State Consumer Disputes Redressal Commission
Sudeep Kumar Pathak vs Megacity Apartments Private Limited on 21 June, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/593/2017 ( Date of Filing : 11 Aug 2017 ) 1. Sudeep Kumar Pathak Presently at Tolly Residency, Flat no. 3K8, premises no. 338, N.S.C. Bose Road, P.S. - Netaji Nagar, Kolkata - 700 047. 2. Kanika Pathak Presently at Tolly Residency, Flat no. 3K8, premises no. 338, N.S.C. Bose Road, P.S. - Netaji Nagar, Kolkata - 700 047. ...........Complainant(s) Versus 1. Megacity Apartments Private Limited Regd. office at 70, Lake East 6th Road, Santoshpur, Kolkata - 700 075. 2. Mr. Avijit Naskar, Managing Director, Megacity Apartments Pvt. Ltd. 70, Lake East 6th Road, Santoshpur, Kolkata - 700 075. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Chandrasekhar Sarkar, Abhishek Chakraborty, Advocate For the Opp. Party: Dated : 21 Jun 2018 Final Order / Judgement The instant complaint under Section 17 (inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of a couple/intending purchaser against the developer/builder and its Managing Director on the allegation of deficiency in services on the part of them in a dispute of housing construction.
In a nutshell, complainants' case is that on 01.11.2012 they had entered into an agreement with the opposite parties to purchase of a self-contained flat measuring about 1295 sq. ft. more or less on the 6th Floor being Flat No. DRM060691K lying and situated at Block - Vibhuti, Phase - II together with one covered car parking space on the Ground Floor under the project 'Deeshari Megacity' situated at Holding No. 116, Dwarir Road, South Jagaddal, P.S.- Sonarpur, Kolkata-700151, Dist.- South 24 Parganas within the local limits of Ward No. 24 of Rajpur-Sonarpur Municipality at a total consideration of Rs. 34,55,125/-. The complainants have stated that as per terms of the agreement they have already paid a total sum of Rs. 32,11,713/-. In the agreement it was stipulated that the opposite parties will hand over the possession of the subject flat to the complainants within December, 2015 in a habitable condition. Despite expiry of stipulated period, the opposite parties did not take any steps to hand over the subject flat. In the agreement it was also agreed that opposite parties will pay a sum of Rs. 8,000/- only per month as compensation in case they failed to hand over the subject flat within December, 2015. The complainants submitted that they have been paying Rs. 17,000/- only per month till July, 2016 which has been enhanced to Rs. 17,500/- only per month since August, 2016 till June, 2017 and at present the complainant no. 1 is paying the licence fee of Rs. 17,000/- only per month to his present landlord with effect from July, 2017. The complainants have made several correspondences with the opposite parties and in this regard all their requests and persuasions including demand of amount of compensation of Rs 8,000/- only per month from January, 2016 onwards in terms of the agreement went in vain. Hence, the complainants have approached this Commission with prayer for several reliefs, viz.- (a) a direction that opposite party no. 1 has committed negligence and deficiency of service and unfair trade practice; (b) a direction upon the opposite parties to pay a sum of Rs. 1,12,000/- (Rupees One Lakhs and Twelve Thousand) only as compensation from January, 2016 to February, 2017 in terms of the said Agreement for Sale dated 01.11.2012 and to pay the said compensation at the rate of Rs. 8,000/- (Rupees Eight Thousand) only per month to the complainants in terms of the aforementioned Agreement for Sale dated 01.11.2012 till the actual lawful physical possession of the said Flat morefully described in the schedule below is given to the complainants; (c) a direction upon opposite parties to pay interest on Rs. 32,11,813/- on such rates as this Hon'ble Commission may deem fit and proper; (d) a direction upon the opposite parties to pay a sum of rent and/or licence fees on and from 1st January, 2016 to till the date of handing over lawful possession of the flat booked at 'Deeshari Megacity' Project morefully described in the schedule below to the complainant; (e) a direction upon the opposite parties to complete the building Block - Vibhuti Phase - II and the said flat morefully described in the schedule hereunder within a specified time which this Hon'ble Commission thinks fit and proper; (f) a direction upon the opposite parties to procure Completion Certificate and/or Occupancy Certificate from the appropriate authorities and to handover the physical possession of the said Flat morefully described in the schedule below to the complainants within such stipulated time as may be determined by the Hon'ble Commission; (g) a direction upon the opposite parties to register the said flat morefully described in the schedule hereunder before the appropriate Registry Office within such stipulated time as may be determined by this Hon'ble Commission; (h) a direction upon opposite parties to inform the amount of the 'other cost' with proper calculation in terms with the agreement dated 01.11.2012 instead of quoting arbitrary figure to the complainants; (i) a direction upon the opposite parties to provide a sanctioned copy of the building plan for the building Block - Vibhuti Phase - II in the housing project 'Deeshari Megacity'; (j) a direction upon the opposite parties to pay compensation of Rs. 20,00,000/- (Rupees Twenty Lakhs) only to the complainants for causing mental and physical agony, harassment; (k) a direction to the opposite parties to pay a litigation cost of Rs. 30,000/- (Rupees Thirty Thousand) only.
Despite service of notice upon the opposite parties, they have not appeared to contest.
In support of their case, on behalf of the complainants, Shri Sudeep Kumar Pathak, complainant no. 1 has tendered evidence on affidavit on behalf of himself and his wife i.e. complainant no. 2 At the time of hearing of the case, the complainants have also filed brief notes of argument.
On perusal of contents of petition of complaint, evidence on affidavit filed on behalf of the complainants and the brief notes of argument, it reveals that the opposite party no. 1 i.e. Megacity Apartments Private Limited (M.A.P.L.) is a private limited company had engaged in the business of construction of which opposite party no. 2 is the Managing Director of the said Company. The M.A.P.L. being vendor/developer had entered into an agreement for sale with the complainants on 01.11.2012 to sell a self-contained flat measuring about 1295 sq. ft. more or less on the 6th Floor being Flat No. DRM060691K lying and situated at Block - Vibhuti, Phase - II together with one covered car parking space on the Ground Floor under the project 'Deeshari Megacity' situated at Holding No. 116, Dwarir Road, South Jagaddal, P.S.- Sonarpur, Kolkata-700151, Dist.- South 24 Parganas within the local limits of Ward No. 24 of Rajpur-Gopalpur Municipality at a total consideration of Rs. 34,55,125/-. Schedule - VII (Payment Terms of the Agreement) indicates that the complainants were under obligation to make payment of the amount by instalments linked with construction. As per terms of payments, the complainants were under obligation to pay Rs. 3,45,512/- at the time of delivery of possession. However, the money receipts available with the record indicate that the complainants have already paid Rs. 32,11,713/- leaving only the balance amount of Rs. 2,43,212/- in favour of the developer/builder.
As per terms of the agreement, the developer/builder was under obligation to hand over the possession of the unit to the complainants within December, 2015. Admittedly, the developer/builder could not keep their promise and defaulted in handing over the flat within the time framed. Clause - 3 (inner page-10) of the Agreement provides-
"3. If the M.A.P.L. fails to hand over the said unit under Phase - II of the said project within the stipulated time, the purchasers shall be compensated subject nevertheless to the clause of 'force majeure' as per the chart written hereinbelow. Simultaneously, if the purchasers fail to take official possession of the said unit within due time in that case, the M.A.P.L. also shall be compensated as per the chart written hereinbelow:
Flat Type Compensation per month 1 BHK Rs. 2,500/-
2 BHK Rs. 4,000/-
3 BHK Rs. 6,500/-
4 BHK & above Rs. 8,000/-
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"
Therefore, when the parties have entered into agreement after knowing the pros and cons of the agreement without picking up any quarrel as to terms and conditions of the agreement, the terms and conditions laid down in the agreement for sale are binding upon the parties. Therefore, in view of the above, when the complainants booked a 4 BHK Flat, the M.A.P.L. (developer/builder) cannot absolve its liability to make payment of Rs. 8,000/- per month to the complainants from committed date of delivery of possession i.e. from 01.01.2016 till the date of actual delivery of possession.
Needless to say, as per agreement the opposite parties were duty bound to obtain Completion Certificate from the local authority, to hand over the possession and to execute and register the Sale Deed in favour of the complainants. The complainants were under expectation to get their flat within the time frame and as the opposite parties have failed to fulfil their part of obligation, the complainants have suffered tremendous mental agony and harassment for which they are entitled to compensation and considering the loss suffered by the complainants, particularly, when the complainants have been spending their days in a rented house, I think the complainants are entitled to compensation in the form of simple interest @ 10% p.a. from the committed date of delivery of possession i.e. from 01.01.2016 over the amount of Rs. 32,11,713/- already paid till the date of delivery of possession. Under compelling circumstances, the complainants have to knock the door of this Commission and as such they are 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 Parties are jointly and severally directed to obtain Completion Certificate/Occupancy Certificate from Rajpur-Sonarpur Municipality, to deliver possession and to execute and register the Sale Deed in respect of the property as mentioned in Schedule - I of the Agreement in favour of the complainants within ninety (90) days from date;
The Opposite Parties are directed to pay compensation over the amount of Rs. 32,11,713/- in the form of simple interest @ 10% from the committed date of possession i.e. from 01.01.2016 till the date of delivery of possession;
The Opposite Parties are jointly and severally directed to pay a sum of Rs. 2,32,000/- @ Rs. 8,000/- per month as compensation from January, 2016 to May, 2018 in terms of Agreement for Sale dated 01.11.2012 and shall go on paying compensation month by month from the month of June, 2018 till the delivery of actual physical possession;
The Opposite Party Nos. 1 & 2 are directed to pay Rs. 10,000/- as cost of litigation to the complainants;
The balance amount of Rs. 2,43,212/- payable by the complainants shall be adjusted by the Opposite Parties out of the compensation payable to them in terms of this order.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER