State Consumer Disputes Redressal Commission
Sri Mahesh Prasad Sah vs Sri Niladri Bhattacharyya on 4 April, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/543/2016 ( Date of Filing : 07 Dec 2016 ) 1. Sri Mahesh Prasad Sah S/o Lt. Sita Ram Sah, Kumar Para, P.O. & P.S. - Dumka, Jharkhand, Pin -814 101. ...........Complainant(s) Versus 1. Sri Niladri Bhattacharyya S/o Lt. Amal Bhattacharyya, M/s S.A. Enterprise, 760, Vidyasagar Sarani, P.S.- Haridevpur, Kolkata-700 063, Dist. South 24 Pgs. 2. M/s. S.A. Enterprise Rep. by its prop., Sri Niladri Bhattacharyya, 103/4D, Diamond Harbour Road, Silpara, Kolkata- 700 008, Dist. South 24 Pgs. 3. Smt. Indrani Dasgupta W/o Lt. Soumitra Dasgupta, 21/1/A, Biren Roy Road(E), P.S.- Behala, Kolkata -700 008, Dist. South 24 Pgs. 4. Sri Sayan Dasgupta S/o Lt. Soumitra Dasgupta, 21/1/A, Biren Roy Road(E), P.S.- Behala, Kolkata - 700 008, Dist. South 24 Pgs. 5. 6. Subhra Dasgupta 42/4, Biren Roy Road (East) P.S. Behala Kol-700008 6. 7. Ava Sengupta E-51, Sonali Park P.S. P.S. Bansdroni, Kol-700070 7. Rina Dasgupta at, Door no 4-5-15/1 Post Office- Ichupuram, Dist- Srikakulam, Pin-532312 8. Saibal Dasgopta at, 42/4, Biren Roy Road 42/4,Biren Roy Road(East),P.S.Behala Kol-700008
9. Shyamal Dasgupta 42/4, Biren Roy Road (East)P.S.- Behala, Kol-700008 10. Sandhya Roy . at, 1/21, Surya Nagar P.S-Regent Park , Kol- 700040 11. 5. Namita Banerjee at,47, Charu Avenue, Kol-700033 ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Mrinal Kanti Maity, Advocate For the Opp. Party: Mr. Mit Guha Roy, Mr.Amit Halder, Juthi Banerjee, Sanjoy Das, Advocate Dated : 04 Apr 2019 Final Order / Judgement The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of an intending purchaser against the developer/builder and its sole proprietor (Opposite Party Nos.1 and 2) and the landowners (Opposite Party Nos. 3 to 11) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
In a capsulated form, the Complainant's case is that on 09.03.2016 he entered into an agreement with the opposite parties to purchase of a self-contained flat measuring about 1100 sq. ft. super built up area on the 2nd floor together with proportionate undivided share or interest along with common rights, benefits, facilities, amenities in the building lying and situated at Premises No.109, Raja Ram Mohan Roy Road, P.S.- Behala, Kolkata - 700008, Dist- South 24 Parganas within the local limits of Ward No.121 of Kolkata Municipal Corporation at a total consideration of Rs.18,00,000/-. The complainant has stated that he paid a sum of Rs.8,00,000/- as part consideration amount towards the said total agreed consideration amount and as per terms of the agreement, he was under obligation to pay the balance amount of Rs.10,00,000/- on the day of execution and registration of the subject flat. The complainant has alleged that the developer assured him to deliver possession of the said flat in complete habitable condition. The complainant has also alleged that the OP No.1/developer assured him that he would hand over the Completion Certificate after obtaining the same from Kolkata Municipal Corporation in respect of the building. The complainant has alleged that he waited till 21.07.2016 with the expectation that the OPs would complete the building and hand over the flat in favour of him but the developer informed him that one of the landowners Soumitra Dasgupta, passed away on 28.11.2015 and unless and until a fresh General Power of Attorney is being procured, it would not be possible to proceed with the formalities to execute and register the Sale Deed. The complainant has specifically alleges that the developer did not make the flat habitable in accordance with the terms and conditions and till date there are several works has been remained in incomplete condition. In this regard, all the requests and persuasions including the correspondences went in vain. Hence, the complainant lodged the complaint with prayer for several reliefs, viz. - (a) to direct the OPs to handover possession of the flat in question in fully finished and habitable condition; (b) to direct the OPs to execute and register the Deed of Sale in respect of the subject flat within a stipulated period; (c) to direct the OPs to pay compensation of Rs.6,00,000/- on account of harassment and mental agony; (d) to direct the OPs to pay the litigation cost of Rs.1,00,000/-.
The Opposite Party Nos.1 and 2 had entered appearance through their Ld. Advocate but ultimately they did not file written version and abstained themselves from contesting the case.
The Opposite Party Nos. 3 to 7and 9 to 11(landowners) were represented through the Ld. Advocate. However, the landowners have not filed any written version disputing the allegations made by the complainant. On the contrary, Ld. Advocate for the contesting landowners has submitted that the landowners are ready and willing to execute the Sale Deed in favour of the complainant.
The complainant has tendered evidence through affidavit. No questionnaire has been filed by the landowners to contradict the statement of the complainant. The complainant has also filed brief notes of arguments at the time of final hearing of the case.
On perusal of pleadings and the evidence on record, it would reveal that the OP Nos. 3 to 11are the owners in respect of a piece of land measuring an area of 3 cottahs 45 sq. ft. together with multi-storied building standing thereon lying and situated at Premises No.109, Raja Ram Mohan Roy Road, P.S.- Behala, Kolkata - 700008, Dist- South 24 Parganas within the local limits of Ward No.121 of Kolkata Municipal Corporation. In order to construct a multi-storied building thereon, the landowners had entered into an Agreement for Development on 16.12.2012 with OP No.2 represented by OP No.1. On that date, the landowners also executed and registered a General Power of Attorney in favour of OP No.1 and handed over the same empowering and authorising him to erect building on the said property and to transfer or sell etc. of the allotted portion of the developer in accordance with the plan sanctioned by the KMC. It is also not in dispute that on 09.03.2016 the complainant had entered into an agreement with the OP No.2 represented by OP No.1 and the other OPs (landowners) to purchase of a self-contained flat measuring about 1100 sq. ft. super built up area on the 1st floor together with proportionate undivided share or interest along with common rights, benefits, facilities, amenities in the said building at a total consideration of Rs.18,00,000/-.
The overwhelming evidence on record makes it abundantly clear that the complainant has already paid Rs.8,00,000/- to the developer on diverse dates as part consideration amount towards the said total consideration amount. In Paragraph-2 of the Agreement, it was stipulated that the balance sum of Rs.10,00,000/- will be paid at the time of registration of the Sale Deed against the subject property.
Needless to say, the parties are bound by 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" .
In this backdrop, let us see the committed date of delivery of possession as per terms of the Agreement.
Clause-10 of the Agreement for Sale is set out below -
"10. That the flat shall be made available for delivery of possession subject to making payment of the full consideration in specified time. If in event the purchaser make any default or delay in making payment or registration of Deed of Conveyance within 30th April, 2016, the developer shall have every right to cancel or terminate the Agreement for Sale and refund the earnest money or part payment to the purchasers after deduction of 10% on total amount received and the said purchaser will have no right to question upon such cancellation of the Agreement".
The materials on record indicate that as per terms of Agreement for Sale, the complainant has fulfilled his part of obligation in making payment of Rs.8,00,000/- as per Clause 2 of the Agreement for Sale and he is ready to pay the balance amount of Rs.10,00,000/- at the time of registration of Sale Deed in accordance with Clause 2(d) of the Agreement. On the contrary, as per Clause-10 of the Agreement, the developer should have delivered possession and execute the Sale Deed within 30.04.2016. However, the developer has failed to keep his promise and even after lapse of three years from the committed date of possession, he is evading himself to fulfil his part of obligations.
Therefore, it is palpably clear that the complainant being 'consumer' as defined in Section 2(1)(d) of the Act hired the services of OP No.2 on consideration and OP No.2 being represented by OP No.1 has failed to fulfil their part of obligations as per Agreement for Sale dated 09.03.2016 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. Therefore, the complainant is entitled to some reliefs. In my view, direction upon the OP Nos.1 & 2 to deliver possession and direction upon all the OPs to execute the Sale Deed within 90 days on receipt of balance amount of Rs.10,00,000/- in favour of the developer will meet the ends of justice. Considering the harassment and mental agony suffered by the complainant, he is entitled to compensation which in my view should be in the form of simple interest @ 10% p.a. over the amount already paid from the committed date of possession i.e. from 01.05.2016 till the date of delivery of possession. Under compelling circumstances, the complainant has to knock the door of a Forum constituted under the Act and therefore, complainant is entitled to litigation cost which I quantify at Rs.10,000/-.
With the above discussion, I dispose of the complaint with the following directions -
The Opposite Party Nos.1 & 2 are directed to deliver Letter of Possession in respect of the flat as mentioned in Schedule 'B' to the Agreement for Sale dated 09.03.2016 in habitable condition in favour of the complainant within 60 days after obtaining Completion Certificate subject to payment of balance consideration amount of Rs.10,00,000/-;, The Opposite Parties are jointly and severally directed to execute the Deed of Conveyance in respect of the flat as mentioned in Schedule 'B' to the Agreement for Sale dated 09.03.2016 within 30 days from the date of delivery of possession;
The Opposite Party Nos.1 & 2 are directed to pay compensation in the form of simple interest @ 10% p.a. from the committed date of possession i.e. from 01.05.2016 till the date of actual delivery of possession over the amount of Rs.8,00,000/- already paid by the complainant;
The Opposite Party Nos.1 & 2 are directed to pay Rs.10,000/- as cost of litigation to the complainant;
The balance amount payable by the complainant, if any, shall be adjusted by OP Nos.1 & 2 out of the compensation payable to them in terms of this order. The balance compensation, if any, shall be paid at the time of offering possession of the flat to the complainant, in terms of this order.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER