State Consumer Disputes Redressal Commission
Sri Pabitra Mukherjee vs M/S. Solace Managementconsultancy ... on 2 January, 2020
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/434/2016 ( Date of Filing : 28 Sep 2016 ) 1. Sri Pabitra Mukherjee S/o Sri Pradip Mukherjee, Vill. Apurbapur, P.O.- Jalaghata(Singur), P.S. Singur, Dist. Hooghly, Pin- 712 409. 2. Ms. Joyita Bhattacharya D/o Sri Jayanta Bhattacharya, 196/69, J.N. Gupta Lane, Baidyabati, Dist. Hooghly, Pin-712 222. ...........Complainant(s) Versus 1. M/s. Solace ManagementConsultancy Services (P) Ltd. Rep. by Sri Aditya Mukherjee, Block CF, 157, Salt Lake City, Kolkata-700 064. 2. Keya Mukherjee W/o Sri Aditya Mukherjee, Block CF, 157, Salt Lake City, Kolkata-700 064. 3. Sri Rajat Kr. Mitra P-16, C.I.T. Road, Scheme VI-M, Kolkata - 700 054. 4. Sri Subrata Mitra 32/E, Joy Mitra Street, Kvide orderolkata - 700 005 .Vide order no 12/date 03/07/2018 5. Sri Subrota Mitra Block- 1A, 204, Salt Lake City, Kolkata -700 094. 6. Sri Somnath Mitra 32/F, Joy Mitra Street, Kolkata - 700 005. 7. Sri Pradip Kr. Mitra 39, Hara Kr. Tagore Strand, Baranagore, Kolkata - 700 036. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Ms. Tanusree Dhar, Advocate For the Opp. Party: Mr. D. B. Chowdhury,Enakshi Das, Advocate Mr. D. B. Chowdhury, Advocate Ms. Enakshi Das, Advocate Ms. Ananya Chatterjee, Advocate Mr. D. Nandi, Mr. Manoj Kumar Bhattacharya, Advocate Dated : 02 Jan 2020 Final Order / Judgement PER: 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 behest of an 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 25.04.2014 they had entered into an agreement with the Opposite Party No. 1 Company to purchase of a self-contained flat measuring about 720 sq. ft. super built up area being flat Nos. 8A and 8B on the 2nd floor with one car parking space measuring about 120 sq. ft. on the ground floor along with all the easement attached to the plot as per the sanctioned plan of the municipality in a building 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. 20,00,000/- for the flat and Rs. 4,50,000/- for one car parking spaces and extra balcony totalling to Rs. 24,50,000/-. The complainants have stated that they have paid Rs. 10,15,000/- 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 from the date of execution of agreement 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 space 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 handover the flat in question and to register the flats in favour of the complainants through the appropriate authority; (b) to direct the Opposite Parties to refund the sum of Rs. 10,15,000/- along with interest thereon; (c) to pay a sum of Rs. 20,00,000/- as compensation for harassment and mental agony etc. The Opposite Party No. 2 by filing a written version has stated that the complainants were defaulted in making payments and as such being defaulter they are not entitled to any relief.
The Opposite Party No. 4 (one of the landowners) by filing a written version has admitted the existence of agreement between the complainants and OP No. 1 company and payment of Rs. 10,15,000/- by the complainants but stated that it is fault on the part of developer to complete the transaction. He has further submitted that the complaint may be dismissed against them as they are not necessary party.
The Opposite Party No. 6 (another landowner) by filing a separate written version has stated that the complaint is devoid of any merit against him and as such the complaint should be dismissed.
In support of their case, complainant No. 1 has tendered evidence through affidavit on behalf of himself and also on behalf of complainant No. 2. The Opposite Parties have not filed any questionnaire to test the veracity of statement of complainants. At the time of final hearing, though OP Nos. 1 and 2 were represented through the Ld. Advocate, however, no brief notes of argument has been filed. At the time of final hearing on behalf of complainants brief notes of argument has been filed.
On perusal of pleadings, evidence led by the complainants coupled with the documents annexed therewith, it would reveal that on 25.04.2014 the complainants entered into an agreement with OP No. 1 Company to purchase of a self-contained flat measuring about 720 sq. ft. super built up area being flat Nos. 8A and 8B on the 2nd floor with one car parking space measuring about 120 sq. ft. on the ground floor along with all the easement attached to the plot as per the sanctioned plan of the municipality in a building 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. 20,00,000/- for the flat and Rs. 4,50,000/- for one car parking spaces and extra balcony totalling to Rs. 24,50,000/-.
The overwhelming evidence on record further goes to show that the complainants have already paid Rs. 10,15,000/- as part 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 9 of the agreement for sale) appears to be relevant which runs as follows:
"(b) subject to Force Majeure, within 15th April, 2015 form the 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 30 (thirty) 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), .............."
Admittedly, the OP No. 1 company has failed to advance any Force Majeure circumstances. The Force Majeure circumstances has been mentioned in Article- XI of the Agreement for Sale which reproduces below:
"(a) The OWNER/DEVELOPER shall not be regarded in breach of any of the terms and conditions herein contained and on the part of the OWNER/DEVELOPER to be performed and observed if it is prevented by any of the conditions herein below:
i). Fire.
ii). Natural Calamity.
iii). Tempest.
iv). Labour unrest.
v). Any prohibitory order from the Courts, Baranagar Municipality and other authorities,
vi). Any local problems/disturbances
vii). Any other unavoidable circumstances beyond the control of the OWNER/DEVELOPER."
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 15.04.2015.
It is well settled that after making payment of a bulk consideration amount, a purchaser cannot wait indefinitely for having a roof over 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.
During final hearing of the case, Mr. D.B Choudhuri, Ld. Advocate for the Opposite Party Nos. 1 and 2 have submitted that OP No. 1 company being a Private Limited Company, the Directors of the Company will be responsible to fulfil the terms and obligations of the agreement for sale dated 25.04.2014 and if some more time is given the developer will be able to complete the construction and handover the subject flat to the buyer.
On evaluation of materials on record it is quite apparent 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 their promise in handing over the flat and car parking space as par commitment 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 our view, considering the facts and circumstances, 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. 10,15,000/- 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 disposed of with the following directions:
(i) The Opposite Parties are directed to handover possession and to execute and register the deed of conveyance in favour of the complainants in respect of the property as mentioned in the schedule of the Petition of Complaint in terms of Agreement for Sale dated 25.04.2014 within 60 days from date on receipt of balance consideration amount, failing which, the Opposite Party No. 1 Company is directed to refund the amount of Rs. 10,15,000/- 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 Parties are directed to make payment of a sum of Rs. 10,000/- as costs of litigation in favour of complainants;
(iii) The above payments should be paid within 90 days in terms of the above order.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER