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Judgment
Heard Mr. Sameer Shrivastava, Advocate, for the appellants and Mr. Kunal Chatterjee, Advocate, for the respondent.
Aforementioned appeal has been filed from the order of State Consumer Disputes Redressal Commission, West Bengal, dated 02.02.2017, passed in Complaint Case No.199 of 2012, allowing the complaint and directing the appellants, jointly and severally to execute the sale deed in respect of the property mentioned in 5 th schedule (Part-I) of the agreement for sale dated 29.03.2010 between the parties, within one month on receipt of balance consideration of Rs.325000/- and award of compensation of Rs.one lac and ligation cost of Rs.10000/-.
Mrs. Bandana Chatterjee (the respondent) filed Complaint Case No.199 of 2012, for directing M/s. Shyama Enclave Pvt. Ltd. and another (the appellants) (i) to deliver possession of Flat No. SSHS/8, on third floor and a car parking space on the western side of the ground floor of “Shyama Shiva Apartment” at 2, K.D. Mukherjee Road, Police Station Parnasree, Kolkata-700060, (ii) to refund Rs.540000/-, illegally extorted from her (iii) to pay Rs.2110000/-as the compensation for delay in construction and delivery of possession of the said flat and car parking space,(iv) to pay cost of litigation and (v) any other relief which may be deemed fit and proper, in the facts and circumstances of the case.
The complainant stated that opposite party-1 (for short the builder) was a company engaged in the business of development and construction of residential and commercial building and selling its unit to the prospective buyers and opposite party-2 was its director. The builder launched a project of group housing in the name of “Shyama Shiva Apartment” at 2, K.D. Mukherjee Road, Police Station Parnasree, Kolkata-700060. Dr. Jayant Chatterjee (the husband of the complainant) booked a 4BR flat in the name of the complainant on 19.03.2010 in “Shyama Shiva Apartment” and deposited Rs.50000/- in cash with the builder. The builder issued allotment letter dated 29.03.2010 and executed an agreement for sale dated 29.03.2010 of the Flat No. SSHS/8 (built up area 1550 sq.ft.), on third floor and a covered car parking space on the western side of the ground floor of “Shyama Shiva Apartment”, for total sale consideration of Rs.1860000/-. Total sale consideration was payable in five instalments, i.e. Rs.100000/- on or before agreement for sale and remaining in four instalments of Rs.440000/-, by 30.04.2010, 31.05.2010, 30.06.2010 and by 31.07.2010 or till delivery of possession, which ever was earlier. They promised to give possession of the flat and covered car parking space, complete in all respect within 12 months of the agreement. The husband of the complainant paid Rs.100000/-, vide cheque Nos.888571 and 888572 and Rs.160000/- in cash on 29.03.2010, for which, the builder issued three separate receipts on their printed receipt. The husband of the complainant also paid Rs.850000/- in cash on 29.03.2010, for which, the builder issued an unstamped receipt on plain paper. Thereafter, the husband of the complainant paid Rs.300000/- in cash on 22.04.2010, Rs.140000/- in cash on 02.06.2010, Rs.200000/- in cash on 09.07.2010 and Rs.100000/- in cash on 10.07.2010, Rs.500000/- on 14.02.2011 through two cheques. The builder issued printed receipts of all these deposits. Dr. Jayant Chatterjee died on 16.04.2011, leaving behind him, the complainant and one minor daughter. The builder, time to time, gave oral assurance for giving possession over the flat within short period. The complainant wrote a letter on 29.11.2011, through DTDC Courier Service, to the builder, requesting him to deliver possession of the flat. But no reply was given, in spite of service of the letter. The complainant filed a complaint to Joint Commissioner of Police, Kolkata, Crime Branch, Anti Cheating Squad on 02.07.2012. Then the complainant received three letters (in one envelop dispatched on 09.07.2012) of the builder on 12.07.2012, i.e. one dated 03.10.2011, demanding Rs.675000/- along with interest, other dated 02.11.2011, cancelling agreement for sale and booking of the flat dated 29.03.2010, due to non-payment of the dues and third dated 06.07.2012, directing the complainant to surrender the original agreement for sale dated 29.03.2010. The complainant wrote a letter to opposite party-2 on 17.07.2012, through registered post A/D, raising her protest to the aforesaid letters and again asking to deliver possession of the flat. Although the letter was served but the builder did not give any reply. Then the complainant gave a legal notice dated 07.12.2012, which was returned as “Not claimed” and received back on 2612.2012. The husband of the complainant was in medical service of West Bengal Government and last posted at Berhampore, Murshidabad, where he had library of rare medical books, journals, furniture etc. After his death, due to lack of space in her quarter, the library was kept at the house of one Mr. Dilip Rakshit, at K.P. Mukherjee Road, Police Station Hardevpur and the books worth Rs.10/- lacs were destroyed by mice, termites and bookworm. On these allegations, the complaint was filed on 31.12.2012.
The builder filed their written reply on 15.07.2014 and stated that as per agreement for sale dated 29.03.2010, total price of the flat was Rs.1860000/- excluding Rs.300000/- as car parking space and Rs.15000/- as the charges for electrification. The builder denied deposit of Rs.850000/-on 29.03.2010 and stated that alleged receipt produced by the complainant in this respect was fabricated paper. Only Rs.1500000/- was paid out of total sale consideration of Rs.2175000/- and balance of Rs.675000/- was due. As the complainant committed default in timely payment of the instalments as fixed in the agreement dated 29.03.2010, as such, she was not entitled for possession of the flat. In spite of demand notice dated 03.10.2011, for Rs.675000/- along with interest, the complainant failed to deposit the amount as such by letter dated 02.11.2011, agreement for sale and booking of the flat dated 29.03.2010, were cancelled. The builder issued letter dated 06.07.2012, directing the complainant to surrender the original agreement for sale dated 29.03.2010. For a total deposit of Rs.15/- lacs, compensation of Rs.2650000/- was claimed, which is vexatious as such the complaint was liable to be dismissed with cost under Section-26 of Consumer Protection Act, 1986. The various allegations relating to unfair trade practice were denied. It has been stated that complicated issue of facts were raised as such the complainant be relegated to seek her remedy in Civil Court.
The complainant filed various documents and Affidavit of Evidence of Bandana Chatterjee. The builder filed their documents and Affidavit of Evidence of Tara Chand Gupta. Both the parties filed their written synopsis. State Commission, after hearing the parties, by judgment dated 02.02.2017, held that the builder had admitted agreement for sale, allotment letter dated 29.03.2010 and payment of Rs. 15/- lacs by the complainant. Photostat copy of receipt on plain paper dated 29.03.2010 for Rs.850000/- was disputed. The statement of the complainant in this respect was not reliable. The builder has failed to prove that letters dated 03.10.2011 and 02.11.2011, were dispatched through post office on its dates as such, allegations of the complainant that these letters were ante-dated are correct. The complainant proved payment of Rs.15.50/- lacs. She was entitled for the relief after payment of balance sale consideration of Rs.310000/- and electrification charges of Rs.15000/-. The complainant was also entitled for compensation of Rs.100000/- and Rs.10000/- as cost of the litigation. On these findings, the complaint was allowed for the relief as stated above. Hence this appeal has been filed.
We have considered the arguments of the counsel for the parties and examined the record. The appellants, in their written reply admitted agreement for sale and allotment letter dated 29.03.2010, but took plea that total price of the flat was Rs.1860000/- excluding Rs.300000/- as car parking space and Rs.15000/- as the charges for electrification. Agreement for sale dated 29.03.2010 has been filed along with the appeal. The Sixth Schedule Part-1 of this agreement depicts the total sale consideration as “The total sale consideration money is Rs.1860000/-. The total amount payable by the purchaser to the developer shall be price of infrastructure of the said unit and one covered car parking space in ground floor in western side of the building and undivided proportionate share in the premises and infrastructure of common areas.” As such, the plea of the builder in this respect is not liable to be accepted. The finding of State Commission that sale consideration of the flat in dispute including covered car parking space was Rs.1860000/-does not suffer from any illegality.
The builder disputed deposit of Rs.850000/- on 29.03.2010 and stated that alleged receipt produced by the complainant in this respect was fabricated paper and admitted payment of Rs.1500000/-. The complainant could not produce the original printed receipt of the builder in respect of payment of Rs.850000/- as such State Commission has not believed deposit of Rs.850000/- on 29.03.2010 and this finding has not been challenged by the complainant. The complainant has filed printed receipt for payment of total Rs.15/- lacs, which has been admitted by the appellants. In written submission filed in the appeal, it has been stated that booking amount of Rs.50000/- paid on 19.03.2010 was returned by the appellant but no such plea was taken in written reply nor any evidence has been adduced to prove it. State Commission found that as the builder, in the allotment letter had acknowledged receipt of Rs.50000/- as such payment of Rs.15.50/- lacs was proved. This finding does not suffer from any illegality. In the written submission filed in the appeal, the appellant raised the plea that it was agreed between the parties i.e. appellants and respondent that additional charges for alteration of the flat shall be paid by the respondent to the appellant. In paragraph-3.8, it has been stated that Dr. Jayant Chatterjee, the husband of the complainant had requested to modify the flat internally i.e replace flooring material and high quality electrical fittings and agreed to pay Rs.300000/-, which was paid by him on 14.02.2011, in cash. On his request 4BHK flat was converted into 3BHK flat. The appellants did not raise any such plea in written reply as such, they cannot be permitted to raise this new plea, particularly when they did not adduce any evidence to show that the construction was complete on 14.02.2011.
State Commission has wrongly held that payment schedule has not been provided in the agreement for sale dated 29.03.2010. The Sixth Schedule, Part-II of the agreement for sale provides same payment schedule as provided in the allotment letter dated 29.03.2010, i.e. total sale consideration of Rs.1860000/- was payable in five instalments, i.e. Rs.100000/- on or before agreement for sale and remaining four instalments of Rs.440000/-, by 30.04.2010, 31.05.2010, 30.06.2010 and by 31.07.2010 or till delivery of possession, which ever was earlier. As such entire sale consideration was payable by 31.07.2010. Clause-2.14 of the agreement for sale provide that interest @2% per month would be charged for delayed payment. But, the appellant has not issued any demand notice, demanding the interest on defaulted amount.
The Third Schedule, Part-IV that the unit would be ready for possession within 12 months of this agreement. This 12 months period has completed on 29.03.2011. The complainant paid Rs.15.50/- lacs till 14.02.2011 but the appellant did not offer possession. As such the complainant was entitled for delayed compensation. Supreme Court in Wg. Cdr Arifur Rehaman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 6 SCC 512 , has held delayed compensation in the shape of interest @6% per annum was appropriate, in case possession being given.
Supreme Court in Kolkata West International City Vs. Devasis Rudra, 2019 SCC OnLine SC 438, Poineer Urban Land & Infrastructure Ltd. Vs. Govind Raghvan, (2019) 5 SCC 725 and N.B.C.C. (India) Ltd. Shri Ram Trivedi, (2012) 5 SCC 273, held that the flat purchaser had no option but to sign the dotted line as such, all the terms of the contract would not be final and binding. Prescribing interest @24% per annum on delayed amount is not proper and arbitrary. In view of the fact the complainant was entitled for delayed compensation as such, it would be appropriate that the appellants will charge interest @6% per annum on the balance amount.
ORDER
In view of the aforesaid discussions, the appeal is partly allowed. The order of State Consumer Disputes Redressal Commission, West Bengal, dated 02.02.2017, passed in Consumer Complaint No.199 of 2012, is modified. The appellants shall issue a demand notice to the respondent for balance amount of Rs.310000/- along with interest @6% per annum from 01.08.2010 till the date of issue of notice and stamp and registration charges if any, within one month, giving atleast six weeks’ time to the respondent to deposit that amount. On deposit of the amount, the appellants shall deliver possession of the flat and covered car parking to the respondent in terms of the agreement dated 29.03.2010 forthwith and execute sale deed in her favour.