State Consumer Disputes Redressal Commission
Sri Swapnendu Dutta vs M/S. Dasgupta Construction on 14 February, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/187/2013 ( Date of Filing : 08 Aug 2013 ) 1. Sri Swapnendu Dutta S/o Late Amaresh Dutta, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 2. Smt. Baby Dutta W/o Sri Swapnendu Dutta, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 3. Smt. Amal Kumar Dutta 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 4. Sri Rabindra Nath Basu S/o Late Upendra Nath Basu, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 5. Smt. Dali Basu W/o Sri Rabindra Nath Basu, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 6. Smt. Lipika Guha W/o Sri Subrata Guha/ D/o Sri Rabindra Nath Basu, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 7. Smt. Dipika Choudhury W/o Sri Arunava Choudhury/D/o Sri Rabindranath Basu, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 8. Smt. Sulekha Sarkar W/o Sri Narayan Chandra Sarkar, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 9. Sri Narayan Chandra Sarkar S/o Late Anath Bandhu Sarkar, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 10. Sri Prabir Kumar Lahiri S/o Late Birendra Kumar Lahiri, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 11. Sri Prithviraj Lahiri S/o Sri Prabir Kumar Lahiri, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 12. Smt. Panna Devi Balasaria W/o Sri Basant Kumar Balasaria, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 13. Smt. Snehlata Choudhury W/o Sri Arun Choudhury, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 14. Smt. Ajanta Sengupta W/o Sri Rathindra Sengupta, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 15. Sri Rathindra Sengupta S/o Rabindra Mohan Sengupta, 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. 16. Sri Rahul Dutta 349/305A, Netaji Subhas Chandra Bose Road, also known as 8/84A, Netaji Nagar Colony, P.S. Jadavpur, Kolkata - 700 092. ...........Complainant(s) Versus 1. M/s. Dasgupta Construction A proprietorship firm, represented by it's Prop. Sri Diptansu Dasgupta, S/o Probodh Kumar Dasgupta, 9/35, Netaji Nagar, P.S. - Jadavpur, Kolkata - 700 092. 2. Sri Parijat Kumar Dutta S/o Late Jogendra Kumar Dutta, 8/84A, Netaji Nagar, P.S. Jadavpur, Kolkata - 700 092. 3. Sri Sukhamoy Dutta D/o.Late Sukhomoy Dutta, W/o Mr. Malin Chandra Sarmah, E610, Housefed Apartment, Rukminigaon, P.S. Dispur, P.O.Khanapara, Guwahati, Pin-781022, Dist. Kamrup, Assam. 4. Smt. Srabanti Karmakar D/o Late Sukhomoy Dutta,201A,Godabari Cooperative Housing Society,Vasant Nagari, Sector -9,Vasai(East),Dist. Thane,Mumbai-401208 ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Ms. Mousumi Chakraborty, Advocate For the Opp. Party: Binota Roy, Abhijit Majumdar, Advocate Dated : 14 Feb 2019 Final Order / Judgement PER :HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant Complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of some intending purchasers against the developer/builder (Opposite Party No.1) and the land owners (other opposite parties) on the allegation of deficiency in services on the part of opposite parties in a dispute of housing construction.
In a nutshell, Complainant's case is that the predecessor-in- interest of the land owners, viz.- Parijat Kumar Dutta & Sukhomoy Dutta, since deceased were being owners of have attained a piece of land measuring about 04 Cottah 7 Chittaks and 21 Sq. ft. more or less C.S Plot No.290 (P) of Mouza-Roypur, J.L. No.33 under Police Station- Jadavpur, District-South 24 Parganas from Refugee Rehabilitation & Reliefs Directorate, Government of West Bengal on 31.07.2003. Subsequently, the land owners entered into a development agreement with the OP No.1 on 14.03.2005 for the purpose of raising construction of a multi storied building over the said property as per sanctioned building plan and specification of Kolkata Municipal Corporation (KMC) to construct the same at his own cost and expenses. On 20.01.2006 as per memorandum of agreement, the land owners also executed two sets of general power of Attorney in favour of Sri Diptanshu Das Gupta, proprietor of OP No.1 construction firm.
On the strength of memorandum of agreement as well as power of Attorney, OP No.1 entered into a registered agreement for sale on 24.09.2008 with complainant Nos. 1&2 to sell one self-contained flat on the ground floor measuring about 400 Sq. ft. super built up area together with proportionate undivided interest or share of land along with proportionate common rights on all common areas and facilities of the building being premises No.349/305A, Netaji Nagar Colony, Kolkata-700092 under P.S. Jadavpur, (now Netaji Nagar P.S.), District- South 24 Parganas within the local limits of Kolkata Municipal Corporation at a total consideration of Rs.4,00,000/-. On 07.04.2008, the OP NO.1 had entered into an agreement with complainant No.3 to sell one self-contained flat being No.3 on the ground floor measuring about 1054 Sq. ft. super built up area along with one car parking space measuring about 120 Sq. ft. with proportionate undivided all common areas and facilities in the said premises at a total consideration of Rs.10,62,600/-. Similarly, on 07.04.2008, OP No.1 entered into an agreement with complainant Nos. 4 to 7 to sell one self-contained flat being No.6 on the 1st floor measuring about 836 Sq. ft. super built up area at a total consideration of Rs.8,60,000/-. In the same manner, on 24.09.2008, OP No.1 had also entered into an agreement for sale with complainant Nos. 8 & 9 to sell one flat measuring about 1000 Sq. ft. super built up area on the 1st floor along with one car parking space measuring about 120 Sq. ft. (at a total consideration of Rs.11,66,000/-). On 15.02.2017, OP No.1 has entered into another registered agreement for sale with complainant Nos. 10 and 11 to sell a flat measuring about 1200 Sq. ft. super built up area on the 2nd floor with one garage measuring about 100 Sq. ft at consideration of Rs.12,70,000/-. On 30.05.2008, complainant Nos. 12 and 13 entered into an agreement for sale with the OP No.1 to purchase of a self-contained flat measuring about 554 Sq. ft. super built up area on the 3rd floor at a consideration of Rs.4,00,000/-. On 05.08.2011, the OP No.1 had also entered into an agreement for sale with complainant Nos. 14 and 15 to sell a flat measuring about 850 Sq. ft. super built up area on the 3rd floor in the premises in question at a consideration of Rs.10,50,000/-. The complainants have stated that on payment of entire consideration amount they have been residing therewith their family members. On several occasions they requested the OP No.1 for completion of unfinished construction works and as well as revised sanction plan and Completion Certificate as per agreement but it paid no response. The complainants have stated that till date the OPs did not construct and provided caretaker's room, common toilet for darwan/caretaker did not install hand rest on stair case of the building and violated the sanction building plan during construction and did not execute the deed of conveyance in favour of the complainant as per memorandum of agreement duly registered on different dates. The complainants have also stated that on 27.03.2011 jointly wrote a letter to OP No.1 requesting him to complete the unfinished construction works, sanctioned plan, handing over of completion certificate and to execute the deed of conveyance but all the requests went in vein. Hence, the complainants approach this Commission with prayer for several reliefs viz.-a) to direct the OPs to complete the unfinished work, sanctioned plan and the Completion Certificate and to execute and registered the deed of conveyance in favour of complainants, b) to pay compensation of Rs.10,00,000/- due to the mental agony and harassment suffered by complainants and c) to pay litigation cost of Rs.50,000/-etc. The OP No.1/developer has only filed written version. In the written version it has been stated that the complaint is bad in non-joinder of a necessary party as director of R.R & R. Department of Government of West Bengal has not been impleded as a party. The OP No.1 has stated Parijat Kumar Dutta or Sukhomoy Dutta, since deceased, who were the predecessor in interest of the land owners were not absolute owners of the property as the gift was executed by the Government of West Bengal an embargo not to make any kind of transfer within 10 years from 31.07.2003. The OP No.1 has stated that this fact was within the knowledge of complainant and as such the agreements entered between the complainants and OPs are void ab initio and the complainants have no locus standi to enforce the agreement through any court of law and the case should be dismissed. OP No.1 has also stated that the predecessors/complainants being satisfied of the construction of the building had taken the possession of the same and as such their being no deficiency in services on the part of them, complaint should be dismissed.
The complainants have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. At the time of final hearing brief notes of argument has been filed on behalf of complainant Nos. 3 to 15 and also on behalf of OP Nos.3A & 3B.
Undisputedly, the land measuring about 04 Cottah 7 Chittaks and 21 Sq. ft. lying and situated at premises No.349/305A, Netaji Nagar Colony, Kolkata-700092 under P.S. Jadavpur, (now Netaji Nagar P.S.), District- South 24 Parganas within the local limits ward No-98 of Kolkata Municipal Corporation belong to Government of West Bengal. On 31.07.2003, the Refugee and Rehabilitation Department of Government of West Bengal gifted the property to (1) Parijat Kumar Dutta, since deceased and (2) Sukhomoy Dutta, since deceased (who were predecessor in interest of the present land owners). On 14.03.2005, the land owners had entered into a development agreement with OP No.1 (developer) for the purpose of raising construction of a multi storied building over the said property after obtaining sanctioned building plan and specification of the KMC Authority. To fulfil their aim aspirations, the erstwhile land owners also executed two sets of general power of Attorney on 20.01.2006 in favour of Sri Diptanshu Das Gupta, Proprietor of OP No.1 construction firm.
It is also not in dispute that on the strength of the memorandum of development agreement dated 14.03.2005 coupled with the power of Attorney dated 20.01.2016, the OP No.1/developer entered into registered agreement for sale on 24.09.2008 with the complainant Nos. 1&2 to sell one self-contained flat measuring about 400 Sq. ft. super built up area on the 1st floor in the premises in question at a consideration of Rs.4,00,000/-. It also remains undisputed that on 07.04.2008 the OP No.1 had entered into an agreement for sale with complainant No.3 to sell one self-contained flat measuring about 1054 Sq. ft. super built up area on the ground floor and along with one car parking space measuring about 120 Sq. ft. in the same premises at a consideration of Rs.10,62,600/-. On 07.04.2008 the complainant Nos. 4 to 7 have also entered into agreement with the OP No.1 to purchase of a self-contained flat measuring about 836 Sq ft. super built up area on the 1st floor at a consideration of Rs.8,60,000/-. Similarly, on 24.09.2008, the complainant Nos. 8 and 9 entered into an agreement for sale with OP Nos.9 to purchase of a self-contained flat measuring about 1042 sq. ft. super built up area on the 1st floor and along with one car parking space measuring about 120 Sq. ft. in the said premises at a consideration of Rs.11,66,000/-. On 15.02.2007, the complainant Nos. 10 to 11 had entered into an agreement with OP No.1 to purchase of a flat measuring about 120 Sq. ft. Super built up area on the 2nd floor along with one garage measuring about 100 Sq. ft. at a total consideration of Rs.12,70,000/-. Again on 30.05.2008, complainant Nos.12 and 13 entered into an agreement with OP No.1 to purchase of a self-contained flat measuring about 554 Sq. ft. on the 3rd floor at a consideration of Rs.4,00,000/-. On 05.08.2011, complainant Nos. 14 and 15 entered into an agreement with OP No.1 to purchase one flat measuring about 850 Sq. ft. super built up area on the 3rd floor of the subject premises at a consideration of Rs.10,50,000/-.
After getting possession of the respective flats, the complainants have been residing there with their family members thereon. All these are admitted facts.
Now, the complainants raised allegation against the developer/land owner for non execution and registration of deed of conveyance and for non- obtaining of Completion Certificates and for not doing some unfinished works.
It is well settled that after accepting the entire consideration amount it is bounden duty on the part of developer to perform the following obligations, viz.- (a) to deliver possession, (b) to execute the sale deed and (c) to obtain Completion Certificate from the competent authority. Admittedly, the OP No.1 has handed over possession of the flats to the complainants but yet to execute the sale deeds and to obtain Completion Certificate from the competent authority.
The complainants have specifically alleged that the OP No.1 failed to perform the following unfinished work - i) did not construct and provided caretaker's room, ii) did not construct common toilet for darwan/caretaker, iii) did not install hand rest on stair case of the building, iv) did not provide Completion Certificate, v) did not obtain sanction building plan as OP No.1 has violated the sanction building plan during construction and vi) to execute and registered the deed of conveyance in favour of the complainants.
For ascertaining the alleged deficiencies, at the behest of complainants one Engineer Commissioner was appointed. After inspection, the Ld. Engineer Commissioner has submitted his report Mr. K.S. Vatia, the Ld. Engineer Commissioner has given para wise of things of schedule of unfinished. Incomplete works of the buildings, which are as under.
No care-takers room was constructed and provided in the building. It is pertinent to mention here that there is no specific provision for construction of Caretaker room either in sanctioned building plan No.11 dated 10.04.2006 sanctioned by KMC or Agreement for sale dated 24.09.2008 between Sri Swapnendu Dutta and the OP No.1 or other occupants with M/s. Dasgupta Construction. However, there is a mention in the memorandum of Agreement dated 14.03.2005 between the owners of the land and M/s. Dasgupta Construction vide Schedule 'D' i.e. common parts and easement at Sl. No.4 - page 14 which states that occupants shall "use common services like Caretaker's Room, Toilet for servants, Darwans, drainage etc." as shown in the KMC Building Plan.
No common toilets for Darwans, caretaker has been constructed. The details reasons have been mentioned in (i) above.
No hand rest have been installed on staircase of building. In this case hand rest consists of mild steel flat. It is common practice that wooden hand rests are provided over mild steel hand rest in staircase for safety reason. It is pertinent to mention here that there is no mention of hand rest either in sanctioned building plan or agreement for sale between developer and purchaser.
Since no one was present from OP side it is not known whether Completion Certificate of the building from the KMC authority has been obtained.
Since no one was present from OP side it is not known whether OP did revise the sanctioned building plan or not. A copy of sanctioned Building plan was provided by the Ld. Advocate of the complainants. On comparing this sanctioned Building plan with actual construction following major changes/deviation were noticed some of which are as under:
1. General: as per sanction building plan, the building partly III and partly G+3 but as per actual construction the building constructed is partly iv and partly G+3. On the North side where the garage is located, G+3 storied building is to be constructed but additional rooms beyond sanctioned plan has been constructed on each floor, two additional flats have been constructed on 3rd floor beyond sanctioned Building Plan.
The area additional constructed beyond sanctioned plan in horizontal and vertical direction. On a rough estimate approximately additional area constructed beyond sanctioned plan is about 50% more than the sanctioned area contained in sanction building plan."
Mr. Barun Prasad and Mr. Guranga Gupta Roy, Ld. Advocates for the complainants have submitted that the clause in the deed of gift dated 31.07.2003, whereby the Donee shall have no right to alienate or transfer the land in any way or any manner within a period of 10 years from the date without obtaining prior written permission of the Donor will have no effect because in paragraph 4 and 10 of agreement for sale it has been specifically mentioned that the developer shall register the proper deed of conveyance in favour of the purchaser in respect of the flat in question as soon as the stipulated period imposed in the said gift deed is over. In this regard Clause 10 appears to be noteworthy "10. That the free hold title deed /gift on 31st day of July 2003 is embargo i.e a condition in the said deed that the Donee shall have no right to alienate or transfer the said land within a period of 10 (Ten) years from the date of registration of the said deed and the land owners and the developer herein or 3rd respective legal heirs do hereby undertake to register the deed of conveyance in respect of the said flat in favour of the predecessors herein or their legal heirs after termination of the said period.......".
In the premises, the question raised by Op No.1 in respect of embargo not to make any kind of transfer within 10 years from 31.07.2003 will not create any dint to the complainants in getting the deeds registered in their favour. It is undisputed proposition of law that the parties are bound by the terms of the agreement.
Ms. Binota Roy, Ld. Advocate for the OP No.1 has submitted that on account of death of original land owners namely Parijat Kumar Dutta & Sukhomoy Dutta (erstwhile owners) the present land owners are not executing power of Attorney in favour of the developer causing serious problem in executing the sale deed in favour of the complainants and to obtain Completion Certificate from KMC. Needless to say, the power of Attorney executed by the deceased landowners is binding upon all their legal heirs who are parties to the case. Moreover, the dispute between the land owner and the developer cannot be a ground to deprive a consumer from getting their flats within the stipulated period. Whatever may be the dispute between the land owner and the developer that can be settled by an independent proceeding but the right of a consumer cannot be affected in any way. Therefore, keeping in view the decision of Hon'ble Supreme Court in the case of Faqir Chand Gulati vs.- Uppal Agencies Pvt. Ltd. reported in 2008 (10) SCC 345 the submission made by the Ld. Advocate in the OP No.1 has not force. Now, we shall see whether the OP No.1 was bound to provide the facilities as mentioned in the agreement for sale.
On perusal of the materials on record, it would reveal that there is no specific provision for construction of caretaker's room either in sanction building plan or agreement for sale dated 24.09.2008 between OP No.1 and the complainant. However, there is a Clause which states that the occupants "shall use common services like Caretakers room, common toilet for servants darwans drainage etc." as shown in KMC building plan. It reveals that from the report of Ld. Engineer Commissioner that no common toilet for Darwan and caretaker has been constructed.
It may be pertinent to record that as the complainants are fifteen in numbers, they sought a permission under Section 12(1)(c) under the Act and the said application being IA/494/2018 was allowed and the complainants/applicants were directed to make publication of notice in a daily English as well as Bengali newspaper published from Kolkata and in compliance with the same, publication was made to move the complaint in a represented capacity. After the publication of the said notice, none appears to contest. As the complainant having same interest regarding unfinished work of the plan, we find substance behind filing the said application.
Considering the materials on record and after giving due consideration to the submission made by the Ld. Advocate appearing for the respective parties, it appears that when the total value of the flats and compensation cost comes within the jurisdiction of this Commission, this Commission alone have jurisdiction to decide the complaint. The complainants being intending purchasers paid the entire consideration money and on payment of the same, the OP No.1/developer delivered possession of the same but the sale deed in favour of the complainants are yet to be executed. Considering the fact that the OP No.1/developer has failed to fulfil his promise to complete the construction within six months from the date of agreement, there cannot be any doubt that OP No.1 has failed to fulfil his promise and thereby deficiency rendering services then the meaning of Section 2(1)(g) read with Section 2(1)(a) of the Act, therefore, the complainants are entitled to the reliefs. In our view, a direction upon the OPs to execute and registered the deed of conveyance in favour of the complainants after obtaining, Completion Certificate from the Kolkata Municipal Corporation will subserve the object of justice. OP No.1 developer promised to handover the flats within six months from the different dates of agreement. When it transpires that OP No.1 has failed to fulfil his promise in delivering the possession within the stipulated period, he must pay compensation. Considering the facts and circumstances of the case, we think, payment of compensation @ 10% p.a. of total consideration amount in favour of the respective complainant will meet the ends of justice. As the situation compelled the complainant to lodge complaint, they are entitled to litigation costs of Rs.5000/- each to OP Nos. 1&2, OP No.3, OP Nos. 4 to 7, OP Nos.8 & 9, OP Nos. 10 and 11, OP Nos.12 & 13 and OP Nos. 14 and 15.The above payment OP Nos. 1&2, OP No.3, OP Nos. 4 to 7, OP Nos.8 & 9, OP Nos. 10 and 11, OP Nos.12 & 13 and OP Nos. 14 and 15.
"With the above observation, the complaint is allowed on contest against the OPs with the following directions:-
(i) the OPs are jointly and severally directed to execute and register the deed of conveyance in respect of the flats as mentioned in agreement for sale in favour of complainant Nos. 1&2, OP No.3, OP Nos. 4 to 7, OP Nos.8 & 9, OP Nos. 10 and 11, OP Nos.12 & 13 and OP Nos. 14 and 15 within 60 days from date, in default, the complainant may get the deed registered through the machinery of the Commission,
(ii) OP Nos. 1 is directed to pay compensation in the form of interest @ 10% p.a. over the agreed consideration amount in favour of complainant Nos. 1&2, OP No.3, OP Nos. 4 to 7, OP Nos.8 & 9, OP Nos. 10 and 11, OP Nos.12 & 13 and OP Nos. 14 and 15 within 30 days from date, in default, the amount shall carry interest @ 9% p.a. from the date till its realisation,
(iii) The OP No.1 is directed to pay litigation cost to OP Nos. 1&2, OP No.3, OP Nos. 4 to 7, OP Nos.8 & 9, OP Nos. 10 and 11, OP Nos.12 & 13 and OP Nos. 14 and 15 at Rs.5000/- each,
(iv) The above payments must be made within 60 days from the date. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER