State Consumer Disputes Redressal Commission
Sri Satyajit Bhattacharya vs Sri Sumal Mazumder on 28 June, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Interlocutory Application No. IA/181/2017 ( Date of Filing : 31 Oct 2017 ) In Complaint Case No. CC/156/2015 1. Sri Satyajit Bhattacharya S/o Late Sunil Kr. Bhattacharya, Vill.- Mazilpur, Bhattacharyapara, P.O. Joynagar-Mazilpur, P.S. Joynagar, Dist. South 24 Pgs. ...........Appellant(s) Versus 1. Sri Sumal Mazumder S/o late Atul Chandra Mazumder, 8/4, North Fullbagan, P.O. - Baghajatin, P.S.- Jadavpur, now Patuli, Kolkata - 700 086. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Ayan Pal, Advocate For the Respondent: Mr. Supratick Syamal, Mr. Gourab Ghosh, Advocate Dated : 28 Jun 2018 Final Order / Judgement
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of an intending purchaser against the landowner (opposite party no. 1) and the developer/builder (opposite party no. 2) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
Succinctly put, the complainant's case is that on 11.10.2013 the complainant had entered into an agreement with the opposite parties to purchase of a self-contained flat measuring about 625 sq. ft. super built-up area on the 2nd Floor being Flat No. B/1 at Premises No. 343, Purba Fulbagan, Fulbagan Road, P.S.- Jadavpur (Now Patuli), Kolkata - 700086, Dist. - South 24 Parganas within the local limits of Kolkata Municipal Corporation (K.M.C.) at a total consideration of Rs. 21,50,000/-. The complainant has stated that he has already paid Rs. 13,00,000/- as part consideration amount towards the said total consideration of Rs. 21,50,000/-. In the agreement it was stipulated that the opposite parties will execute and register the Sale Deed in favour of the complainant within three months from the date of execution of agreement subject to payment of balance consideration amount. The complainant has alleged that when he was making preparation for making payment of the sum, it came to his notice that a Demolition Notice has been served upon the developer for causing deviation of the sanctioned building plan. After knowing the same the complainant enquired about the same and came to know that the developer did not construct the building in accordance with the sanctioned building plan and as such could not obtain the Completion Certificate from the K.M.C. In this regard, the requests and persuasions of complainant to supply him sanctioned copy of external drainage plan, Conversion Certificate along with Completion Certificate went in vain. Hence, the complainant approached this Commission with prayer for several reliefs, viz.- (a) to direct the opposite parties to hand over the subject flat in habitable condition with all amenities and facilities including round the clock supply of water, clean sewerage connecting drain with road side including water connection etc.; (b) to direct the opposite parties to obtain Completion Certificate from the K.M.C.; (c) to direct the opposite parties to execute and register the Deed of Conveyance; (d) to pay compensation of Rs. 5,00,000/- on account of harassment and mental agony; (e) to pay punitive damages of Rs. 3,00,000/- for adopting unfair trade practice; (f) to pay litigation cost of Rs. 50,000/- alternatively a direction upon the opposite parties to refund Rs. 30,00,000/- in terms of the above prayer.
The opposite party no.1 /landowner did not contest.
The opposite party no. 2/developer by filing a written version disputed the claim by asserting that the complainant defaulted in payment of the balance consideration amount. The contesting opposite party has also stated that the complainant with a malafide intention made an application to the Authorised Officer under the West Bengal Buiding (Regulation of Promotion of Construction and Transfer by Promoter) Act, 1993 (in short, 'Promoters Act'). In terms of the said complaint the Authorised Officer under the said Act disposed of the complaint directing the opposite party to obtain Completion Certificate from the Kolkata Municipal Corporation Authorities and execute the Deed of Conveyance in favour of the complainant on receipt of full consideration money as agreed by and between the parties. According to the contesting opposite party, the complaint should be dismissed.
Both the parties have tendered evidence through affidavits. They have also given reply against the questionnaires set forth by their adversaries. At the time of final hearing a brief notes of argument has been filed on behalf of complainant.
Undisputedly, opposite party no. 1 was the owner in respect of a piece of land measuring about 02 cottahs of land at Premises No. 343, Purba Fulbagan, Fulbagan Road, P.S.- Jadavpur (Now Patuli), Kolkata - 700086, Dist. - South 24 Parganas within the local limits of Kolkata Municipal Corporation. During his title and possession over the same, the opposite party no. 1 with an intention to develop the said property and to raise a multi-storied building containing several flats and shop rooms entered into a Development Agreement with the opposite party no. 2/developer and also executed a registered Power of Attorney in favour of opposite party no. 2 to that effect.
Pursuant to the power and authority conferred upon him, the opposite party no. 2 on behalf of himself as well as on behalf of opposite party no. 1 had entered into an agreement for sale with the complainant to sell a self-contained flat measuring about 625 sq. ft. super built-up area on the 2nd Floor of the said building at a total consideration of Rs. 21,50,000/- on 11.10.2013. It is not in dispute that out of the said total consideration amount of Rs. 21,50,000/- complainant has already paid Rs. 13,00,000/- as part consideration amount towards the said total consideration amount in favour of opposite party no. 2. In the agreement it was agreed that the balance amount of Rs. 8,50,000/- will be paid by the complainant at the time of execution of Sale Deed and delivery of possession of complete furnished flat through Bank. In the agreement for sale, it was also stipulated that the execution of Sale Deed and delivery of possession will be completed within three months from the date of execution of agreement for sale.
It is trite law that the parties are bound by the terms of agreement. When either of the parties did not pick up any quarrel with the terms and conditions of the agreement, they are certainly bound to follow the terms and conditions contained in the agreement. In a case reported in AIR 1996 SC 2508 (Bharti Knitting Co. - vs. - DHL World Wide Express Courier Division of Airfreight Ltd.) the Hon'ble Supreme Court has observed thus:-
"It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F.Nariman, Ld. 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. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M.N.Krishanmani, 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 it own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract"
Needless to say, when the parties have entered into an agreement with certain terms and conditions, they are bound by such agreement. In other words, when either of the parties did not pick up any quarrel with any of the terms and conditions of the agreement and further put their signatures in the agreement evaluating its pros and cons, the terms and conditions of the agreement are binding upon the parties.
Evidently, opposite party no. 2/developer has failed to keep his promise in handing over the subject flat to the complainant within three months from the date of execution of agreement i.e. within 10.01.2014.
The evidence on record clearly postulates that there was deviation in the sanctioned building plan and as such a demolition proceeding under Section 400 (1) of K.M.C. Act, 1980 was initiated against opposite party no. 2/developer. Ultimately, on payment of charges for regularisation of unauthorised construction amounting to Rs. 1,08,972/- the alternate plan or deviation plan was approved by the Kolkata Municipal Corporation on 04.10.2016 and on that date only a Completion Certificate was issued in respect of the premises in favour of opposite party no. 2 i.e. constituted Attorney of opposite party no. 1. It simply signifies that prior to 04.10.2016 the opposite party no. 2 had no authority to ask the complainant/purchaser to take possession on payment of balance consideration amount because in the agreement it was specifically provided that on the date of delivery of possession and execution of Sale Deed the complainant will pay the balance amount of consideration of Rs. 8,50,000/-.
In this regard, the claim of the opposite party no. 2 to take possession of the flat on payment of balance consideration amount without obtaining Completion Certificate clearly indicates not only deficiency in services but also an unfair trade practice on the part of developer to collect money from the prospective buyers. This act not only construes deficiency in services but also falls under unfair trade practice as defined in Section 2(1)(r) of the Act.
Ld. Advocate for the contesting opposite party has drawn my attention to the order passed by the Authorised Officer in a proceeding under the Promoters Act, 1993. By order dated 24.06.2015 the Authorised Officer under the Promoters Act disposed of the complaint/application of the complainant directing the promoter/opposite party no. 2 to obtain Completion Certificate from the K.M.C. authority and to execute the Deed of Conveyance in favour of the complainant on receipt of full consideration money agreed by and between the parties. I do not find any apparent conflict between the order passed by the Authorised Officer under the Promoters Act or the claim made by the complainant in this consumer complaint. It should be recorded that the order was passed by the Authorised Officer on 24.06.2015 and the complaint before this Commission was lodged on 06.05.2015 i.e. prior to the date of passing of order by the Authorised Officer under the Promoters Act.
Ld. Advocate for the opposite party has drawn my attention to the provisions of Section 12A of the Promoters Act, 1993 and submitted that since Promoters Act is a special Act and the complainant approached before the Authorised Officer under the said special Act, the complaint is not amenable before a Forum constituted under the Act. To fortify his submission, Ld. Advocate for the developer/opposite party no. 2 has placed reliance to two decisions of the Single Bench of Calcutta High Court reported in (1) 2012 (1) CHN (Cal) 272 [Rita Das - vs. - Jayashri Ghosh] and (2) AIR 2014 (Cal) 141 [Smt Bithi Das & Ors. - vs. - Debobrata Majumdar & Ors.].
On the other hand, Ld. Advocate for the complainant has contended that in view of the provision of Section 3 of the Act and taking into consideration of the object behind the legislation of the Act and more particularly when there is no apparent conflict with the order of the Authorised Officer, a consumer complaint is very well maintainable.
For proper understanding of the situation, it would be worthwhile to reproduce the provisions of Section 12A of Promoters Act, 1993 which runs as follows:
"12A (1). No Civil Court shall have any jurisdiction to entertain or decide any question relating to matters arising under any provisions of this Act or the rules made thereunder ..."
Therefore, the question comes up whether a Forum constituted under the Act be termed as 'Court'. The statement of objects and reasons and the scheme of the Act make it quite clear that the main objective is to provide for better protection of the interests of the consumer. To achieve that purpose, a cheaper, easier, expeditious and effective redressal mechanism is provided in the Act, by establishing quasi-judicial Forums at the District, State and National level with wide range of powers vested in them. The rigors of the Indian Evidence Act, 1872 and the Civil Procedure Code are not applicable to the proceedings before these quasi-judicial bodies. Therefore, having due regard to the scheme and purpose sought to be achieved, viz. better protection of interest of the consumers, the provisions of the Act have to be given purposive, broad and positive construction, more so, when Section 3 of the Act provides that remedy under the Act is in addition to and not in derogation of any other provisions of law.
In a decision reported in 2016 (3) CHN (Cal) 464 [Md. Akbar Kamal - Vs. - Tabraiz Alam Siddiqui] the Hon'ble Calcutta High Court after considering the several decisions passed by it earlier in the case of Bithi Das - Vs. - Debabrata Majumdar reported in 2014 (2) ICC 853, the decision in the case of Rita Das - Vs. - Jayashri Ghosh reported in 2012 (3) CLJ 291 and several other decisions of Hon'ble Supreme Court has observed that this Commission do have jurisdiction to entertain the complaint.
In a landmark decision reported in AIR 2003 SC 1043 [State of Karnataka - Vs. - Vishwabarathi House Building Co-op Society & Ors.] the Hon'ble Supreme Court speaking on the jurisdiction of the Consumer Fora held that the provisions of the Act are required to be interpreted as broadly as possible and the Fora under the Act have jurisdiction to entertain a complaint despite the fact that other Fora/Courts would also have jurisdiction to adjudicate upon the lis. The Hon'ble Supreme Court proceeded to observe that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other Forum established under some enactment. The Hon'ble Court had gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.
The avowed object behind the legislation of the Act is to protect the interests of the consumers and in order to achieve the said object, a Forum should not been bogged down by hyper-technicalities. When it is quite apparent that despite commitment the opposite party no. 2/developer could not deliver the subject flat within three months as agreed by him, certainly the opposite party no. 2 was deficient in rendering services.
Therefore, after giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties and on perusal of the materials on record, I have no hesitation to hold that the complainant being a consumer as defined in Section 2(1)(d) of the Act hired the services of opposite parties upon consideration and in the process the complainant has paid a bulk consideration amount as per terms of the agreement but the opposite party no. 2/developer was found deficient in rendering services as per terms of the agreement and thereby deficient within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. So, the complainant is entitled to some reliefs.
In my view, an order directing the opposite parties to deliver possession and to execute the Sale Deed within ninety days after receiving the balance consideration amount will meet the ends of justice. The acts and conducts of the opposite party no. 2 has caused serious harassment and mental agony to the complainant and as such the complainant is entitled to compensation which I assess as a simple interest @ 9% p.a. from the committed date of delivery of possession i.e. from 10.01.2014 till the date of obtaining of Completion Certificate i.e. 04.10.2016. Under compelling circumstances, the complainant had to lodge the complaint for which he is also entitled to litigation cost which I quantify at Rs. 10,000/-.
With the above discussion, I dispose of the complaint with the following directions:
The Opposite Party No. 2 is directed to deliver possession in respect of the flat as per terms of the agreement in favour of the Complainant within sixty (60) days from date of receipt of balance consideration amount of Rs. 8,50,000/-;
The Opposite Party Nos. 1 & 2 are jointly and severely directed to execute and register the Deed of Conveyance in favour of the Complainant within thirty (30) days from the date of delivery of possession of the flat in question;
The Opposite Party No. 2 is directed to pay compensation in the form of simple interest thereon @ 9% p.a. over the amount of Rs. 13,00,000/- from the committed date of delivery of possession i.e. from 10.01.2014 till the date of obtaining of Completion Certificate i.e. 04.10.2016;
The Opposite Party No. 2 is directed to pay Rs. 10,000/- as cost of litigation to the Complainant;
The balance amount, if any, payable by the Complainant shall be adjusted by Opposite Party No. 2 out of the compensation payable to him in terms of this order.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER