State Consumer Disputes Redressal Commission
Mrs. Ankita Bandyopadhyay vs Sri Arabindo Samanta on 26 December, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/415/2017 ( Date of Filing : 01 Jun 2017 ) 1. Mrs. Ankita Bandyopadhyay D/o Mr. Biplab Kr. Bandyopadhyay, Flat no.403, Sundaram Apartment, 64B, G.T. Road, Bhadrakali, Hooghly, Pin-712 232. ...........Complainant(s) Versus 1. Sri Arabindo Samanta S/o Lt. Tarini Charan Samanta, rep. by its partner, M/s. Dayal Construction, 8 Benimadhab Ghosh Lane, P.O. Bhadrakali, P.S. Uttarpara, Dist. Hooghly, Pin-712 232. 2. Sri Rabindranath Samanta S/o Lt. Tarini Charan Samanta, rep. by its partner, M/s. Dayal Construction, 8 Benimadhab Ghosh Lane, P.O. Bhadrakali, P.S. Uttarpara, Dist. Hooghly, Pin-712 232. 3. The Chairman, Uttarpara- Kotrung Municipality New G.T. Road, Uttarpara, Hooghly, Pin -712 258. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Mr. Ayan Pal, Ms. Anita Pal, Advocate For the Opp. Party: Mr. Indrajit Bhattacherjee, Advocate Dated : 26 Dec 2019 Final Order / Judgement PER: HON'BLE MR. SAMARESH PRASAD CHOWDHURTY, PRESIDING MEMBER
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of a purchaser against a Construction Firm and its partners on the allegation of deficiency in services on the part of Opposite Parties in a dispute of housing construction.
In a nut shell, Complainant's case is that on 10.09.2013 she entered into an Agreement for Sale with the Opposite Parties to purchase of a self-contained flat measuring about 700 sq. ft. super built up area being Flat No.403 on the 4th floor in a building named 'Sundaram Apartment' lying and situated at Premises No.64, B.G.T. Road, P.S.- Uttarpara, Dist- Hooghly within the local limits of Uttarpara-Kotrung Municipalityat a total consideration of Rs.17,50,000/- @ Rs.2,500/- per sq. ft. On payment of Rs. 18,22,500/-, a Deed of Conveyance was executed by the developer/builder on 19.12.2014 and subsequently possession was also delivered in favour of the complainant. The complainant has alleged that the developer/builder has deviated and violated the sanction plan to earn extra profit by conversion of car parking space in to an office and shop rooms and a portion thereof has been let out to the Bank most illegally. The complainant has also alleged that he has no free access to the premises which had been blocked and restricted by such unauthorised and illegal construction in deviation of the sanctioned plan of the municipality. Hence, the complaint with prayer for several reliefs, viz. - (a) a direction upon the Opposite Parties to remove the hazards of blocked area for free access of ingress and egress; (b) to open the emergency exist of the premises and directed to make the common space for obstructions; (c) to direct to issue Completion Certificate;(d) to direct to refund Service Tax of Rs. 17,000/- ; (e) to direct to pay compensation of Rs. 2,00,000/- for harassment and Rs. 4,00,000/- for mental agony; (f) to direct to pay litigation cost of Rs. 20,000/-.
The Opposite Party Nos. 1 & 2 by filing a written version have stated that there was no deficiency in services on the part of them and as such the complaint should be dismissed.
The Chairman, Uttarpara-Kotrung Municipality, who was arrayed as Opposite Party No.3 has been deleted from the cause title of petition of complaint by order No. 3 dated 17.01.2018 as no privity of contract between the complainant and the said OP exists.
In support of her case, complainant tendered evidence through affidavit. However, OP Nos. 1 & 2 have not filed any questionnaire. But OP Nos. 1 and 2 have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by the complainant. At the time of final hearing, OP Nos. 1 & 2 was also represented through their Ld. Advocate.
The overwhelming evidence on record makes it abundantly clear that on 10.09.2013 the complainant had entered into an Agreement for Sale with M/s. Dayal Construction represented by OP Nos. 1 & 2 to purchase of a self-contained flat measuring about 700 sq. ft. super built up area being Flat No.403 on the 4th floor in a building christened "Sundaram Apartment" lying and situated at Premises No.64, B.G.T. Road, P.S.- Uttarpara, Dist- Hooghly within the local limits of Uttarpara-Kotrung Municipality at a total consideration of Rs.17,50,000/- @ 2500/- per sq. ft. Subsequently, on payment of Rs. 18,22,500/- a Deed of Conveyance was executed by the developer/builder on 19.12.2014 before the Additional District Sub-Registrar, Serampore, Hooghly and possession was delivered in favour of the complainant and the complainant duly accepted the same.
The complainant, after purchase noticed several deficiencies on the part of the developer including construction of 5th floor without any sanction plan from the Municipality. The complainant has tendered evidence through affidavit where he has categorically stated that the OP Nos. 1 and 2 /developer had collected Rs. 17,000/- as service taxes illegally from her. It is not in dispute that the OP Nos. 1 and 2 being developer/builder has failed to obtain Completion Certificate from the local Municipality. In the reply, Sri Arabinda Samanta (OP No.1) has stated that the Service Tax collected has been paid regularly with the appropriate authority of the Government. However, no document is forthcoming to that effect.
Admittedly, the complainants filed affidavit by way of evidence but OP Nos. 1 and 2 did not file questionnaire to test the veracity of statement of complainants. In a decision reported in (2003) 1 SCC 240 (Sarwan Singh vs. State of Punjab), while discussing on the point, in paragraph 9 of the said decision the Hon'ble Supreme Court has observed thus:
"it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted. A decision of the Calcutta High Court lends support to the observation as above. [see in this context A.E.G Caraplet v. A.Y derderan4 (opinion of P.B Mukherjee, J, as he then was).]"
In this regard, it would be profitable to refer the observation made by Justice P.B. Mukharji, j. in paragraph 9 of the said decision reported in AIR 1961 Cal 359 (A.E.G Caraplet Vs. A.Y. Derian). In paragraph 9 of the said decision it has been observed -
"9. the law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses............"
Admittedly, the complainant filed affidavit by way of evidence but the opposite parties did not file questionnaire to contradict the statements of the complainants. In such circumstances, keeping in view the proposition of law, the allegations of the complainants which remained uncontroverted shall prove their case in the absence of any contradiction to such statements.
It would be pertinent to record that some other purchasers filed a writ petition in the Hon'ble High Court being WP No.28937(W) of 2016 against the Municipality, developer and others and by an order dated 03.04.2017 the said writ petition was disposed of. The order passed by the Hon'ble High Court speaks that the Board of Councillors of the Municipality was directed to proceed with the proceeding initiated against the developer and to see that the same comes to an end within 4 weeks from the date of communication of the order. Referring to the same, Ld. Advocate for OP Nos. 1 to 3 has submitted that when the matter is pending for consideration before the Hon'ble High Court against the order of Board of Councillors, the instant proceeding may be stayed.
e do not find any force in such submission because a developer after receipt of entire consideration amount is under obligation - (1) to deliver possession; (2) to execute Sale Deed and (3) to obtain Completion Certificate from the competent authority and to handover an authenticate copy of the same to the purchasers in order to facilitate the purchasers to record their names in the Assessment Register of the competent authority. When from the information given by the Municipality itself, it transpires that the developer/builder by violating the building sanctioned plan constructed the building without the consent and knowledge of the purchaser certainly, the OPs are deficient in rendering services.
On query, Ld. Advocate for OP Nos. 1 & 2 has also failed to explain why they have collected service taxes of Rs.17,000/- and if so collected, whether the amount was paid to the Government to which Ld. Advocate for OP Nos. 1 & 2 could not give any satisfactory reply. Therefore, the OPs/developer should not have collected Rs.17,000/- from the complainant under the head 'service tax'.
So far as prayer (ii) and (iii) are concerned, those are relating to common facilities and in order to obtain relief, prior to filing of the complaint, a permission under Section 12(1)(c) of the Act should have been obtained to initiate a 'class action' coupled with the observation of the Larger Bench of Hon'ble National Commission in a decision reported in I (2017) CPJ 1 [Ambrish Kumar Shukla & 21 Ors. - Vs. - Ferrous Infrastructure Pvt. Ltd.]. Therefore, the complaint is not entitled any relief on those grounds.
On evaluation of materials on record, it transpires that the complainant being 'consumer' as defined in Section 2(1)(d) of the Act hired the services of OP Nos.1 & 2 on consideration and OP Nos.1 & 2 have failed to fulfil their part of obligations in providing Completion Certificate to the complainant and also intentionally collected Rs.17,000/- in the name of service tax and thereby deficient in rendering services towards the complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. In that perspective, complainant is entitled to some reliefs. In our view, a direction upon the OP Nos. 1 & 2 to obtain Completion Certificate from the Municipality and to refund Rs.17,000/- collected by them on the plea of payment of service tax should be refunded. The acts and conducts of the developer has caused tremendous mental agony and harassment to the complainant for which the complainant is entitled to compensation and considering the loss suffered by him, we assess the compensation at Rs.1,00,000/-. Under compelling circumstances, the complainant has to knock the door of a Forum constituted under the Act and therefore, complainant is entitled to litigation cost which we quantify at Rs.10,000/-.
With the above discussion, we dispose of the complaint on contest with the following directions -
The Opposite Party Nos.1 & 2 are jointly and severally directed to obtain Completion Certificate from the Utrtarpara-Kotrung Municipality and to handover an authenticate copy of the same to the complainant within 90 days from date;
The Opposite Party Nos.1 & 2 are jointly and severally directed to refund Rs.17,000/- collected from the complainant as service tax;
The Opposite Party Nos.1 & 2 are directed to pay compensation of Rs.1,00,000/- in favour of the complainant for harassment and mental agony suffered by the complainant;
The Opposite Party Nos.1 & 2 are directed to pay Rs.10,000/- as cost of litigation to the complainant;
The above payments must be paid within 60 days from date in terms of the above order in default, the amount shall carry simple interest @ 9% p.a. from date till its full realisation;
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER