State Consumer Disputes Redressal Commission
Mr. Biswajit Roy vs Sinchi Construction Pvt. Ltd. ... on 12 June, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/200/2013 1. Mr. Biswajit Roy S/o Late Mukul Chandra Roy, S/35, Dakshinayan, P.O. Sodepur, Kolkata - 700 110, Dist. North 24 Pgs. 2. Smt. Shefali Roy W/o Late Mukul Chandra Roy, S/35, Dakshinayan, P.O. Sodepur, Kolkata - 700 110, Dist. North 24 Pgs. ...........Complainant(s) Versus 1. Sinchi Construction Pvt. Ltd. (Devrloper) Regd. office at P-43, Rabindra Sarani, Kolkata - 700 001. 2. Miss Gopa Das Jagtala(N),PO & PS Maheshtala,Kolkata-700141 3. Miss Rajsua Das Jagtala(N),PO & PS Maheshtala,Kolkata-700141 4. Miss Rajsree Das Jagtala(N),PO & PS Maheshtala,Kolkata-700141 5. Miss Rajpriya Das Jagtala(N),PO & PS Maheshtala,Kolkata-700141 ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Barun Prasad Mr. Subrata Mondal, Advocate For the Opp. Party: Mr. Atanu Pal, Advocate Dated : 12 Jun 2017 Final Order / Judgement Date of filing : 23.08.2013 Date of hearing : 05.06.2017 The instant complaint under Section 17 of the Consumer Protection Act, 1986 ( for brevity, "the Act" ) is at the instance of intending purchasers against the developer and land owner 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 OP No.2 being landowner entered into an agreement with OP No.1 on 16.06.2006 and also executed one power of attorney in favour of OP No.1 for developing construction of residential - cum - commercial complex under the name and style as "Sinchi Tower". Accordingly, OP No.1 offered to sale a flat measuring about 1162 sq.ft. being flat no. J on the 6th floor at Municipality Holding 730, Mouza-Panihati, P. S. Khardah, District - North 24 Parganas within the local limits of Panihati Municipality at a total consideration of Rs.25,00,000/-. The complainants paid an amount of Rs.14,00,000/- on 08.06.2011 and on that date OP No.1 issued an allotment letter dated 11.06.2011. However, due to sudden death of father and husband of the complainant Nos. 1 and 2 respectively, the complainants decided not to proceed further and requested the OPs to return the said amount of Rs. 14,00,000/-. The OPs agreed to cancel the booking and refund the deposit amount of Rs. 14,00,000/- after deduction of 10% of the said amount. In this regard, all the requests and persuasions went in vain. Hence, the complainants have come up in this Commission with prayer for refund of deposited amount of Rs. 14,00,000/- after deduction of 2% along with interest @ 12% p.a., compensation of Rs.5,00,000/- and litigation cost of Rs.20,000/-.
The OP Nos. 1and 2 by filing a joint written version have stated that there is no deficiency in services and as such the complaint is not maintainable. According to the OPs, the amount can only be refunded subject to deduction of 10% as per allotment letter.
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, the complainants have tendered evidence on affidavit against which questionnaire was filed by the OPs to which reply was given by the complainants.
Similarly, on behalf of the contesting OPs, Ms. Rajsua Das, OP No.2B/ one of the Landowners has filed evidence on affidavit. She has also given reply to the questionnaire 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 to 3 :
All the three points are taken up together to shorten the discussion and to skip reiteration.
Undisputedly, one Raju Das , since deceased (Predecesor-in-interest of the OP Nos. 2(a) to 2(d) ) was the landowner in respect of a piece of land measuring about 1 bigha , 8 cottahs, 9 chittaks and 20 sq. ft. equivalent to 0.48 decimals of land at Municipal Holding No. 730, Mouza-Panihati, P. S.- Khardah, District - North 24 Parganas within the local limits of Panihati Municipality. During his life time, the said Raju Das entered into a development agreement with OP No.1 on 16.06.2006 for development and construction of a complex under the name and style "Sinchi Tower" and he had also executed one power of attorney in favour of OP No.1 authorising him to sell and /or lease out or transfer the residential flats or commercial units of the said complex.
Admittedly, on 11.06.2011 the complainants paid an amount of Rs.14,00,000/- as an advance to purchase of one flat measuring about 1162 sq.ft. super built up area being No.J on the 6th floor in the complex at a total consideration of Rs. 25,00,000/-. On the date of payment, the OP No.1 issued one allotment letter. However, no formal agreement for sale was executed between the parties. On account of sudden demise of the father and husband of complainant Nos. 1 and 2 respectively, the complainants dropped the idea to purchase the flat and requested the OPs to refund the amount. The OPs agreed to refund subject to deduction of 10% as per allotment letter.
Mr. Barun Prasad, Ld. Advocate for the complainants and Mr. Atanu Pal, Ld. Advocate for the respondents have given emphasise to the allotment letter dated 11.06.2011. The said allotment letter depicts -
"Be noted cancellation charges in case of cancellation of booking shall be given to us at the rate as follows :-
i) If cancelled after booking but before signing of agreement for sale and allotment of the unit : 2% of the flat price ;
ii) If cancelled after allotment and upon completion of ground floor roof : 4% of the flat price ;
iii) If cancelled after completion of 2nd floor roof : 5% of flat price ;
iv) If cancelled after completion of 3rd floor roof and above : 10% of flat price.
It is not in dispute that no agreement for sale was executed. Ld. Advocate for the complainants has submitted when no agreement for sale was executed, only 2% of the flat price may be deducted. Per contra, Ld.Advocate for the OPs has contended that when allotment of the unit has already been made and the construction of the building has been done above 3rd floor, in accordance with the allotment letter 10% of the flat price should be deducted.
Therefore, basing upon the contents of cancellation charges in the allotment letter it is evident that the construction of the allotment letter may be tilted on either side. In such a situation, I have no other alternative but to take help of the land mark decision of the Hon'ble Supreme Court reported in (1994) 1 SCC 243 ( Lucknow Development Authority -vs. - M. K. Gupta ) where it has been observed :
"To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of the interest of consumers. Use of the word 'protection' furnishes key to the minds of makers of the Act. Various definitions and provisions .....".
Keeping in view the avowed object behind the legislation of the Act, I think a deduction of 2% in the facts and circumstances would sub-serve the object of justice. From another angle, if an amount of 2% from Rs.14,00,000/- is deducted, the OPs would not be prejudiced because considering the gradual price rising, they will be able to sale the said flat at a higher price.
In view of the above, all the three points are decided and disposed of accordingly.
In the result, complaint succeed in part. Consequently, the complaint is allowed on contest but without any order as to costs. The OPs are directed to refund Rs.14,00,000/- after deduction of 2% therefrom to the complainants by way of Bank Draft within 60 days from date, otherwise the amount shall carry interest @ 9% p.a. from the date of payment i.e. from 11.06.2011 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