State Consumer Disputes Redressal Commission
Smt. Sunita Agarwal (Chowdhury) vs M/S. Rahul Construction on 27 September, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/326/2013 1. Smt. Sunita Agarwal (Chowdhury) W/o Sri Gopal Agarwal(Chowdhury), 53/10/3, Bon Behari Bose Road, 4th Floor, Ramkrishnapur, P.S. Shibpur, Dist. Howrah, Pin-711 101. 2. Sri Gopal Agarwal (Chowdhury) S/o Sri Kailash Chandra Agarwal(Chowdhury), 53/10/3, Bon Behari Bose Road, 4th Floor, Ramkrishnapur, P.S. Shibpur, Dist. Howrah, Pin-711 101. ...........Complainant(s) Versus 1. M/s. Rahul Construction 152,Ramkrishnapur Lane, P.S. Shibpur, Dist. Howrah, Pin-711 101 & presently 6B/2, Tulsi Mitra Garden Lane, P.S. Shibpur, Howrah-711 102. 2. Sri Swapan Kumar Sarkar S/o Late Sunil Kumar Sarkar, C/o Amiya Ghosh, presently at 21/2,Baje Shibpur 2nd Bye Lane, P.S. Shibpur, Howrah - 711 102. 3. Smt. Mandira Sarkar Widow of Late Sujit Sarkar, C/o Manobindo Narayan Chakraborty, presently at 6/2/3, Koipukur Lane, P.S. Shibpur, Howrah - 711 102. 4. Sri Ajit Kumar Das S/o Late Nepal Chandra Das, C/o Laltu Mukherjee, presently at 66/7,Atindra Mukherjee Lane, P.S. Shibpur, Howrah - 711 102. 5. Smt. Sumita Ghosh W/o Sri Sailendra Ghosh, presently at 158-B, Acharya Prafulla Chandra Road, Kolkata-700 004. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Complainant: Ms.Puja Beriwal , Advocate For the Opp. Party: Mr. D. Das, Advocate Dated : 27 Sep 2016 Final Order / Judgement Date of filing : 24.12.2013 Date of final hearing : 20.09.2016 PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint Under Section 17 of the Consumer Protection Act, 1986 ( hereinafter referred to as "the Act ") is at the instance of intending purchasers against the developer (OP No.1) and the landowner (OP Nos. 2 to 5 ) on the allegation of deficiency in services on the part of them in providing a flat measuring about 1084 sq. feet on the 1st floor at holding no. 31/9, Shibtala Lane, P.S. Shibpur, District - Howrah which is more fully described in the schedules of the petition of complaint.
Succinctly put, complainants' case is that on 02.09.2012 they had entered into an agreement with OP No.1/ developer to purchase the subject flat at a consideration of Rs. 20,32,500/-. On diverse dates, they have paid Rs. 16,18,000/- to the OP no.1. In the agreement, it was stipulated that within one year from date of execution of agreement for sale the developer will handover the flat in question after receive of full consideration amount but the developer has failed to complete the building within the time frame. Thereafter, by a legal notice, the complainants cancelled the agreement as per terms and condition of Clause - 5 of the said agreement for sale and asked the developer to refund the amount but it remain unattended. Hence, complainants have lodged this complaint with prayer for certain reliefs, viz - (a) An order directing the OP No.1 to refund Rs.16,18,000/- ; (b) Rs. 3,50,000/ - as compensation for harassment and mental agony and (c) Rs. 25,000/- for litigation cost.
The Opposite Party No.1 by filing a Written Version has stated that this Commission lacks jurisdiction in view of the provision of Section 12A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 and as the agreement for sale was executed in a non-judicial stamp paper of Rs. 10/-, the complaint is not maintainable in this Commission. The OP No.1 has stated that being developer he has no negligence or deficiency but due to some labour problem the said building including the subject flat could not be completed in time. So, the complaint should be dismissed.
On the basis of contention of parties, the following points are framed for adjudication:-
(1) Are the complainants 'Consumer' as defined in Section 2(1) (d) of the Act?
(2) Is the complaint barred by the provisions 12 of the Promoters Act, 1993?
(3) Is the complaint bad for non-payment of adequate stamp duty?
(4) Is there any deficiency in services on the part of Opposite Parties?
5) Are the complainants entitled to get the relief, as prayed for?
In support of their case, complainant no.2 Shri Gopal Agarwal ( Chowdhury ) has tendered evidence on affidavit against which questionnaire has been filed by OP No.1 to which reply has been given by the complainants. On the other hand, on behalf of Opposite Party No.1, evidence on affidavit has been filed against which questionnaire was set forth by the complainants to which reply was given by the OP No.1. Besides oral evidence, both the parties have adduced some documentary evidence and also brief notes of arguments at the time of final hearing of the case.
On the basis of the material indicated hereinabove, we shall proceed to discuss how far the complainants have been able to substantiate their case.
DECISION Point No. 1 : From the pleading of the parties, it has come to surface that Opposite Party Nos. 2 to 5 are the owners in respect of 4 cottahs, 10 chittacks of land lying and situated at Holding No. 31/9, Shibtala Lane, P.S. Shibpur, District - Howrah. They had entered into a development agreement with the OP No.1 to construct a G + 3 storied building over the said property and on 26.02.2010 they have also executed a General Power of Attorney authorising OP No.1 to carry on construction work and to execute agreement for sale. Being emboldened with the same, on 02.09.2012, the OP No.1 for self and on behalf of the owners has entered into an agreement with the complainants to sale a flat measuring about 1084 sq. feet on the 1st floor of the property at a consideration of Rs.20,32,500/-. It is also not in dispute that the OP No.1 has received a sum of Rs. 16,18,000/- as part consideration amount on diverse dates. It means and indicates that in accordance with the provisions of Section 2(1)(d) of the Act, complainants must be regarded as 'consumer' .
Therefore, this point is decided in the affirmative and disposed of accordingly.
Point No. 2 : The OP No.1 raised a point as to jurisdiction of this Commission in view of Section 12A of the Promoters Act, 1993. In this regard, it would be worthwhile to refer a decision of National Consumer Commission dated 07.10.2005 in RP/2540/2004 ( Basudeb Banerjee & Anr. - Vs. Ranindra Kumar Dutta & Anr. ).Referring some decisions of the said Commission it has been held that Fora under Consumer Protection Act are not the Civil Courts though they have trappings of Court. Bare perusal of Sub-Section 12A (i) of the Promoters Act, 1993 would show that it creates bar on jurisdiction of Civil Court and not the Consumer Fora.
Relying upon the above, we decide and dispose this point in favour of the Complainants.
Point No.3 : Ld. Advocate appearing for the Opposite Party No.1 / Developer has submitted that the agreement for sale which is the foundation of this complaint was not properly stamped. The agreement for sale was executed in a non-judicial stamp paper valued at Rs.10/- and as such the said document should be impounded and unless ad-valorem court fees are paid, no effective order can be passed. On the other hand, Ld. Advocate for the complainants placing reliance to a decision of Hon'ble National Consumer Commission in RP/3956/2008 ( Sanjay Kumar Gupta - vs. - Kebal Kishan Barma & Anr.) has submitted that a consumer proceedings should not be dismissed on hyper-technical ground.
In paragraph 10 of the referred decision it has been held that while construing the provisions of the Act, a Consumer Forum is expected to adopt a constructive approach and should not get bogged down by hyper technicalities or procedure. In view of the said observation, the argument advanced by OP No.1 on this point has no leg to stand upon.
Point No.4 : Needless to say, the parties are bound by the agreements. As per terms of the agreement for sale dated 02.09.2012 the OP No.1/developer was under obligation to handover the subject flat within 12 months from the date of agreement. It is not in dispute that the complainants have paid more than 80% of the total consideration amount but the developer could not complete the construction within the time frame. In Clause - (5) of the agreement it was specifically agreed - "If the developer fails to comply with the above terms, the purchasers will get entire paid amount along with bank interest over the amount paid from the developer and in that case this Agreement for Sale will treat as void".
The facts and circumstances of case clearly indicate deficiency in services on the part of the OP No.1/developer.
Accordingly, this point is also decided and disposed of in favour of the complainants.
Point No. 5 : On evaluation of materials on record and in view of our foregoing discussion in point Nos. 1 to 4 we have no hesitation to hold that the complainants are entitled to refund of Rs. 16,18,000/- along with an interest thereon @9% p.a. from the date of payment of the same till its full realisation. The complainants have suffered much due to uncertainties to have a roof over their head and ultimately their hopes and aspirations have been shattered and as such for such long standing anxiety faced by the complainants for long five years, they must entitled to compensation which we quantify at Rs. 1,00,000/-. The inaction on the part of OP No.1 led the complainants to lodge this complaint and as such the OP No.1 must be saddled with costs which we quantify at Rs.10,000/-.
This point is also disposed of accordingly.
In the result, complainant succeeds in part. It is, accordingly ORDERED That the complaint is allowed on contest against OP No.1 with costs of Rs. 10,000/- and exparte against OP No. 2 to 5 without any order as to costs.
The OP No.1 is directed to refund Rs. 16,18,000/-along with an interest thereon @9% p.a. from the date of payment till its realisation and to pay compensation of Rs. 1,00,000/- to the complainants.
All the above payments must be made within 30 days from date otherwise complainants shall have liberty to get the order executed though this Commission.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER