PRESIDENT
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW
DELHI
CONSUMER
CASE NO. 427,430-440 of 2014
Versus
M/s Unitech
LTD (Opposite party –OP)
Para 11. It is an
undisputed proposition of law that ordinarily the parties are bound by the
terms and conditions of the contract voluntarily agreed by them and it is not
for a Consumer Forum or even a Court to revise the said terms. The following view taken by the Hon’ble
Supreme Court in this regard in Bharathi Knitting Company Vs. DHL Worldwide
Express JT 1996 (6) SC 254 is pertinent:
“It is seen that when a person signs a
document which contains certain contractual terms, as rightly pointed out by
Mr. R.F. Nariman, learned 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. It is true, as contended by
Mr. M.N. Krishnamani, 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 its own facts”.
In PUDA Vs. Mrs.
Shabnam Virk II (2006) CPJ 1(SC), it was stated in an advertisement issued by
PUDA that the price quoted therein was purely tentative based on the then cost of
construction and was likely to be revised on the higher side by the time houses
were completed. The respondent before
the Hon’ble Supreme Court challenged the demand of the additional cost raised
by PUDA. The demand however, was upheld
noticing the aforesaid clause in the advertisement.
However,
a term of a contract, in my view will not be final and binding if it is shown
that the consent to the said term was not really voluntary but was given under
a sort of compulsion on account of the person giving consent being left with no
other choice or if the said term amounts to an unfair trade practice. It was submitted by the learned counsel for
the complainants that the term providing for payment of a nominal compensation
such as Rs.5/- per square foot of the super area having become the order of the
day in the contracts designed by big builders, a person seeking to buy an
apartment is left with no option but to sign on the dotted lines since the
rejection of such term by him would mean cancellation of the allotment. He further submitted that a person seeking to
acquire a built up flat instead of purchasing a plot and then raising
construction on it, therefore, is not in a position to protest resist the
inclusion of such a term in the Buyer’s Agreement, and has to rely upon the reputation
of the builder, particularly if he is a big builder such as Unitech Ltd. He also submitted that the format of the
Buyer’s Agreement is never shown to the purchasers at the time of booking the
apartment and if he refuses to sign the Buyer’s Agreement on the format
provided by the builder, not only will he lose the booking, even the booking
amount/earnest money paid by him will be forfeited by the builder. I find
merit in the above referred submissions of the learned counsel. A person who, for one reason or the other,
either cannot or does not want to buy a plot and raise construction of his own,
has to necessarily go in for purchase of the built up flat. It is only natural and logical for him to
look for an apartment in a project being developed by a big builder such as the
opposite party in these complaints.
Since the contracts of all the big builders contain a term for payment
of a specified sum as compensation in the event of default on the part of the builder
in handing over possession of the flat to the buyer and the flat compensation
offered by all big builders is almost a nominal compensation being less than
.25% of the estimated cost of construction per month, the flat buyer is left
with no option but to sign the Buyer’s Agreement in the format provided by the
builder. No sensible person will
volunteer to accept compensation constituting about 2-3% of his investment in
case of delay on the part of the contractor, when he is made to pay 18%
compound interest if there is delay on his part in making payment.
Warm Regards
For FEDERATION
OF RESIDENTS WELFARE ASSOCIATION
KULDEEP KUMAR
KOHLI
PRESIDENT
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