Full Judgment Dealing With Consumer & Housing

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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

FIRST APPEAL NO. 419 OF 2010

(From the order dated 03-11-2010 in Complaint Case No. 57/2009 of the State Consumer Disputes Redressal Commission, West Bengal)

 

BENGAL DCL HOUSING DEVELOPMENT CO. LTD.
R/o at 24, Park Street,
Kolkata -700016. 

City Office at

Block – DG 4.

2nd Floor, Sector-II,

Salt Lake City,

Kolkata-700091.

………..Appellant/Opposite Party
 Versus
1.   SUBHRA DUTTA &2.   MRS. RUMIA DUTTA
Both Residing at :House 13, Main Street North,

Ahmedi ,Kuwait,

Kuwait
Saudi Arabia 

Permanent Address:

43, Kukundi Drive,

Glenmore Park,

2745, NSW, Australia.

………..Respondents/Complainants

 

BEFORE:

HON’BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER

 

For the Appellant                            :        Mr. Gaurav Mitra, Mr. Sanjoy K.

Ghosh, Ms. Dipali Dwivedi&

Ms. Rupali S. Ghosh, advocates

 

 

For the Respondents            :        Mr. Vishal Arun, advocate

PRONOUNCED ON 9th FEBRUARY, 2015

 

O R D E R

 

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This appeal has been filed by the appellant against the order dated 03-11-2010 passed by the Learned State Commission in Complaint No. 57 of 2009 – Bengal DCL Housing Development Co. Vs. Subhra Dutta & Anr., by which complaint was allowed and opposite party was directed to pay Rs.5 lakhs as compensation.

  1. Brief facts of the case are that complainants/respondents purchased flat for Rs.23,33,960/- from opposite party/appellant but opposite party failed to hand over possession of flat within stipulated period. After taking over possession of flat it was found that it was not fully complete and not fit for residence, as promised amenities were not provided. Alleging deficiency on the part of the opposite party, complainant filed complaint before State Commission.   Opposite party resisted complaint and submitted that as opposite party had to depend upon other approved institutions in the matter of electricity, water connection, etc. delay occurred in handing over possession of flat, which does not fall within purview of deficiency. It was further submitted that complainant intentionally delayed in taking possession of flat and prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint as referred above, against which this appeal has been filed.
  2. Heard learned counsel for the parties and perused record.
  3. Learned counsel for the appellant submitted that inspite of no delay on the part of the appellant in handing over possession and inspite of no prayer for any specific compensation, learned State Commission committed error in allowing compensation of Rs.5 lakhs, hence appeal be allowed and impugned order be set aside. On the other hand learned counsel for the respondent submitted that order passed by learned State Commission is in accordance with law, hence appeal be dismissed.
  4. The core question to be decided in this appeal is whether complainant was entitled to compensation beyond terms and conditions of agreement that too without any specific prayer in the complaint.
  5. As per agreement dated 22-08-2005 possession of flat was to be given by opposite party to the complainant within 36 months i.e. by 22-08-2008. It is also not disputed that possession of flat was given on 24-08-2009 meaning thereby there was delay of one year in handing over possession of flat. Clause 11 of agreement runs as under:–

“11. Compensation for delay in possession

  1. If, Bengal DCL fails to deliver possession of the Apartment to the Allottee(s) within the stipulated time (subject to force majeure as stated herein above), it shall pay compensation to the Allottees for such Apartment effective from the scheduled date of delivery of possession till actual date of handing over of possession of the apartment @ 0.1% of the apartment price per month.”

Perusal of aforesaid Clause reveals that in case of delay in handing over possession, opposite party was liable to pay compensation @ 0.1% of the apartment price per month. Admittedly, price of the flat was Rs.23,33,960/- and 0.1% per month i.e. Rs.2,333.96 per month was payable by opposite party on account of delay in handing over possession. As there was delay of 12 months, complainant was at the most entitled to receive Rs.2,333.96 x 12 = Rs.28,007.52 as compensation from opposite party and learned State Commission has committed error in granting compensation of Rs.5 lakhs to the complainant. Learned counsel for respondent could not place any law before me by which compensation could have awarded beyond terms and conditions of agreement. Both parties are bound by terms and conditions of agreement and complainant was entitled to get compensation for delayed possession as per terms and conditions of agreement.

  1. Para C of prayer clause of complaint runs as under:–

“Builder should pay compensation to complainants towards Liquidated Damage till such time the property is handed over with all facilities necessary to make it habitable with the completion certificate issued by HIDCO or Kolkata Municipal Corporation or such other competent government authority.”

Perusal of aforesaid clause and other prayers in the complaint reveals that complainant has nowhere claimed compensation of Rs.5 lakhs or more but has claimed only compensation for delayed possession of property. Learned counsel for the appellant submitted that without pleading amount of compensation learned State Commission has committed error in allowing compensation of Rs.5 lakhs. Learned counsel for the respondent has drawn my attention towards affidavit of Sovan Dutta filed as attorney of complainant in which he has claimed compensation of Rs.5 lakhs on account of delayed delivery of possession. No doubt in evidence Rs.5 lakhs compensation has been claimed but until and unless amount of compensation is pleaded it could not have been granted beyond the terms and conditions of agreement. In Para 8 of the affidavit it has been mentioned that complainants visited flat by arranging trip from Kuwait to Kolkata and incurred expenditure. This affidavit has been filed by attorney residing in Kolkata itself and complainants have not placed any tickets regarding journey from Kuwait to Kolkata to and fro and in such circumstances it cannot be presumed that any expenditure was incurred by complainants for inspecting flat and taking possession of the flat. In such circumstances, even without pleading amount of compensation and without proof, learned State Commission has committed error in granting compensation of Rs.5 lakhs against Rs.28,007.52 payable by opposite party.

  1. In the light of aforesaid discussion it becomes clear that learned State Commission has committed error in allowing compensation of Rs.5 lakhs and impugned order is liable to be modified.
  2. Consequently, appeal filed by the appellant is partly allowed and impugned order dated 03-11-2010 passed by learned State Commission in Complaint No. 57/2009 Mr. Subhra Dutta & Anr. Vs. Bengal DCL Housing Development Co. Ltd. is modified and amount of compensation of Rs.5 lakhs is substituted by amount of Rs.28,007.52/- and appellant is directed to pay amount of compensation within a month. Rest of the order of State Commission is affirmed.

Sd/-

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