State Consumer Disputes Redressal Commission
Ajay Kumar Mondal vs Bengal Sharchi Housing Development ... on 9 August, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/417/2015 ( Date of Filing : 30 Oct 2015 ) 1. Ajay Kumar Mondal S/o, Khitish Chandra Mondal, C/o, Hashi Ghosh Sinha, D/2B, 2nd Floor, Tridev Garden, Ghoshpara, Kalimandir, Kestopur, Kolkata - 700 102. 2. Mrs. Malashree Ghosh W/o, Ajay Kumar Monadal, C/o, Hashi Ghosh Sinha, D/2B, 2nd Floor, Tridev Garden, Ghoshpara, Kalimandir, Kestopur, Kolkata - 700 102. ...........Complainant(s) Versus 1. Bengal Sharchi Housing Development Ltd. Sharchi Tower, 686, Anandapur, EM Bye Pass, R.B. Connector, Kolkata - 700 107. 2. West Bengal Housing Baord 105, S.N. Banerjee Road, Kolkata - 700 014. 3. Bank Of Baroda HA - 10, Sector - 3, Salt Lake City, Kolkata - 700 097. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Ajay Ray , Advocate For the Opp. Party: Mr. Barun Prasad., Advocate Dated : 09 Aug 2018 Final Order / Judgement 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/builder (opposite party no. 1), who started development in a joint venture with West Bengal Board (opposite party no. 2) and the Bank of Baroda (opposite party no. 3) from where the complainants obtained house building loan on the allegation of deficiency in services on the part of developer/builder in a dispute of housing construction.
Succinctly put, complainants' case is that being attracted by the campaigns of opposite party no. 1/developer at Bidhannagar Milan Mela at Salt Lake in the year 2010, the complainants submitted an application on 15.03.2010 accompanied with application money of Rs. 1,55,593/- to purchase of a flat measuring about 1190 sq. ft. on the 2nd Floor at 'Greenwood Nest', a residential project to be constructed at L.R. and R.S. Dag No. 3085, Khatian No. 1215 at Mouza- Ghurni, Action Area - 1, New Town, Dist.- North 24 Parganas. Accordingly, by an Allotment Letter dated 28.07.2010 the opposite party no. 1/developer duly confirmed the allotment of Apartment no. 2D measuring about 1190 sq. ft on the 2nd Floor at Tower Alpine - 1, Right Wing in the said project along with one car parking space at a total consideration of Rs. 37,45,227/-. The complainants have paid a part consideration amount of Rs. 11,37,024/- towards the said total consideration amount. The complainants have alleged that as per terms of the said letter of allotment, the opposite party no. 1/developer was under obligation to hand over the flat within the stipulated period of thirty months. However, the opposite party no. 1 has not yet taken any steps to complete the housing project. On 04.07.2015 the complainants recorded their strong objection due to inaction on the part of opposite party no. 1 and demanded a well finished complete flat together with car parking space without any further delay. However, on 13.07.2015 the opposite party no. 1 issued a letter narrating their difficulties for completion of the said housing project by mentioning that the permission plan of the project has not yet been sanctioned and as the number of court cases relating to the project area are pending before different courts of law and offered the customers of flats three options - (i) to accept an upcoming project at Baruipur, or (ii) alternatively to get refund of the amount paid along with interest to be calculated @ 12% p.a. or at the proposed rate prescribed by State Bank of India for those fixed deposit customers, whichever is higher, or (iii) to wait till completion of the project. Since, opposite party no. 1 kept silence and have not taken any positive action for completion or transfer of the flat in favour of the complainants, the complainants served a legal notice dated 27.08.2015 upon the opposite party no. 1 demanding possession and conveyance of well finished residential flat and also for adequate compensation. The complainants have alleged that opposite party no. 1/developer in collusion with opposite party no. 2 and 3 have purportedly received substantial part of the purchase consideration on the plea of necessary construction work and thereby deficient in rendering services. Hence, the complainants have approached this Commission with prayer for several reliefs, viz.- (a) an appropriate order for lawful transfer of well finished complete flat together with a car parking space in the same project area as allotted to the complainants; (b) adequate monetary compensation, in addition to part amounting to Rs. 20,00,000/- for the loss suffered and mental agony; (c) interest @ 24% p.a. on the amount paid to the opposite party no. 1 as part consideration amount; (d) cost of proceedings etc. The opposite party nos. 1 & 2, a joint venture company by filing a written version resisted the allegations made by the complainants. The contesting opposite parties have stated that in terms of development agreement dated 03.09.2009 executed by and between opposite party nos. 1 & 2, the opposite party no. 2 appointed opposite party no. 1 as developer for developing the project. The land forms part of the planning area declared by the Government through a Notification dated 27.08.1998 issued under West Bengal Town and Country Planning Act, 1979 and by a subsequent Government order dated 14.09.1999 the West Bengal Housing Infrastructure Development Corporation (HIDCO) was appointed as the planning authority for the said land. HIDCO is the planning authority for the said land, the opposite party no. 1 approached HIDCO on 13.01.2010 for sanction of the building plan for the project. Ultimately, opposite party no. 1 came to know that since the land falls in Jyangra Hatiara no. 2, Gram Panchayat, the proper authority for sanctioning of the building plans for the project is the Panchayat. Accordingly, 14.07.2010 the opposite party no. 1 approached the Panchayat for plan sanction. But unfortunately, neither the HIDCO nor the Panchayat approved the building plans for the project even though many other clearances which are pre-requisite of the sanction of the building plan like airport authority, fire and microwave clearances amongst others have already been obtained by opposite party no. 1. During such period opposite party no. 1 came to know that one person namely Sri Tapan Kumar Mondal claiming himself legal heir of erstwhile owners of the suit land instituted suits being TS no. 318/2010 and TS no. 347/2017 before the Ld. Civil Judge (Senior Division) at Barasat and obtained an interim order of injunction in c/w TS no. 347/2013 directing the defendants including the opposite party no. 1 not to change the nature and character of the land. Being aggrieved, the opposite party no. 1 preferred an appeal being Misc. Appeal no. 129 of 2013 before the Ld. District Forum, North 24 Parganas at Barasat and the said appeal has been transferred in the Court of Ld. Additional District Judge, Fast Track Court at Barasat and due to such proceedings the construction could not be started. Ultimately, the opposite party no. 1 issued a letter to the complainants on 13.07.2015 requesting them to take refund of the amount paid by the customers along with 12% p.a. thereon but the complainants did not reply to the same. The opposite party nos. 1 & 2 have stated that they cannot be held responsible for the delay and therefore, the complainants are not entitled to any relief.
Despite service of notice, opposite party no. 3 Bank has not appeared and as such the complaint was heard ex-parte against opposite party no. 3 Both the contesting parties have tendered evidence through affidavits. They have also given reply against the questionnaires set forth by their adversaries. At the time of final hearing, both the parties have filed brief notes of argument in respect of their respective cases.
Undisputedly, opposite party no. 1 construction firm, who have formed a joint venture company under the name and style of 'Bengal Shrachi Housing Development Limited' had entered into development agreement on 03.09.2009 executed by and between the opposite party nos. 1 & 2 whereby opposite party no. 2 appointed the opposite party no. 1 as the developer for the purpose of development of the project land measuring about 4.45 acres situated at L.R. and R.S. Dag no. 3085, Khatian no. 1215, L.R. Khatian no. 3085 at Mouza- Ghurni, Action Area - 1, New Town, Dist.- North 24 Parganas. Being attracted with the campaigns of opposite party no. 1 at Bidhannagar Milan Mela at Salt Lake in the year 2010, the complainants have applied to purchase of a flat measuring about 1190 sq. ft. on the 2nd Floor at Tower Alpine-1, Right Wing at 'Greenwood Nest' a residential project by paying Rs. 1,55,593/- towards application money. By Allotment Letter dated 28.07.2010 the opposite party company allotted one flat along with car parking space being Apartment no. 2D at Alpine - 1 at a total consideration of the flat and car parking space at Rs. 37,45,227/-. It is not in dispute that the complainants have paid Rs. 11,37,024/- as part consideration amount towards the said total consideration amount.
Admittedly, the construction of the building could not be started within thirty months from the date of Allotment Letter i.e. 28.07.2010. Therefore, the complainants have approached this Commission on the allegation of deficiency in services on the part of developer in providing the subject flat as per terms of the agreement.
For appreciation of the actual state of affirms, it would be pertinent to mention Paragraph 2 of the Allotment Letter which is recorded below:
"2. The allotment of the property shall be governed by the provisions of this Allotment Letter as well as by the provisions of the 'General Terms and Conditions ('GTC')' set out in the Application Form. The provisions of the GTC shall at all times be read as a part and parcel of this Allotment Letter. The words starting in capital letters shall have the meaning respectively assigned to them in the GTC".
In the Allotment Letter it has also been recorded that in case the allottee is agreeable to the allotment of the property as also the terms and conditions including GTC may put his signature and send to opposite party no. 1 within thirty days from the date of Allotment Letter along with allotment money failing which the allotment shall be liable to be cancelled. Therefore, the terms and conditions of GTC are binding upon both the parties.
It is trite law that the parties are bound by the terms of agreement. When either of the parties did not pick up any quarrel with the terms and conditions of the agreement, they are certainly bound to follow the terms and conditions contained in the agreement. In a case reported in AIR 1996 SC 2508 (Bharti Knitting Co. - 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 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"
The fact remains that on 13.07.2015 the opposite party no. 1 has communicated a letter to the complainants informing them that due to delay in pending sanction plan and the law suits including order of injunction passed by a Competent Civil Court and further due to pendency of the dispute before the Hon'ble Land Reforms and Pendency Tribunal, West Bengal there has been delay in starting the construction of the project. Therefore, opposite party no. 1 has decided to offer the following options- (i) residential units at their upcoming project in Baruipur which is 35 kilo meters away from the present project and 30 kilometers from the heart of Calcutta, or (ii) alternatively to refund the money till now paid by the customer together with interest to be calculated @ 12% p.a. or at the prevailing rate prescribed by State Bank of India for its fixed deposit customers, whichever is higher or (iii) wait till completion of the project after disposal of the above referred legal and technical hurdles.
In this regard, it may be pertinent to record that in Clause 22.5 of GTC it has been mentioned-
"22.5 The layout plans of the HIG Complex are tentative subject to approval of the appropriate authorities and all changes, directions and/or conditions imposed by such authorities at any stage, while approving the proposed tentative layout plans, shall be binding on the Allottee and it will not be necessary on the part of the Company to seek consent of the Allottee for the purpose of making any changes in order to comply with such directions, conditions and/or changes and that the layout plans that may be amended and approved from time to time shall supersede the proposed tentative layout plan as given in Presentation/Brochure and shall automatically form a part of this GTC".
In the brief notes of argument, the complainants have mentioned that the opposite party no. 1 already started construction and progress of the work is going on in full swing and within a very short period the project will be completed and as such there is no legal bar to hand over the possession of the flat and the car parking space on their Allotment Letter along with compensation and interest to the complainants. Evidently, on 26.05.2017 the opposite party no. 1 company has received approval of the proposed B+G+12 storied residential building from the office of Rajarhat Panchayat Samiti. Therefore, as per terms of the Allotment Letter coupled with GTC thirty months stipulated period will be reckoned from 26.05.2017 and as such the complainants' cause of action, if any, will be accrued after expiry of thirty months from 26.05.2017 i.e. on 26.11.2020 and till then when the complainants did not exercise their option in response to the letter of the opposite party no. 1 company dated 13.07.2013 about receiving refund of money along with interest thereon @ 12% p.a., it cannot be said that the opposite party nos. 1 & 2 were deficient in rendering services towards the complainants.
Mr. Barun Prasad, Ld. Advocate for the opposite party nos. 1 & 2 drawing my attention to Clause 13 of GTC has submitted that the Company endeavours to complete the construction of the property within thirty months from the date when Company receives duly countersigned Allotment Letter from the Allottee or from the date of the sanction plans, whichever is later, subject to Force Majeure events. In the instant case, it is quite apparent that due to an order of injunction passed by a Competent Civil Court and the order passed by the Land Reforms and Tenancy Tribunal, West Bengal the opposite party no. 1 could not obtain sanction plan thereby resulting delay in starting construction of the project. In that perspective, the decision referred by the Ld. Advocate for opposite party nos. 1 & 2 reported in 2013 (2) CPR 609 (NC) [Anupam Pandey & Ors. - vs. Chhattisgarh Housing Board & Ors.] will squarely apply where it has been held that compulsion due to judicial intervention cannot be regarded as deficiency in services.
After giving due consideration to the submission made by the Ld. Advocates appearing for the respective parties and on perusal of the materials on record, I have no hesitation to hold that the complaint is premature one and as such it is liable to be rejected.
Consequently, the complaint is rejected. Considering the facts and circumstances, the parties do bear their respective costs.
It is made clear that this order will not debar the complainants to lodge complaint on the allegation of deficiency in services on the part of opposite parties, if any, after expiry of the stipulated period i.e. 26.11.2020 [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER