State Consumer Disputes Redressal Commission
Smt. Ratna Joardar vs M/S. Lokenath Construction on 14 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/58/2014 1. Smt. Ratna Joardar W/o Sri Mitendra Joardar, 38/37, Ram Krishna Sarani, P.S. Parnasree, Kolkata-700 060. 2. Sri Mitendra Joardar S/o Late Mrigendra Mohan Joardar, 38/37, Ram Krishna Sarani, P.S. Parnasree, Kolkata-700 060. ...........Complainant(s) Versus 1. M/s. Lokenath Construction 46/A, Bama Charan Roy Road, P.S. Behala, Kolkata-700 034. 2. Smt. Soma Dutta 46/A, Bama Charan Roy Road, P.S. Behala, Kolkata-700 034 & presently at 113, Ananda Math Ichapore, Kolkata-700 125. 3. Sri Prodipta Bhattacharjee S/o Lt. Prasanta Bhattacharjee, 9/16, Pashupati Bhattacharjee Rd., P.S. Behala, Kolkata-700 034 & presently P-33, Kamar Para Road, P.S. Behala, Kolkata-700034. 4. Sri Dipankar Roy S/o Dilip Roy, 46/A, Bama Charan Roy Road, P.S. Behala, Kolkata-700 034. 5. Smt. Binapani Mukherjee W/o Lt. Nikhil Ranjan Mukherjee, 128D, Ram Krishna Sarani, P.S. Parnasree, Kolkata-700 060. 6. Sri Subrata Mukherjee S/o Lt. Nikhil Ranjan Mukherjee, 128D, Ram Krishna Sarani, P.S. Parnasree, Kolkata-700 060. 7. Sri Debabrata Mukherjee S/o Lt. Nikhil Ranjan Mukherjee, 128D, Ram Krishna Sarani, P.S. Parnasree, Kolkata-700 060. 8. Smt. Rina Roy W/o Prabir Roy, 128D, Ram Krishna Sarani, P.S. Parnasree, Kolkata-700 060. 9. Sri Sanjay Mukherjee S/o Late Arun Kumar Mukherjee, 36/1, Rajendra Banerjee Road, P.S. Behala, Kolkata -700 034. 10. Sri Sudip Mukherjee S/o Late Arun Kumar Mukherjee, 36/1, Rajendra Banerjee Road, P.S. Behala, Kolkata -700 034. 11. Sri Barun Mukherjee S/o Late Krishna Kali Mukherjee, 36/1, Rajendra Banerjee Road, P.S. Behala, Kolkata -700 034. 12. Sri Samiran Mukherjee S/o Late Sunil Baran Mukherjee, 42/D, Kazi Para Road, P.S. Parnasree, Kolkata - 700 034. 13. Sri Sandipan Mukherjee S/o Late Sunil Baran Mukherjee, 42/D, Kazi Para Road, P.S. Parnasree, Kolkata - 700 034. 14. Smt. Tripti Chakraborty W/o Sri Subhas Chakraborty, Kankinara, P.S. Naihati, Dist. South 24 Pgs. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Complainant: Ms. Chandra Pal Ms. Shila Chattopadhyay, Advocate For the Opp. Party: Mr. S. S. Dhar, Advocate Dated : 14 Feb 2017 Final Order / Judgement Date of filing : 10.03.2014 Date of final hearing : 02.02.2017 PER HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complainant under Section 17 ( wrongly mentioned U/s. 12 ) of the Consumer Protection Act, 1986 ( for brevity, "the Act" ) is at the instance of intending purchasers against the developer and land owners with the allegation of deficiency of service on the part of them in a consumer dispute of housing construction.
Cut short of details, complainants case is that on 24.03.2012 they have entered into an agreement for sale with the OP No.1 /developer to purchase of a self-contained flat measuring about 780 sq.ft. super built up area on the 3rd floor at premises no. 36/1,Rajendra Banerjee Road, P. S. Parnasree, Kolkata - 700 034 at a total consideration of Rs. 17,70,000/- @ 2300/- per sq.ft. At the time of execution of the agreement, complainants have paid Rs. 13,90,000/- out of total consideration amount . In the agreement for sale, it was stipulated that the OP will hand over the possession of the subject flat within 12 months from the date of execution of agreement of sale and also execute Deed of Conveyance. Complainants submit that they are ready and willing to pay the balance consideration of Rs. 3,80,000/- and in this regard they have made several requests and reminders including legal notice on 14.02.2014 but all these requests and persuasions turned a deaf ear. Hence, the complainants have come up in this Commission with the instant complaint with prayer for following reliefs, viz - (a) to direct the OPs to execute and register deed of conveyance in respect of flat in question ; (b) to pay Rs. 1,00,000/- towards the enhancement of stamp duty and registration fees ; (c) to pay Rs. 25,00,000/- as cost of litigation etc. The OP Nos. 1,1A, 1B and 1C/developer by filing a written version did not deny the factum of agreement and payment of part consideration amount as stated by the complainants but it has been stated that a dispute arose between them and the legal heirs of the erstwhile owners who entered into the contract. The contesting OPs have also stated that the owners had taken possession of the flat in question forcefully for which they have initiated a criminal case which is pending for investigation u/s. 156(3) of Criminal Procedure Code.
The OP nos. 2 to 11 /Land owners did not contest.
On the basis of the pleadings aforesaid, the following points are framed for adjudication:-
(1) Are the complainants 'consumer' as defined in Section 2(1)(d)(ii) of the Act ?
(2) Are the OPs deficient in rendering services to the complainants? and (3) Are the complainants entitled to the relief or reliefs, as prayed for ?
In order to substantiate their case, Smt. Ratna Joarder, complaint no.1 has tendered evidence on affidavit on behalf of the complainants, against which questionnaire has been filed by the OPs to which reply was given by the complainants.
Similarly, on behalf of the contesting OPs, OP No.1B Shri Pradipta Bhattacharya has filed evidence on affidavit. The contesting OPs No.2 has also given reply through Shri Dipankar Roy against the questionnaires set forth by the complainants.
Besides oral evidence, both the parties have relied upon documentary evidence too.
On the basis of materials on record, we shall proceed to discuss how far the complainants have been able to prove their case.
DECISION Point No. 1 :
Admittedly, the OP Nos. 2 to 11 became the joint owners in respect of 3 cottas 15 chittaks 4 land lying and situated at premises no.36/1, Rajendra Banerjee Road, P. S. Parnashree, Kolkata - 700 034 within local limits of Ward No. 130 of the Kolkata Municipal Corporation. On 01.07.2009, the land owners had entered into a development agreement with the OP No.1 /developer for raising a multi -storied building thereon. Accordingly, the owners of the property executed and registered the general power of attorney in favour of the developer company on 17.08.2009 and the said general power of attorney was a registered one. As per terms of the agreement, the developer /OP No.1 obtained permission of sanctioned building plan from the Kolkata Municipal Corporation on 19.12.2009.
Admittedly, on 24.03.2012 being emboldened with the power entrusted upon them, the developer had entered into an agreement with the complainants to sell a residential flat measuring 780 sq . ft. on the 3rd floor of the premises at a total consideration of RS. 17,70,000/-. It also remains undisputed that on the date of execution of agreement for sale the complainants have paid Rs. 13,90,000/-out of total consideration amount and a balance amount of Rs. 3,80,000/- is due and payable by them.
Therefore, it is quite apparent that the complainants being intending purchaser hired the services of the OPs in a consumer dispute of housing construction. Accordingly, the complainants must be categorised as 'consumer' as envisaged in Section 2(1)(2)(ii) of the Act.
Accordingly, this point is decided in the affirmative and in favour of the complainants.
Point no. 2 :
As the complainants have established that they are 'consumer' under the scheme of the Act, we shall scrutinise now whether the OPs are deficient in rendering services to the complainants.
The record reveals that on 24.03.2012 the agreement was entered into between the parties. In the agreement, it was stipulated that the developer shall complete the flat and hand over possession of the same within 12 months from the date of execution of agreement for sale. Admittedly, despite received of bulk consideration amount, the OPs did not hand over the schedule property to the complainants within the time frame. The OPs in their written version have stated that due to sudden death one of the land owners, the other land owner are creating pressure upon them for unjustifiable claims beyond the terms and conditions of the agreement taking advantage of sudden demise of their ancestors. The developers have stated that due to intolerable and immoral behaviour they have already lodged several complainants before the Police Station and also filed a complaint case U/s. 156(3) of Cr.PC before the Ld. Addl. Chief Judicial Magistrate at Alipore being Complaint Case No.A.C-1471/2013 on 07.11.2013 which was subsequently treated as FIR by Parnasree P. S. Under Sections 420/406/483/2461/447/504/506/384/385/386/12B/34 of IPC .
On a questionnaire put on behalf of the complainants - whether they are agreed to execute and register the deed of sale in favour of complainants in respect of the subject flat to which it is replied - " Yes, we do agree and interested to execute a proper deed of conveyance in favour of the complainants and we further stated that we are entitled to get residual consideration amount".
However, the developer tried to shift the fault to the land owners, by whom they were engaged for raising construction. Such a blame cannot absolve the liability of the developer. The developer after receipt of lion's share of total consideration amount cannot take any plea whatsoever which offends the terms of the agreement. It is trite law that the parties are bound by the terms of the agreement. In terms of the agreement, the complainants have paid the amount to the developer and if inspite of fulfilment of their obligations by the complainants, they have been deprived from getting their property within the time frame, as such the developer is deficient in rendering services as per provisions of Section 2(1)(g) read with Section 2(1)(o) of the Act.
The Ld. Advocate for the complainants has rightly pointed out a decision of Hon'ble National Consumer Commission reported in 2014 (3) CPR 91 ( Smt. V. Kamala & Ors. -vs. - K. Rajiv,Rep by his G.P.A. Holder K. V. Babji & Ors. ). In the said decision it has been held " an inter - se dispute between the owners and the builder, if any, cannot be permitted to be used as a ploy to wriggle out of obligations under the agreements and leave the buyer in the lurch". In the case of Faqir Chand Gulati - vs. - Uppal Agencies Pvt. Ltd. & Anr. reported in (2008) 10 SCC 345 the Hon'ble Apex Court has held that if there is a breach by the land owner of their obligations, the builder will have to approach a Civil Court as the land owner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages.
However, as we have already noticed that the OPs were deficient in rendering services, the point no.2 is also decided and disposed of in favour of the complaints.
Point no. 3 :
On evaluation of materials on record and in view of our foregoing discussion in Point No. 1 and 2, the complainants are entitled to relief, as prayed for. In our view a direction upon the OPs to execute and register the Deed of Conveyance, a compensation of Rs. 50,000/- on account of harassment and mental agony suffered by the complainants and a litigation cost of Rs. 10,000/- would sub-serve the object of justice.
This point is also disposed of accordingly.
In the result, complaint succeeds in part. It is, accordingly, ORDERED That the petition of complaint is allowed on contest against OP Nos. 1, 1A, 1B and 1C/developer with costs of Rs. 10,000/- and exparte against OP Nos. 2 to 11/land owners without any order as to costs.
The OPs are jointly and severally directed to execute and register the Deed of Conveyance in respect of schedule property as mentioned in the petition of complaint within 30 days from date otherwise complainants shall have liberty to get the same executed through this Commission.
The OP Nos. 1, 1A, 1B and 1C/developers are directed to make payment of Rs.50,000/- towards compensation and Rs. 10,000/- as litigation cost totalling Rs. 60,000/- within 30 days from date, otherwise the amount shall carry an interest @ 9% p.a. from this date till its full realisation.
The Registrar of the Commission is directed to send copies of the judgement free of cost to the parties of the case at once for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER