause as stated in the GTC is not at all applicable in respect of delay in delivering the flat. It is further argued by the Ld. Advocate that no doubt, at the time of registration of the flat, the Respondents had managed to get the signature of the allottee confirming peaceful possession in an undertaking along with other related registration papers. However, such undertaking was only related to the construction, specifications, fittings and fixtures and none else. So, it does not mean that the Appellants were satisfied and they condoned the delay in delivering possession of the flat in question. The Ld. District Forum, however, did not consider their sufferings over delayed possession of the flat although they fulfilled their part of contractual obligations in toto. The impugned order being bad in law, it be set aside.
Ld. Advocate for the Respondents has contended that in terms of clause 11(a) of the GTC, they made wholehearted endeavour to complete construction of property within 24 months. Such 24 months has to be calculated from the date of Respondents received the countersigned provisional allotment letter from the allottee or the date of sanctions, whichever was later. The word sanction was used in the GTC in a broader sense which includes, but not limited to sanction of building plan by the competent authority, sanction from the West Bengal Ground Water Authority for withdrawing ground water and sanction of electrical connection from the WBSEDCL were also included. The Respondents received the countersigned allotment letter from the Allottee on 29-03-2010 and received sanctions for electricity layout drawing from the WBSEDCL on 30-12-2010. He further argued that delivery of possession of the property depends upon construction of the building save delay due to Force Majeure conditions. Force Majeure defined in the GTC as any event beyond the control of the Respondents. On several occasions, some local inhabitants illegally prevented the OPs from carrying out the construction work in the said project and such situation was completely beyond the control of the OPs. After completion of the construction and on receipt of all receivables in terms of the provisional allotment letter, the Respondents delivered possession of the flat to the complete satisfaction of the Appellants. The Appellants having been satisfied taken over possession of the flat without any protest. Accordingly, there is no merit in the instant appeal and the same is liable to be dismissed. From such perspective, the impugned order is perfectly in order and as such, the same be upheld.
The Respondents have attributed violent mob unrest at the project site as the raison d'être behind their inability to adhere to the scheduled time-frame in the matter of handing over possession of property to the Allottees/Appellants. The Appellants, however, sought to refute it contending inter alia that Burdwan Renaissance Township Citizens' Welfare Association vide its letter dated 05-11-2013 apprised the M.D. of the Appellant Company about the harassment they were subjected to because of frequent agitations of local people and the land owners for various reasons. Also, the M.P. Case No. 1219/2013 was filed before the Ld. Court of Sub Divisional Magistrate, Burdwan Sadar on 30-12-2013 and disposed of on 24-02-2014 which is indicative of the fact that the chaos and agitation done by the local people and others in the Renaissance Township had no connection whatsoever with the delay of 7 months to handover the possession of the flat to the purchasers, since it was handed over before 3 months from the agitation. On going through the letter dated 05-11-2013 of Burdwan Renaissance Township Citizens' Welfare Association, however, it transpires that it was not developed overnight, but they were facing such awkward situation over the past two years. This clearly nullifies the contention of the Appellants.
There is nothing on record to suggest that at the time of receiving provisional allotment letter from the Respondents or returning the same duly countersigned, the Appellants witnessed any hostile situation at the project site. Rather, the period mentioned by the Burdwan Renaissance Township Citizens' Welfare Association vide their letter dated 05-11-2013, more or less coincides with the intervening period between handing over the countersigned allotment letter to the Respondents by the Appellants and actual delivery of possession of the flat in question. So, it can reasonably be presumed that disputes at the project site started after the project related work resumed over there.
No doubt, some teething problems do sometimes occur when a mammoth project of this magnitude is embarked upon. However, no one can predict whether project related disputes would escalate to such a proportion that it would become a law & order situation stalling project related work at site. In most of the cases, it is successfully contained through negotiations and as a result, real-estate projects are booming across the State. We can gauge the enormity of the situation at the project site from the fact that the Respondents have been able to complete only 40 - 45% of the project work so far and that presently the site office of the Respondents have allegedly been forcibly shut down by an umbrella organization under the name & style, Paschim Burdwan Krishi Kalyan Samity.
Let us not forget that a developer has nothing to gain over delayed delivery of property to the allottees; it only shoot up the project cost and earn them bad name. In absence of any documentary evidence/proof from the side of the Appellants to the contrary, we are inclined to hold that violent protests spearheaded by Paschim Burdwan Krishi Kalyan Samity started while the project work was in progress and quite obviously, a developer is hardly expected to handle such hostile law and order situation on their own. As per the P Ramanatha Aiyar's Law Lexicon, "Force Majeure" means 'irresistible force or compulsion, circumstances beyond one's control', which to our estimation is very much applicable in the instant case. In terms of Clause 12 of the GTC, which has been agreed upon by both sides, the Respondents are not liable to pay compensation for giving delayed possession of property for reasons of force majeure.
In the given facts and circumstances, we find nothing wrong with the findings of the Ld. District Forum that the Appellants are not entitled to get any compensation from the Respondents over delayed delivery of the flat in question.
In the result, the appeal fails.
Hence, ORDERED That the appeal be and the same is dismissed on contest against the Respondents, but without any costs. The impugned order is hereby affirmed. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER