State Consumer Disputes Redressal Commission
Rina Samaddar vs M/S. Solace Managementconsultancy ... on 24 October, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/272/2017 ( Date of Filing : 17 Apr 2017 ) 1. Rina Samaddar W/o Subrata Samaddar, BL-298, Salt Lake, Sector-II, Kolkata - 700 091. 2. Subrata Samaddar S/o Sri Debendra Nath Samaddar, BL-298, Salt Lake, Sector-II, Kolkata - 700 091. ...........Complainant(s) Versus 1. M/s. Solace ManagementConsultancy Services (P) Ltd. Regd. office at D-78, Kalkaji(1st Floor), P.S. - Chittaranjan Park, New Delhi - 110 019. 2. Aditya Lal Mukherjee alias Aditya Mukherjee, Director, M/s. Solace Management Consultancy Services (P) Ltd. CF-157, P.S.- Bidhannagar(N), Salt Lake, Sector -I, Kolkata - 700 064. 3. Keya Mukherjee, Director, M/s. Solace Management Consultancy Services (P) Ltd. CF-157, P.S.- Bidhannagar(N), Salt Lake, Sector -I, Kolkata - 700 064. 4. Arunlal Mukherjee, Director, M/s. Solace Management Consultancy Services (P) Ltd. CF-157, P.S.- Bidhannagar(N), Salt Lake, Sector -I, Kolkata - 700 064. 5. Esha Mukherjee, Director, M/s. Solace Management Consultancy Services (P) Ltd. CF-157, P.S.- Bidhannagar(N), Salt Lake, Sector -I, Kolkata - 700 064. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Jagannath Ganguly, Mr. Sudipta Ganguly, Advocate For the Opp. Party: D.B.Choudhuri, Souvik Chatterjee, Mousumi Chakrovorty, Advocate Dated : 24 Oct 2019 Final Order / Judgement The instant complaint under section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the behest of a couple/intending purchaser against a Private Limited Construction Company and its Directors on the allegation of deficiency of services in a dispute of housing construction.
Succinctly put, complainants' case is that on 30.05.2014 they had entered into an agreement with the Opposite Party No. 1 Company to purchase of a self-contained flat measuring about 488 sq. ft. super built up area on the 3rd floor being Unit No. 313 and two covered car parking space measuring about 150 sq. ft. each i.e. 300 sq. ft on the ground floor along with all the easement attached to the plot as per the sanctioned plan of the municipality christened 'Mayer Bari' lying and situated at premises No. 39, Hara kumar Tagore Stand, P.S.- Baranagar, Dist- North 24 Parganas, Kolkata- 700036 within the local limits of Baragangar Municipality at a total consideration of Rs. 15,00,000/- for the flat and Rs. 1,50,000/- each for two car parking spaces totalling to Rs. 18,00,000/-. The complainants have stated that they have paid Rs. 12,25,000/- as part consideration amount towards the said total consideration amount. As per terns of the agreement the OP No. 1 Company was under obligation to complete the subject flat and to hand over the same within 15 months subject to a grace period of 6 months. The complainants have alleged that after expiry of stipulated period time and again they have requested the OP No. 1 Company to hand over the subject flat and car parking spaces but all the requests and persuasions remained unheeded. Hence, the complainants' have approached this commission with prayer for following reliefs, viz.- (a) an order directing the Opposite Parties to complete and/or perform completion of the property described in Schedule B to the petition of complaint failing which to refund the sum of Rs. 12,25,000/- along with interest there on; (b) to pay a sum of Rs. 8,00,000/- as compensation; (c) to pay a sum of Rs. 1,00,000/- as litigation costs etc. The Opposite Party Nos. 1 to 3 and 5 by filing a written version has simply stated that as the petition of complaint has not been attached to the notice dated 09.09.2017 send by the complainant, it is not possible for them to oppose the same para wise.
In support of their case, complainant No. 1 has tendered evidence through affidavit on behalf of herself and also on behalf f complainant No. 2. The complainants have also given reply against the questionnaire set forth by the contesting Opposite Parties. However, the Opposite Parties did not file any evidence on affidavit. At the time of final hearing the complainant and OP Nos. 1 to 3 and 5 have filed brief notes of argument in support of their respective cases.
On perusal of pleadings, evidence led by the complainants coupled with the documents annexed therewith, it is transpired that on 30.05.2014 the complainants being intending purchasers had entered into an agreement for sale with OP No. 1 Company to purchase of a self-contained flat measuring about 488 sq. ft. super built up area on the 3rd floor being Unit No. 313 and two covered car parking space measuring about 150 sq. ft. each i.e. 300 sq. ft on the ground floor along with all the easement attached to the plot as per the sanctioned plan of the municipality christened 'Mayer Bari' lying and situated at premises No. 39, Hara kumar Tagore Stand, P.S.- Baranagar Dist- North 24 Parganas, Kolkata- 700036 within the local limits of Baragangar Municipality at a total consideration of Rs. 15,00,000/- for the flat and Rs. 1,50,000/- each for two car parking spaces totalling to Rs. 18,00,000/-. The overwhelming evidence on record make it quite clear that the complainants have already paid Rs. 12,25,000/- on diverse dates as per consideration amount towards the said total consideration amount.
It is trite law that the parties are bound by the agreement. A person who signs a document contains 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 World Wide 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 singed 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 clams 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 regard Article V (B) (inner page 6 of the agreement for sale) appears to be relevant which runs as follows:
"(b) subject to Force Majeure, within 15 (fifteen) months form date of signing of this agreement the OWNER /DEVELOPER shall make the FLAT AND/OR/UNIT habitable and give Notice to the Purchasers/S shall, within 7 (seven) days of date of the notice take possession of the flat and/or Unit and the Properties appurtenant thereto, after fulfilling all obligations under these presents. The Owner/Developer shall be entitled to a GRACE PERIOD of Six months (hereinafter refer to as the GRACE PERIOD), .............."
Therefore it is quite evident that as per terms of the agreement the OP No. 1 Company being developer/owner of the land was under obligation to hand over the subject flat in favour of the complainants within February, 2016.
It is well settled that after making payment of a bulk consideration amount, a purchaser cannot wait indefinitely for having a roof of their head. In that perspective, when the Opposite Party No. 1 has failed to hand over or deliver the possession within the time frame and did not keep promise as per terms of the agreement, this itself amounts to deficiency in services.
At the time of hearing Mr. D.B Choudhuri, Ld. Advocate for the Opposite Parties has submitted that prior to lodging the complaint Opposite Party No. 4 Arun Lal Mukherjee died on 10.04.2016 and in support of his submission he has placed before the bench a copy of Death Certificate issued by the Bidhannagar Municipal Corporation, which speaks that OP No. 4 passed away on 10.06.2016. Since OP No. 4 was one of the directors of OP No. 1 Company and other Directors are still alive and further the complainants being intending purchaser had entered into an agreement for OP No. 1 Private Limited Company, the Directors of the Company will be responsible to fulfil the terms and obligations of the agreement for sale dated 30.05.2014 and death of OP No. 4 will not be a dent to the complainants' case.
On evaluation of materials on record it would appear that the complainants being 'consumer' hired the services of the Opposite Parties in a dispute housing construction and the Opposite parties, particularly the OP No. 1 has failed to keep his promise in handing over the flat and to execute the sale deed in favour of the complainants within the stipulated period and thereby deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. In the premises, complainants are entitled to some reliefs. In my view, an order directing the Opposite Party No. 1 to hand over possession and to execute the sale deed in favour of the complainants within 60 days after receipt of balance consideration amount will meet the ends of justice, in default, the Opposite Party No. 1 Company shall refund the amount of Rs. 12,25,000/- along with the compensation in the form of simple interest @ 10% p.a. from the date of each payment till its realisation will meet the ends of justice. Under compelling circumstances, the complainants have to come up in this commission for which they are entitled to litigation costs which I quantify at Rs. 10,000/-.
In view of the above, the complaint is allowed on contest with the following directions:
(i) The Opposite Party No. 1 Company is directed to hand over possession and to execute and register the deed of conveyance in favour of the complainants in respect of the property as mentioned in the 2nd schedule to the registered Agreement for Sale dated 30.05.2014 within 60 days from date on receipt of balance consideration amount of Rs. 5,75,000/-, failing which the Opposite Party No. 1 Company is directed to refund the amount of Rs. 12,25,000/- along with compensation in the form of simple interest @10% p.a. from the date of each payment till its total realization. (ii) The Opposite Party No. 1 Company is directed to make payment of a sum of Rs. 10,000/- as costs of litigation in favour of complainants which must be paid within 60 days from date.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER