State Consumer Disputes Redressal Commission
Saroj Kumar Upadhaya vs M/S. India Green Reality (P) Ltd. on 19 September, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/56/2018 ( Date of Filing : 29 Jan 2018 ) 1. Saroj Kumar Upadhaya S/o Lt. Jivannath Upadhaya, HIG-1, 3, Niva Park, Phase-II, Brahmapur, Badamtalla, Kolkata - 700 096. 2. Suman Upadhaya W/o Saroj Kr. Upadhaya, HIG-1, 3, Niva Park, Phase-II, Brahmapur, Badamtalla, Kolkata - 700 096. ...........Complainant(s) Versus 1. M/s. India Green Reality (P) Ltd. Regd. office at BA-30, Rajdanga Main Road, P.S. - Kasba, Kolkata - 700 107, Dist. South 24 Pgs. 2. Sri Amitava Samanta S/o Lt. Dilip Kumar Samanta, 1/2, Purbachal, Nibedita Road, P.S. - Kasba, Kolkata - 700 078, Dist. South 24 Pgs., W.B. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Ms. Rimpa Rajpal, Advocate For the Opp. Party: Dated : 19 Sep 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 (for brevity, 'the Act') is at the instance of a couple/ intending purchaser against the developer/ promoter and its director on the allegation of deficiency of services in a dispute of housing construction.
Succinctly put, complainant's case is that on 6.3.2013 they entered into an agreement with the Opposite Parties to purchase of a plot of land measuring about 2 cottahs equivalent to 1440 sq. ft. together with one Bungalow named 'Sandhyaraag' to be constructed in the 1st floor and 1 car parking space (open garage) measuring about 234 sq.ft. more or less on the ground floor of the said bungalow in a plot of land of 24 acres 40 decimals lying and situated in Mouza - Raipur, P.S- Sonarpur, Dist- South 24 Parganas within the local limits of Kalikapur- II Gram Panchayat at a total consideration of Rs. 36,20,500/-. The complainants also stated that on 5.1.2015 they came to another agreement for sale in respect of same bungalow wherein the Opposite Parties agreed to construct an area of 1700 sq. ft. super built up area at a total consideration of Rs. 36,20,500/-. On 20.2.2015 the parties had entered into a registered agreement for sale in respect of same bungalow i.e. a plot of land measuring about 2 cottahs equivalent of 1400 sq. ft. together with one bungalow named ' Sandhyaraag' to be constructed in the said plot of land and numbered as 'Unit No. B-29, left part owner only' having constructed an area measuring 1700 sq. ft. super built up area at a consideration of Rs. 36,20,500/-. In order to purchase the said Bungalow, the complainants have obtained a loan of Rs. 22,62,050/- from the Housing Development Finance Corporation with interest thereon. The complainants have stated that as per terms of the agreement, the OP No. 1 was under obligation to hand over the subject flat and the Bungalow within 36 months i.e. within 20.02.2018. The complainants have stated that despite payment of Rs. 32,04,862 on diverse dates the Opposite Parties did not take any steps to hand over the subject flat. Hence, the complainants approach this Commission with prayer for following reliefs, viz.- (a). to direct the Opposite Parties to deliver the Bungalow as per the terms of agreement for sale; (b) to direct the Opposite Parties to pay an amount of Rs. 10,00,000/- as compensation on account of the harassment and mental agony; (c) to direct the Opposite parties to pay of Rs. 2,00,000/- as litigation costs etc. The Opposite Party Nos. 1 and 2 by filing a joint written version have admitted the existence of the agreement and the payment of the amount by the complainants as part consideration amount towards the total consideration amount. However, the OP Nos. 1 and 2 have alleged that the complainants have made default in payment of consideration amount within time. They have further stated that there is no delay in the project work on the part of them and as such the complaint should be dismissed.
In support of their case, complainant No. 1 has tendered evidence on affidavit on behalf of himself and also on behalf of his wife i.e. complainant No. 2. The Opposite Parties did not file any questionnaire to test the veracity of statement of the witness. Ultimately the Opposite Parties did not contest for which the complaint was heard ex-parte. At the time of hearing, on behalf of complainant a brief notes of argument has been filed.
From the pleading of the parties and the evidence on record it would reveal that on 6.3.2013 the complainants had entered into an agreement for sale with the Opposite Parties to purchase of a plot of land measuring about 2 cottahs equivalent to 1400 sq. ft together with one Bungalow named 'Sandhyaraag' measuring about 1700 sq. ft super built up area on the 1st floor and car parking space on the ground floor which is more fully described in schedule 'B' and 'B-1' to the registered agreement for sale dated 20.2.2015 at a total consideration of Rs. 36,20,500/-. The overwhelming evidence on record makes it quite clear that the complainants have paid Rs. 32,04,862/- as part consideration amount towards the said total consideration amount leaving a balance amount of Rs. 4,16,638/- payable by the complainants.
The Clause 8 of the registered Agreement for Sale dated 20.2.2015 provides that the Opposite Parties were under obligation to hand over the subject Bungalow as per specification within 36 months from the date of agreement for sale subject to Force Majeure circumstances. However, the Opposite Parties have failed to advance any Force Majeure circumstances. Therefore, as per terms of the agreement, the Opposite Parties were under obligation to hand over the subject Bungalow in complete inhabitable condition within 20.2.2018.
It is undisputed proposition of law that the parties are bound by the terms of agreement. In a land mark decision reported in AIR 1996 SC 2508 (Bharati Knitting Company vs. DHL World Wide Expressed Currier 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, learned 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 Krishnamani, 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 terms in the contract, the parties are bound by the terms in the contract."
In their written version the Opposite Parties have categorically stated that the Bungalow in question is ready and there is no deficiency in services on the part of them. However, the OPs have not filed any document to show that they have ever offered possession of the Bungalow to the complainant. Therefore, when in spite of receipt of more than 90% of total amount when the developer could not keep their promise in delivering possession of the property within the time frame, certainly the OP No. 1/ developer was deficient in rendering of services.
On evaluation of materials on record and having heard the Ld. Advocate for the complainants it appears to us that the complainants being 'Consumer' as defined in section 2 (1)(d) of the Act hired services of Opposite Parties on consideration to purchase of a Bungalow as per registered Agreement for Sale dated 20.2.2015 on consideration and despite receipt of almost entire consideration amount when the Opposite Parties have failed to keep their commitment in delivering the possession of the Bungalow in question within the time frame, they are deficient in rendering of services within the meaning of section 2 (1) (g) read with section 2 (1) (o) of the Act. Accordingly, the complainants are entitled to some reliefs. In our view, an order to direct the Opposite Parties to deliver the Bungalow as per agreement for sale within 60 days after receipt of balance consideration amount will meet the ends of justice. As the Opposite Parties have failed to deliver the possession within the committed date of possession i.e. within 20.2.2018, the OPs are liable to pay compensation in the form of simple interest @ 9% p.a. from 21.2.2018 till the date of delivery of possession over the amount of Rs. 32,04,862/-. As the situation compelled the complainants to lodge complaint, they are also entitled to litigation cost which we quantify at Rs. 10,000/-.
In view of the above, the complaint is allowed ex parte with the following direction:
(i) the Opposite Parties are jointly and severally directed to deliver possession of the 'B' and'B-1' schedule property to the registered agreement for sale dated 20.2.2015 in favour of the complainants within 90 days from date on payment of balance consideration of Rs. 4,16,638/- by the complainant In favour of Opposite Party No. 1;
(ii) the Opposite Parties are jointly and severally directed to pay compensation in the form of simple interest @ 9% p.a. from the committed date of possession i.e. form 21.2.2018 till the actual date of delivery of possession over the amount of Rs. 32,04,862/-.
(iii) the Opposite Parties are jointly and severally directed to pay Rs. 10,000/- to the complainants as costs of litigation;
(iv) The balance amount payable by the complainants, if any, shall be adjusted by the Opposite Parties 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 complainants, in terms of the order. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER