National Consumer Disputes Redressal
Debashis Sinha & Ors vs M/S.R.N.R.Enterprise & Ors on 6 October, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 91 OF 2008 1. DEBASHIS SINHA & ORS Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 2. SRI DEBASISH SINHA S/o Late Arindranath Sinha of Block P,4th Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 3. SRI SOUMENDU ROY S/o Sri Hirendra Nath Roy of Block V, 2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 4. SMT.SUMITA ROY Sri Soumendu Roy of Block V, 2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 5. SRI MAHIMA RANJAN PAUL Late Gopal Chandra Paul of Block N,3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 6. SMT.KRISHNA PAUL W/o Sri Mahima Ranjan Paul of Block N,3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 7. SRI FULGENCE TOPPO S/o Late Carolus Toppo of Block N, 3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA -700008 WEST BENGAL 8. SRI SUDIP CHAKRABORTY S/o Sri Karunananda Chakraborty of Block N, 3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 9. SRI APURBA GHOSH S/o Sri Naresh Ghosh of Block N,1st Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 10. SRI SANJY DEB S/o Sri Joy Kishore Deb of Block 3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 11. SMT.TAM DEB W/o Sri Sanjay Deb of Block S, 3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 12. SRI KANKAN MITRA S/o Late Bibhuti Bhusan Mitra of Block R, 2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 13. SRI SINCHAN SARKAR S/o Late Indu Bhushan Sarkar of Block R, 1st Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 14. DR.DEEPA CHAKRABORTI Dr.Jayanta Chakrabarti of of Block M,2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 15. DR.JAYANTA CHAKRABARTI W/o Sri Salil Baran Chakrabarti of Block M,2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 16. SRI SOUMEN RAY S/o Sri Prafulla Ch.Ray of Block P, 2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 17. SMT.SHANOLI RAY Sri Soumen Ray of Block P,2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 18. SRI SAKTI PADA KAPAT S/o Late Dr.Kartick Ch.Kapat Block N,2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 19. SMTMIRA KAPAT W/o Sri Sakti Pada Kapat Block N, 2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 20. SRI HIMANSU DAS S/o Sri Byasmani Das Block N, 4th Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 21. SRI SATYABATRA SINHA S/o Kula Chandra Sinha of Block O, 1st Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 22. SMT.SHELLY CHOWDHURY W/o Dr.Swagata Chowdhury of Block O, 1st Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 23. DR.SWAGATA CHOWDHURY S/o Sri Samir Chowdhury of Block O, 1st Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 24. SRI PRAKASH BERNARD S/o Late B.Nicholas of Block M, 2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 25. SRI ANIRBAN GHOSH S/o Late Labanyamoy Ghosh of Block W, 1st Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 26. SRI ABHIK CHATTOPADHYAY S/o Sri Ashoke Chatterjee of Block M, 4th Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 27. SMT.VEENA VIDYAWATI BARLA W/o Sri Man Bahal Minz of Block P,3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 28. SRI ASHOK GHOSH S/o Late Sushil Kr.Ghosh of Block P, 3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 29. SMT.RATNA GHOSH W/o Asis Kr.Ghosh of Block P, 1st Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 30. DR.ASIS KR.GHOSH S/o Sri Nilmoni Ghosh o Block P, 1st Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 31. SRI PRANAB KR.MONDAL S/o Late Gopal Ch.Mondal of Block Q,3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 32. SRI LAKSHMI NARAYAN MAJI S/o Sri Niranjan Maji of Block Q, 2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 33. SMT.SHARMILA MAJI Sri Lakshmi Narayan Maji of Block Q 2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 34. DR.SANKAR KR.CHATTERJEE S/o Late Sushil Kr.Chatterjee of Block N, 2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 35. SRI PARTHA SARATHI MAJI S/o Sri Sital Ch.Maji of Block S, 2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 36. SRI ARGHYA SINHA S/o Sri Arup Kr.Sinha of Block R, 1st Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 37. SRI SUMIT KUMAR BASU S/o Sri Samarjit Kumar Bose of Block S, 3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 38. SMT.RUNA BASU W/o Sri Sumit Kumar Basu of Block S, 3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 39. SRI SUBRATA MITRA S/o Sri Manick Lal Mitra of Block V, 1st Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 40. MD.TELAT RAIHAN S/o Abdul Kuddus of Block O, 4th Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 41. SRI INDROYOTI DAS S/o Late Amal Kr.Das of Block R, 3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 42. SRI SUVENDU DEB S/o Late Bejoy Gopal Deb of Block Q, 4th Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA WEST BENGAL 43. SRI SUDARSAN PAUL Sri Manmatha Kr.Paul of Block V, 4th Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 44. SRI MANOJ BHOWMICK S/o Late M.N.Bhowmick of Block Q, 3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 45. SMT.MOUMITA DAS W/o Sri Debasish Das of Block U, 2nd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 46. SRI DEBASISH DAS S/o Sri Ranendranath Das of Block U, 2nd floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 47. SMT.SRIPARNA CHAKRABARTY S/o Sri Dilip Kr.Chakrabarty of Block U, 3rd Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL 48. SRI SASANKA SEKHAR GAYEN S/o Late Kunja Behari Gayen of Block U, 4th Floor Soura Niloy Housing Complex,1 Kailash Ghosh Road KOLKATA-700008 WEST BENGAL ...........Complainant(s) Versus 1. M/S.R.N.R.ENTERPRISE & ORS 9/3,Ekdalia Road KOLKATA-700019 WEST BENGAL 2. MR SANJEEV SARKAR Soura Niloy Housing Complex, 1 Kailash Ghosh Road, Sakher Bazar Sitala Temple Barisha KOLKATA-700008 WEST BENGAL 3. MR BISWANATH PAUL Soura Niloy Housing Complex,1 Kailash Ghosh Road Sakher Bazar Sitala Temple Barisha KOLKATA-700008 WEST BENGAL ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT
FOR THE COMPLAINANT : MR. ARVIND KR. SHARMA, ADVOCATE
MR. ANITEJA SHARMA, ADVOCATE FOR THE OPP. PARTY : MR. SHIV SHANKAR BANERJEE, ADVOCATE
MS. MADHURIMA GHOSH, ADVOCATE
MR. SANKER SARKAR, ADVOCATE
Dated : 06 October 2023 ORDER
This complaint has a chequered factual history that commences with a brochure that is alleged to have been published by the opposite party no.1 M/s. R.N.R. Enterprise represented by its proprietor Mr. Sankar Sarkar. The publication of the said brochure even though denied by the Opposite Party No.1, describes the very same property situate at 1, Kailash Ghosh Road, Kolkata, offering flats for sale in a complex the nomenclature whereof is Soura Niloy Housing Complex. The complainants, 35 in number, are some of those applicants who came to know of the said description of the property through an advertisement dated 10.06.2005 that was published in a local Bengali Newspaper and has been filed on record. A reference to these two documents is necessary as even though the brochure has been denied, the publication of the advertisement in the newspaper could not be contradicted by the opposite party. Both the documents describe a spread out of 240 Cottah plot and the location is also the same. The description of the amenities indicates the following common amenities:
Community Hall;
Generator backup;
Marble Flooring;
Aluminium windows
Beautiful lake
Children Park and playground.
In the brochure the other amenities indicated are, a Landscaped Garden, Multi Gymnasium and 24 hours Water Supply, which are not there in the advertisement. Similarly, the facility of a Lift has been mentioned in the advertisement but not in the brochure.
2. It is with these representations, that the complainants state they accepted the said offer and according to the allegations made in para 6 and para 11, the said facilities that were offered and promised remained undelivered which has ultimately given the cause for filing of the present complaint.
3. From the pleadings on record certain facts need to be stated before proceeding to delineate the essentials of this case. The complaint was contested before this Forum and was ultimately dismissed vide Order dated 21.08.2020. The said Order was assailed in an appeal under Section 23 of Consumer Protection Act, 1986 before the Apex Court, which was allowed on 09.02.2023. The Order of this Commission was set aside with an observation that since the complaint is more than 15 years old, it would be desirable for the NCDRC to decide the same as early as possible, preferably within a year from the date of service of the Order. The said Judgment is also reported as Debashis Sinha Vs. R.N.R. Enterprise 2023 (3) SCC 195.
4. It is in this background that the matter has come up and has been finally heard with the able assistance of Mr. Sharma, learned counsel for the complainants and Mr. Banerjee, learned counsel for the opposite parties.
5. The findings of the Apex Court and its impact will be discussed on the issues which have been raised in this complaint, but before that, the essential facts of the negotiations and the agreements as well as the conveyance deed need to be dealt with.
6. The first document that needs attention is the agreement with the complainants, which was entered into prior to the final conveyance deed and is described as an Agreement For Sale. One of the samples of such agreement has been filed along with the written statement / reply of the opposite party being that of Shri Sudeep Chakraborty, who is the complainant no.5 in the present complaint. The said document dated 19.06.2004 is Annexure-H to the Written Statement. The agreement for sale describes Smt. Shanti Mondal as the owner / vendor whereas the second party M/s. R.N.R. Enterprise through Shri Shankar Sarkar proprietor, (the opposite party no.1 herein) and the third party is the complainant referred to above. The agreement describes the first party as the owner, the second party viz. the opposite party No.2 as the Developer and the third party as the purchaser/vendee. The owner has been described as the sole and absolute owner of a plot of Danga land (Dry land, upland, ascent), measuring about 7 Cottahs, 6 Chittaks 24 sq. ft. with its full description in the First Schedule. The Deed recites that the vendor had borrowed a huge amount from Mr. Shankar Sarkar the opposite party no.1, and on being unable to pay back the amount, offered the transfer of the said property for which a Joint Venture Agreement was entered into on 14.10.2003 giving complete command, control, authority and possession over the said landed property to act as a Developer and to construct multi-storied flats partly residential and partly commercial as per sanctioned plan by the Kolkata Municipal Corporation with full rights to the said Developer to sell the constructions referred to therein and receive all considerations directly and exclusively, including advances for bookings and subsequent payments against total consideration, which would bind the parties to this agreement.
7. The agreement further recites that the owner and the developer in view of the above joint venture developing agreement dated 14.10.2003 agreed to sell and transfer and convey to the purchaser, the complainants herein, the property referred to therein, an illustration as Flat No. 2B in the case of the complainant no.5 with a built-up area of about 1258 sq. ft. in the second floor of Block-N, known Soura Niloy Housing complex situate at plot no.1, premise No.1-U, Kailash Ghosh Road, Kolkata. The said premises was offered with undivided and impartible share in the land proportionate to the area of construction with all rights of occupation, enjoyment etc., including the common spaces and facilities as well as other extra facilities and amenities, for example, generator, water filtration plant, gas pipeline, intercom line, dish antenna, health club, cable line, manual swimming pool etc. for which the purchaser will have to pay an extra sum of Rs.40,000/- and for car parking space a further sum of Rs.1,00,000/- which shall be in addition to the total consideration money of the flats.
8. The said agreement also describes the handing over of the free and vacant possession of the land to the opposite party no.1 described as the Developer who was duly and lawfully authorized by the owner to get the plan sanctioned from the Kolkata Municipal Corporation as per his own architectural designs and drawing plans and undertaking such other action which may be necessary in respect thereof. There are other stipulations in the said agreement with a clear written understanding that the Developer will have the exclusive right to negotiate the property and that the owner will be bound to execute and register the Indenture of Sale whenever the developer instructs him / her. The developer was given full rights for entering into the agreement of sale and any amounts received would belong entirely to the developer.
9. The consideration money of Rs.12,98,000/- was mentioned in the said agreement to sell with an indication that extra sums will have to be paid without development in respect of the extra facilities and Rs.1,00,000/- would be payable for the parking area. The amount for extra facilities which was referred to as Rs.40,000/- in the earlier part of the agreement has been scored out in para 1.11 and the words "without development" have been inserted therein.
10. The agreement further provides Article III for raising constructions by the developer of the Housing Complex namely the opposite party no.1. Article IV while describes the purchasers obligation in Clause No.4.1, indicates that the construction shall be deemed to have been raised, erected and completed by the developer for and on behalf of the purchaser. Other obligations have also been imposed therein on the purchaser. Article V describes the Developer's obligation and undertaking that the entire construction of the multi-storied building shall be carried out by the opposite party No.1 and it shall be completed as per the specifications mentioned in the Fifth Schedule. Clause 5.2 mandates the completion of the project within eighteen months, subject to the force-majeure clause and on receiving the total consideration amount for the premises, the transfer shall be effected by delivering possession and simultaneous execution of a sale deed by the owner jointly with the developer.
11. A payment schedule under Article VI was prescribed read with the Third Schedule to the said document. Article VII describes the time line for completion and possession. The default clauses are contained in Article VII and the restrictions and other obligations are contained in Article IX.
12. The Schedules to the said agreement are appended with the agreement and the Second Schedule describes the right of use and enjoyment of the common spaces and undivided and impartible proportionate share in the land. Additional payments were stipulated in the third Schedule for transmission lines, generators, intercom and other extra facilities mentioned therein. Common amenities and facilities have been described in the Fifth Schedule to the said agreement.
13. As a sequel to the said agreement, the construction work was undertaken by the opposite party no.1 and the multi-storied buildings were constructed against the payments which were made and the possession offered against the payments which were duly made by the complainants. It is also admitted that the respective flats have been transferred through registered conveyance deeds between the years 2006 to 2008. The opposite party however, failed to provide the Completion Certificate as well as the Occupancy documents and it is here where the problems escalated as opposite party failed to provide the common amenities and facilities including a 33 ft. wide concrete road, which was also promised. All the complainants are residing after taking possession and mutations have also been carried out in the year 2009, during the pendency of this complaint. But when the complainants started making enquiries about completion of legal formalities they found that they have been placed in a precarious situation. It was also informed to the complainants that the projection by the opposite party of a playground in the complex belongs to a local club namely 'Jagarani Sangha' and therefore, there was no title over the said land to be conveyed to the complainants. Not only this that a beautiful lake which was promised, was in the shape of a pond, which was a part of another Trust property and the opposite party no.1 had nothing to do with its title.
14. Aggrieved by all this inaction and deficiency in service as well as unfair treatment of the complainants, they engaged Mr. Monojit Dey, who is an approved valuer in the Calcutta High Curt, who surveyed and verified the said amenities on spot including the deficiencies that were existing. The said report was furnished on 11.07.2008 where a comparative statement was made about the amenities.
15. It is at this juncture that one needs to refer to the conveyance deed the recitals whereof have been made the sheet anchor of arguments advanced on behalf of the opposite parties.
16. To understand the continuity of the representation, the negotiations and the arguments that have been advanced more focusing on the denial of the amenities have to be understood also in the light of Conveyance Deed. Since the case of Mr. Sudip Chakraborty--Complainant No.5 and the Agreement for Sale in his property has been taken as an illustration, it would be appropriate to refer to the Deed of Conveyance dated 16.02.2007 executed in favour of Mr. Sudip Chakraborty which has been filed along with the compilation of Conveyance Deeds on record through I.A. No.12934/2016. The said deed refers to the Power of Attorney dated 27.06.2003 executed by Smt. Shanti Mondal, the owner/vendor, the development agreement dated 14.10.2003 referred to as the joint venture development agreement in the Agreement of Sale, the Agreement of Sale dated 19.06.2004 referred to hereinabove and the constructions made under the said development agreement of a G+4 building. With these recitals, the said Conveyance Deed in its opening paragraphs, which is again between the owner Smt. Shanti Mondal, Mr. Sudip Chakraborty, the purchaser and the Opposite Party M/s. RNR Enterprises through Shri Shankar Sarkar recites as under:
"AND WHEREAS after the aforesaid mutation and separation having been effected to the Vendor as owner of the said premises obtained a G+4 sanction building plan of the aforesaid premises from Borough No. 13 of Calcutta Municipal Corporation vide Plan No. 2002130386 dated 18.12.2002.
AND WHEREAS by a General Power of Attorney dated 27th June 2003 the Vendor appointed SRI SANKAR SARKAR son of Late Gopal Chandra Sarkar, the proprietor of R.N.R. Enterprise of 9/3, Ekdalia Road, Kolkata-700019 as her
Constituted Attorney to do all such acts, deeds, and things as mentioned therein due to pre-occupation of the Vendor in other business and the said Power of Attorney was registered in the Office of the District Sub-Registrar IV, at Alipore and recorded in book No. IV, Vol. No. I, pages 832 to 837 being No.00147 for the year 2003 and the said Constituted Attorney accepted the same.
AND WHEREAS by a Development Agreement dated 14th October 2003 the Vendor appointed M/S.R.N.R. Enterprise, a sole proprietorship concern having its office at 9/3, Ekdalia Road, Kolkata 700019 being represented by its sole Proprietor SRI SANKAR SARKAR as DEVELOPER for construction of the building as per the sanctioned plan in the said premises with the terms and conditions mentioned therein.
AND WHEREAS the Confirming Party as DEVELOPER made construction of a G+4 building as per the terms of the said agreement dated 14th Oct. 2003.
AND WHEREAS by an agreement dated 19.06.04 the Purchaser herein entered into an agreement for sale with the Vendor and the Confirming Party herein for purchase a Flat being Flat No. N-2/B, 2nd floor, Block 'N' measuring 1258 sq. ft. Super built-up area comprising of 3 (Three) Bed Room, 1 (One) Dining/ Drawing room, 2 (Two) bath room with privy, 1 (one) Kitchen and 1(One) Baranda without a Car Parking Space in the ground floor which is more fully described in Schedule 'C' hereunder written with the undivided proportionate impartible share of land
A perusal of the said recital indicates that the sanction of the building plan was obtained by the vendor and the developer had been fully authorised to execute all acts on behalf of the vendor through the Power of Attorney and again under the Agreement of Sale hereinabove to act as a Developer and to construct a multi-storeyed building as per available sanctioned plan from the Kolkata Municipal Corporation. What is peculiar and worth-noting is Clause-1.2 of the agreement for sale dated 19.06.2004 which needs a mention herein to appreciate the arguments about the obligation of getting the plan sanctioned from the Municipal Corporation. Clause-1.2 of the agreement for sale dated 19.06.2004 is extracted herein under:
"1.2. The DEVELOPER / SECOND PART being lawfully authorized and empowered by the OWNER/ONE PART, shall have the full right and liberty in getting the Plan sanctioned from Kolkata Municipal Corporation (K.M.C.) as per his own Architectural Design and Drawing Plan deemed to be ideal and suitable for the project over the "said land property (FIRST SCHEDULE) with right of modification / rectification of the plan, if necessary under changed circumstances by submitting supplementary plan with the K.M.C. in subsequent time and in that event neither the OWNER / ONE PART nor the PURCHASER/THIRD PART shall have any right to raise objection."
The aforesaid facts are being mentioned as one of the arguments advanced on behalf of the Opposite Party is that the sanction of the building plan was obtained by the vendor as if the Opposite Party No.1 had no connection with it. This argument was emphasized to contend that the OP No.1 was only a contractor engaged to raise the construction and therefore he is being wrongly described as a builder-developer.
17. Coming back to the Conveyance Deed, the extract herein above indicates that the Agreement dated 19.06.2004 and the representation made therein, is clearly acknowledged which includes the property described in Schedule-'C' with the right of common areas and common facilities which is more fully described in Schedule-'D' 'hereunder written' i.e. Schedule-'D' of the Conveyance Deed.
18. It is, thus, clear that the properties and the common facilities and areas which were together mentioned in the Agreement for sale dated 19.06.2004 were acknowledged to be in existence and represented in the Agreement to sale. But while executing the Conveyance Deed, the properties were separately described in Schedule-'C' and the common areas and common facilities in Schedule-'D'. The purpose for such bifurcation, as per the Conveyance Deed, seems to be reflected by the recital of actual conveyance only in respect of the property described in Schedule-'C'. The conveyance part specifically omits Schedule 'D' recitals in the indenture clause quoted below. To understand this, the description of the property sought to be conveyed through the deed is as follows:
" NOW THIS INDENTURE WITNESSETH: that in pursuance of the agreement for sale dated 19.06.04 and in consideration for Rs. 12,58,000/- (Rupees Twelve Lacs Fifty Eight Thousands) only having paid the Purchaser to the Vendors and the Confirming Party having confirmed the same, the Vendor doth hereby grant, convey, transfer, sale and assure and the Confirming party hereby join with the Vendor in effecting such transfer and sale of the flat as described in Schedule 'C' unto and in favour of the Purchaser together with the common areas, ways, common passage, waters waterways, sewers, easements, profits, privileges, advantages, right attached to the said flat TOGETHER WITH all the deeds, documents, writings and evidence of title relating to the said flat or any part thereof and ALL Estate rights, interest, use, inheritance, possession, benefits, claims and demands whatsoever both at law and equity of the Vendors and Confirming Party into and out of or upon the said flat or any part thereof TO HAVE AND TO HOLD possess and enjoy the said flat described in Schedule 'C' and FURTHERE THAT the vendor and the Confirming Party all presents having lawfully or equitable claiming any estate or interest whatsoever in the said flat or any of them or any part thereof from under or in trust for the Vendor and/or Confirming Party shall and will from time to time and at all times hereafter at the request and cost of the Purchaser do and execute and perform and cause to be done execute or such further and other lawful reasonable acts, deeds, things and assurance in respect of the said flat and premises whatsoever for the better and more fully assuring the said flat described in the schedule 'C' hereunder written and every part thereof unto and the Purchaser."
19. It needs to be mentioned that the agreement for sale document dated 19.06.2004 in the case of the Complainant No.5, and similar agreements for the other Complainants, were neither subjected to any challenge nor have they been cancelled. The said agreement to sale has also been acknowledged in the deed of conveyance as well. The deed of conveyance does not expressly deny the representation or the contents of the amenities, facilities of common areas and such other representations that are contained in the agreement for sale. However, it is evident that the Conveyance Deed transfers the property described in Schedule-'C' together with the common areas, ways, common passage, water-ways, sewers, easements, profits, privileges, advantages and rights attached to the said flat. It further acknowledges all deeds, documents and writings relating to evidence of title or the rights, interest use possession benefits etc. as well. This needs to be emphasised in order to gain the exact or even a pre-ponderating probability of the intention that is said to be conveyed through the said document.
20. It is in the said background that the matter came to be finally heard and the Order was passed by this Commission on 21.08.2020.
21. It is now the turn to take the matter forward in the light of the pronouncement of the Apex Court where the Order dated 21.08.2020 of the Commission came to be challenged in an Appeal and was set aside. The Apex Court in Para-3 of the judgment described the grievance of the Complainants and Para-4 the defence taken by the Opposite Party before this Commission. The Opposite Party, however, did not appear before the Apex Court. The Appeal was decided commenting upon the impugned Order that it suffered from infirmities because the Commission took 10 months after hearing to finally deliver Orders. Nonetheless, proceeding further on merits, the Apex Court observed that the impugned Order of the Commission let off the Opposite Party in a manner contrary to law and that the Commission had casually disposed of the matter. Since the observations of the Apex Court have a vital impact on the merits of the claim, it is appropriate to extract a substantial part of the judgment from Para-8 to 21 which is reproduced hereunder:
"8. What has struck us first is the time taken by Ncdrc to decide the complaint after it reserved the same for passing orders. It took Ncdrc in excess of 10 (ten) months to dismiss the complaint. As our discussion hereafter would unfold, we are of the clear view that the long delay in passing the order on the complaint did have its own effect on the ultimate decision of Ncdrc.
9. The complaint of the appellants was that the respondents have not provided playground, community hall, beautified lake, landscape gardening, generator backup, multi-gymnasium, etc. as mentioned in the brochure/advertisement pursuant to which they expressed interest to purchase flats in the project and, thus, defaulted in providing services in relation to housing construction.
10. One entire paragraph in the order has been devoted by Ncdrc to highlight that the project was not that huge and talk of common areas and facilities on a grand scale was quite misplaced. An admission made by the appellants themselves in the complaint has been referred to but we have not been able to trace any admission of the complainants that the respondents promised not to deliver substantial common areas and common facilities. Be that as it may, what Ncdrc omitted to bear in mind was that the appellants were allured to purchase flats of the nature and kind together with facilities and amenities as attractively published in the brochure/advertisement; hence, whether the project was huge or otherwise was absolutely beside the point. It was the duty of Ncdrc to ascertain, based on the materials on record, whether if at all and to what extent facilities and amenities as promised were offered and/or whether there was any deficiency of service. We have not found any categorical findings in this regard, although there are unambiguous findings that Ncdrc disapproved the conduct of the respondents.
11. The conduct of the respondents, Ncdrc recorded in the impugned order [Debashis Sinha v. R.N.R. Enterprise, 2020 SCC OnLine NCDRC 429] , was far too casual and on the face of it, the respondents are guilty of "unfair trade practice" within the meaning of Section 2(1)(r) of the CP Act. After so recording, Ncdrc held that this does little to rescue the complainants. The reason assigned therefor defies logic.
We have failed to comprehend as to what the NCDRC meant when it observed that the appellants "ought to have known what they were purchasing". More often than not, the jurisdiction of the consumer fora under the C.P. Act is invoked post-purchase. If complaints were to be spurned on the specious ground that the consumers knew what they were purchasing, the object and purpose of the enactment would be defeated. Any deficiency detected post- purchase opens up an avenue for the aggrieved consumer to seek relief before the consumer fora. The reasoning of the NCDRC is, thus, indefensible. Indeed, the appellants had purchased their respective flats on payment of consideration amounts as per market rate and there was due execution and registration of the deeds of conveyance preceded by agreements for sale and these instruments did indicate, inter alia, what formed part of the common facilities/ amenities; however, the matter obviously could not have ended there. Whether the appellants had been provided what the respondents had promised did survive for consideration, which does not get reflected in the impugned order.
12. Ncdrc , in our opinion, might have missed to appreciate the present day realities of life. Nowadays, flat owners seldom purchase flats with liquid cash. Flats are purchased on the basis of finances being advanced by banks and other financial institutions. Once a flat is booked and the prospective flat owner enters into an agreement for loan, instalments fall due to be paid to clear the debt irrespective of whether the flat is ready for being delivered possession. The usual delays that are associated with construction activities result in undue anxiety, stress, and harassment for which many a prospective flat owner, it is common knowledge, even without the project/flat being wholly complete is left with no other option but to take possession. Whether, upon taking possession, a flat owner forfeits his/her right to claim such services which had been promised but are not provided resulting in deficiency in services is a question that Ncdrc ought to have adverted to. Once Ncdrc arrived at a finding that the respondents were casual in their approach and had even resorted to unfair trade practice, it was its obligation to consider the appellants' grievance objectively and upon application of mind and thereafter give its reasoned decision. If at all, the appellants had not forfeited any right by registration of the sale deeds and if indeed the respondents were remiss in providing any of the facilities/amenities as promised in the brochure/advertisement, it was the duty of Ncdrc to set things right.
13. That the appellants had genuine reasons to feel aggrieved was clearly documented in the report of the valuer dated 11-7-2008 which was even acknowledged by Ncdrc, yet, a peculiar approach was adopted and the respondents absolved of their obligations by an order which appears to us to be unjustified on facts and in the circumstances.
14. We have found from the impugned order [Debashis Sinha v. R.N.R. nterprise, 2020 SCC OnLine NCDRC 429] that it speaks of certain facilities to be made available by the respondents on payment of extra money. However, there is no such clear-cut description of facilities/amenities which the respondents asserted would be provided on payment of extra money by the appellants. Ncdrc would have done well to indicate the same with clarity.
15. Finally, we cannot resist but comment on the perfunctory approach of Ncdrc while dealing with the appellants' contention that it was the duty of the respondents to apply for and obtain the completion certificate from KMC and that the respondents ought to have been directed to act in accordance with law. The observation made by Ncdrc of the respondents having successfully argued that it was not their fault, that no completion certificate of the project could be obtained, is clearly contrary to the statutory provisions.
16. Sub-section (2) of Section 403 of the KMC Act was referred to by Ncdrc in the impugned order [Debashis Sinha v. R.N.R. Enterprise, 2020 SCC OnLine NCDRC 429] . Sub-section (1) thereof, which finds no reference therein, requires every person giving notice under Section 393 or Section 394 or every owner of a building or a work to which the notice relates to send or cause to be delivered or sent to the Municipal Commissioner a notice in writing of completion of erection of building or execution of work within one month of such completion/erection, accompanied by a certificate in the form specified in the rules made in this behalf as well as to give to the Municipal Commissioner all necessary facilities for inspection of such building or work.
17. Section 393 mandates every person, who intends to erect a building, to apply for sanction by giving notice in writing of his intention to the Municipal Commissioner in such form and containing such information as may be prescribed together with such documents and plans. Similarly, Section 394 also mandates every person who intends to execute any of the works specified in clause (b) to clause (m) of sub-section (1) of Section 390 to apply for sanction by giving notice in writing of his intention to the Municipal Commissioner in such form and containing such information as may be prescribed.
18. It is, therefore, evident on a conjoint reading of Sections 403, 390 and 394 of the KMC Act that it is the obligation of the person intending to erect a building or to execute works to apply for completion certificate in terms of the Rules framed thereunder. It is no part of the flat owner's duty to apply for a completion certificate. When the respondents had applied for permission/sanction to erect, the Calcutta Municipal Corporation Buildings Rules, 1990 (hereafter "the 1990 Rules" for short) were in force. Rule 26 of the 1990 Rules happens to be the relevant Rule. In terms of sub-rules (1) to (3) of Rule 26 thereof, the obligation as cast was required to be discharged by the respondents. Evidently, the respondents observed the statutory provisions in the breach.
19. Curiously enough, Ncdrc referred to sub-section (2) of Section 403 of the KMC Act only to permit the respondents to wriggle out of such obligation and arrived at a completely erroneous finding that no deficiency in service could be attributed to the respondents since both the respondents and the appellants had acted in violation of law. True it is, the appellants ought not to have taken possession without the completion certificate; however, that was not a valid ground not to direct the respondents to apply for and obtain the completion certificate as required by law. The mere fact that the flat owners were being assessed by KMC affords no reason to the respondents for breaching Section 403(1) read with Rule 26 of the 1990 Rules. Of course, once a completion certificate is issued by KMC upon conducting
appropriate inspection and tests of the building that has since been erected, it would stand to reason that the same amounts to a certification that the building does not suffer from any violation of the building plan sanctioned for the purpose under Section 390 of the KMC Act or that its constructional quality is not of the desired level for which it is unsafe for human habitation. We are constrained to observe that the respondents have been let off by Ncdrc in a manner contrary to law.
20. For such infirmities, as noticed above, this is an appropriate case where the complaint of the appellants ought to be remitted to Ncdrc for taking a relook into the complaint in accordance with law. It is ordered accordingly.
21. Since it is found that the appellants while praying for monetary compensation of Rs 1,80,00,000.00 have failed to give detailed particulars and/or provide the basis therefor, and undoubtedly, they have also been on the wrong side of law by taking possession of their respective flats without the completion certificate, whatever might be the compulsion, we are not inclined to direct Ncdrc to decide on the compensation component. That chapter stands closed. The remand is directed only with a view to secure adherence to the promises that the respondents had made in the brochure and/or advertisement, as the case may be, and thereby cover up deficiency in service, if any, as well as the mandatory statutory provisions."
Thus, it is on remand that the present complaint has been heard finally where the main focus of the arguments factually and legally around over primarily on the documentary evidence on record which are obviously the documents referred to herein above. The substantive arguments on behalf of the Complainants are that there is a deficiency of service, as well as an unfair trade practice on the part of the Opposite Party by not delivering the property with facilitie and amenities as promised and represented, resulting in denial of benefits to which the Complainants are entitled as prayed for in the Complaint.
22. To understand the arguments advanced by Mr. Sharma on behalf of the Complainants, once again a reference can be made to Para-6 and 11 of the Complaint, which are extracted herein under:
"6. The problem with the Opposite Party in fact started as soon as the purchasers of the flats wanted to know when the Opposite Party No. 1 would provide Completion Certificate form the Kolkata Municipal Corporation as also provide common amenities and facilities namely "Play Ground", Community Hall cum Office Room, 33 feet wide concrete road, water supply from the Kolkata Municipal Corporation.
........
11.Thus under compelling circumstances the complainants have been obliged to initiate the proceeding for a direction upon the Opposite Parties to provide Completion Certificate of the Project and to set at right the constructional defects and to provide - (i) Community Hall, (ii) Landscape Gardening.(iii) Generator, (iv) Multi Gymnasium (Health Club) (v) Water Filtration plant and (vi) Gas Pipeline and to pay the compensation of Rs 1,80,50000/- for indulging in unfair trade practice over the Complainants by making false assurance to provide the amenities and facilities of play ground and pond ( described as "beautified lake")."
The prayer in this regard in the Complaint is as follows:
"Hence it is prayed that in view of the foregoing facts and circumstances the Opposite Parties may kindly be directed to complete the Project Work as detailed in paragraph 11 as aforesaid and to set at right the defects appearing in the report of the Expert Engineer annexed hereto as Annexure "D" and also to pay compensation of Rs.1,80,00,000/- (Rupees One Crore eighty lakhs only) for indulging in unfair trade practices over the complainants together with the cost of proceeding tentatively assessed at Rs. 50000/- (Rupees Fifty thousand only) and to pass such further or other orders as Your Lordships may deem fit and proper."
23. The argument advanced is that right from the brochure upto the Conveyance Deed, there is a variety of representation of providing all the benefits that were indicated and which were also described in the report of the Valuer dated 11.07.2008. The report dated 11.07.2008 is on record and has also been referred to in the judgment of the Apex Court extracted herein above.
24. As to how such representations should be viewed, there are some indications that have been formulated and expressed by the Apex Court in the case of Wing Commander Arifur Rahman Khan and Aleya Sultana & Ors. Vs. DLF Southern Homes Pvt. Ltd. (2020) Vol.16 SCC Page-512.
25. While noticing the definition of Section-2(1)(g) of the Consumer Protection Act, 1986, the word 'deficiency in service' was explained in detail but while understanding the plight of flat buyers, the Court observed that flat purchasers who obtain possession and deeds of conveyance executed in their favour, do not lose their rights to contest for deprived services, for example delayed handing over of flats. The Court observed that such remedy is not forsaken before the Consumer Forum even after seeking a deed of conveyance. However, since some of the flat buyers involved in the said case had entered into specific settlement deeds, they were not found entitled to any further relief. The Court, in respect of amenities made observations that are contained in Para-44 to 54 of the said report. One of the conclusions drawn while referring to the brochure and the specific amenities being referred to therein, proceeded to observe that the facts beg the question as to whether there was a breach of a clear representation that was held out to the flat purchaser by the developer. The Court went on to discuss the surrounding circumstances regarding amenities as was promised by M/s. DLF in that case and in Para-53 indicated that the Developer must be held accountable to its representation because a flat purchaser who invests in a flat does so on an assessment of its potential. The Court further observed that the amenities which the builder has committed to provide impinge on the quality of life for the families of the purchasers and the potential for appreciation in the value of the flat. Finally, the Court opined that such representation held out by the developer cannot be dismissed as chaff.
26. The aforesaid observations are being mentioned to appreciate the objection taken by the learned Counsel for the Opposite Party Mr. Banerjee that the parties have to be bound by the terms of the Conveyance Deed and they cannot go behind or beyond it to claim anything over and above that was finally made part of a binding contract.
27. In the aforesaid factual and legal background Mr. Sharma, learned Counsel for the Complainant submits that the Opposite Party cannot wriggle out of the representation and the binding effect thereof as is evident from the document right from the brochure to the Conveyance Deed. He submitted that the deficiency now stands admitted as the Opposite Party has failed to provide all the amenities which are subject matter of dispute and have been noted above. He also submits that the Opposite Party No.1 has acted unfairly by depriving the Complainants of all the fruits of their investments who are mostly Professors of IIT (now retired) and living in complete deprivation of the facilities that were promised.
28. Advancing his submissions, he contends that the responsibility of non-supply of Completion Certificate/Occupancy Certificate, now stands sealed with the pronouncement of the Apex Court which operates as res judicata and hence, the liability and responsibility of the Opposite Party to obtain the Completion Certificate/Occupancy Certificate continues and it has to be performed by the Opposite Party irrespective of any other fate of this Complaint Petition.
29. He further submits that the observations made by the Apex Court clearly indicates towards unfair trade practice within the meaning of Section-2(1)(r) of the Consumer Protection Act, 1986 and the reflections made have been crystallised to conclude that the Commission in the earlier judgment ought to have objectively dealt with each and every deficiency that was sought to be canvassed on behalf of the Complainant. He, therefore, contends that each of the amenities, facilities and benefits including common area and common facilities that were part and parcel of the Agreement for Sale, and also reflected in the brochure, and the advertisement has to be provided for by the Opposite Party which services remain deficient even today.
30. He further contends that the Conveyance Deed while mentioning the properties in Schedule-'D' acknowledged the representations made earlier, and merely because the indenture refers to Schedule-'C' property only, the same does not absolve the Opposite Party from delivering the other facilities of common area and common facilities as claimed by the Complainants. He submits that the Conveyance Deed does not restrict, prevent or dilute the claim of the Complainants with regard to the facilities as prayed for.
31. Mr. Sharma also urged that the Conveyance Deed, evidences an enhancement in the payments that were made. The payments having not been disputed, the same refers to a higher amount as initially indicated in the Agreement for Sale. Consequently, now no additional amount is payable by any of the Complainants as they have paid their entire consideration money for the property as well as all the facilities that are being claimed under this Complaint. It is reiterated that the execution of any of the documents, except a bald denial of the brochure, is nowhere contested nor the terms and conditions have been diluted and continue to be represented for its fulfilment, the deprivation whereof amounts to a clear gross deficiency in services and the conduct of the Opposite Party No.1 is a clear illustration of unfair trade practice.
32. The said arguments are sought to be rebutted by Mr. Banerjee through his opening remark that the description of the Opposite Party all the time as a Developer and Service provider is inaccurate and hence the present Complaint should not be entertained for the relief claimed herein. He submits that it was the a vendor/owner Smt. Shanti Mondal who negotiated the property and as described in the purchase of the flats and the Joint Venture Agreement, the answering Opposite Party was only a confirming party and has no right or obligation towards the Complainants. He, therefore, submits that it is wrong to construe that Opposite Party No.1 was a Developer Builder who had offered any services, the deficiency whereof could be made subject matter of this Complaint. In the said background, the Complainants are neither Consumers nor is the answering Opposite Party a service provider. Thus, in the absence of any such relationship, the Complaint deserves to be dismissed.
33. This argument has to be noted for being rejected at the outset, in as much as, the transaction of the land of the Joint Venture Agreement may have described, the Opposite Party No.1 as a confirming Party but when it came to the Agreement for Sale, dated 19.06.2004 of Complainant No.5 and similar agreements for the other Complainants, there is an unequivocal recital of the status of the Opposite Party No.1 as a Developer and the same status is maintained in the Conveyance Deeds of all the Complainants including that of Complainant No.5 dated 16.02.2007. This is the exact status which is referred to in all the deeds of all the Complainants.
34. The doubt sought to be created by raising a contention that it was the vendor, Smt. Shanti Mondal who applied for the building plan seems to be an argument in desperation. The contention so rasied by Mr. Banerji is to impress upon as if the entry of the Opposite Party in these transations is long after at the stage of actual commencement of the construction as a contractor. This appears to suggest that the Opposite Party had not extended any representation for providing amenities and facilities as the building plan was applied by the vendor, and after its sanction did he get associated with the work of construction. Thus he tended to project that the Opposite Party was nowhere to be held responsible for any such promise, and that even if it was so, the facilities and amentities as claimed have to be paid for and were not part of the conveyance.
35. As indicated hereinabove, the description of the Opposite Party in the first document as a confirming party was not that of a mere contractor but the status was made explicit as a Developer invested with full authority to perform and do everything needed for getting the plan sanctioned. The relevant part of the documents have been excerpted hereinabove that leaves no room for doubt that the Opposite Party is the promoter, developer and executor of the entire project right from inception and was authorised to negotiate the flats and receive consideration in lieu thereof. The documents, including the Agreement to Sale evidence everything to depict that it wa the OP who made all the representations regarding the property offered with all amenities and facilities and is the only Developer. The power of attorney dated 27.06.2003, the development agreement dated 14.10.2003, the agreement to sale dated 19.06.2004 (that of Complainant No.5 as an illustration), the brochure, the advertisement dated 10.06.2005, the conveyance deed dated 16.02.2007 and the pleadings on record dispel all doubts and their contents confirm that the OP No.1 was involved and accepted as a builder-developer right from inception. The fog and mist sought to be created to eclipse the real personality of the OP NO.2 as Developer therefore fails and is unacceptable.
36. The argument, therefore, has no substance and is devoid of any merit as is evident from the undisputed recital contained in the documents on record. The Opposite Party No.1 was throughout deeply involved and authorised from the very inception of the project in getting the plan sanctioned, the design approved, the construction of the G+4 multi-storeyed building, the negotiations, the deeds for agreement for sale and the Conveyance Deed and has also received the consideration for providing the services. Consequently, there is no room for doubt that the Opposite Party No.1 is a Developer Builder for the purpose of this Complaint, the Complainants are Consumers and the Opposite Party No.1 is a clear service provider for them.
37. Mr. Banerjee advancing his submissions, attempted a hair-splitting argument about the finding recorded by the Apex Court with regard to the responsibility of providing the Completion Certificate/Occupancy Certificate. Learned Counsel submits that what has to be seen is who had applied for sanction of the building plan and therefore, in view of the analysis made by the Apex Court, there has been no breach on the part of the Opposite Party. This argument has again to be noted for being rejected for which a direct reference has to be made to Para-15 to 18 of the judgment of the Apex Court which is inter parties and would obviously operate as res judicata. It is on record that the Opposite Party did not choose to contest the Appeal before the Apex Court. In the event the Opposite Party felt that the reasoning of the Apex Court was contrary to facts, as is now been pleaded by the Opposite Party, then the only recourse was to seek review on that ground or approach the same Court for any clarification. It is admitted that no such step has been taken nor any attempt has been demonstrated to that effect. The argument of Mr. Banerjee, therefore, if accepted, would be violating the findings recorded by the Apex Court in the paragraphs noted above which clinchingly observe that the Opposite Party has followed the statutory provisions of the Kolkata Municipal Corporation Act in its breach as it was the responsibility of the Opposite Party to apply and obtain the Completion Certificate. With this finding, there is no scope for this Commission to investigate the issue any further.
38. Mr. Banerjee then proceeded with his submission to contend that whatever representation had been made with regard to additional facilities, extra amenities, common areas and common facilities were all subject to payment of separate consideration. It is further submitted by him that the total of 7 cottahs of land cannot accommodate the facilities of playground, park, pond, community hall etc. which is an impossibility and therefore, the Opposite Party cannot be presumed to have represented the existence of such facilities within such a small area. The contention is that even otherwise such facilities could have been made available only on payment of extra consideration. That was clearly envisaged in the Agreement for Sale as also in the representation made.
39. He submits that in order to bonafidely provide such facilities, but only on payment of consideration over and above the amounts to be paid by the Complainants that the Opposite Party had purchased land from his own resources, for which he drew the attention of the bench to I.A. No.13513/2019 dated 13.08.2019 to substantiate his submission on the strength of the Deed of Conveyance dated 04.04.2003. This document is already on record alongwith the written statement as Annexure-'G'. The submission of Mr. Banerjee is that this document is with regard to a property, that was intentionally purchased to facilitate providing additional facilities and common areas which are sought to be availed of through this Complaint. He contends that this was a bona-fide approach of the Opposite Party to demonstrate that in case the Complainants are desirable to avail such facilities, they will have to make certain payments to that effect. He informs that some of the flat buyers have entered into such settlement and it is also open to the Complainants to do so to enable the Opposite Party to facilitate any such extra amenities that are desired.
40. He urges that it is for this reason that the Conveyance Deed has only parted with the property mentioned in Schedule-'C', and not that mentioned in Schedule-'D'. He further submits that this bifurcation was clearly understood between the parties with clarity. To substantiate this argument, Mr. Banerjee has taken the Bench through the evidence, the Interrogatories, the cross-examination and the answers to the questions suggested on behalf of the Opposite Party by the Complainants to contend that the Complainants were fully aware of the fact that they were to avail of any such extra facilities only on payment of consideration and not otherwise. He has also invited the attention to another report dated 21.03.2010 in another case that was contested before the State Commission to support his submissions.
41. He has advanced another submission that the mutations which have been carried out in 2009 clearly indicate that the conveyed property had a separate identity that was clearly connected with only that part of the property which forms part of Schedule-'C' in the Conveyance Deed and as such this is further evidence of the fact that no other extra facilities or amenities had been conveyed to the Complainants.
42. Mr. Sharma, in Rejoinder, reiterated his stand and urged that the Opposite Party has nowhere denied in his Written Statement, the representation made for conveying the property that is included in Schedule-'D' as well. He has referred to Para-4(g), Para-18, 25 & 28 of the Written Statement which have also been read by Mr. Banerjee in his support.
43. Having considered the arguments and having perused the records, it would now be apt to proceed to consider the impact of the documents which form the substantive part of the arguments as evidence and then to the answers to the Interrogatories and the cross-examination for assessing as to whether the Opposite Party No.1 intended and was obliged to fulfil the claims as made by the Complainants and as to whether there has been any failure on his part to construe deficiency in service or unfair trade practice.
44. The first issue is about the representation made by the builder in respect of the amenities and facilities that were promised to be provided in the developed area. At the very outset the brochure described the facilities which have been indicated in Para-1 of this Order. This is followed by the advertisement and then the Agreement to Sale dated 19.06.2004 in the case of Sudip Chakraborty as a sample has alrady been referred to hereinabove.
45. Till this stage, no other description was available with regard to the facilities represented by the Opposite Party No.1.
46. There is a document drawn up by Mr. Monojit Dey, an approved valuer of the Kolkata High Court that has been made part of the Complaint. This report was referred to by the Apex Court in the Judgment between the parties reported in 2023 Vol.III SCC Page 195 (Supra). Para-8 to 21 of the said judgment have been extracted entenso in Para-21 of this Order hereinabove. The Apex Court took notice of the brochure, the advertisement as well as the report of the valuer dated 11.07.2008 which is extracted herein below:
"As per the request of the flat owners of the Soura Niloy Housing Complex, 1, Kailash Ghosh Road, Kolkata-700008, to inspect the Complex and to report if the Developer Landowner has provided the amenities and facilities as provided in the Brochure, Agreement and Deed of Conveyance.
As per brochure the following items have not been provided.
1. Playground
2. Community Hall.
3. Beautified Lake.
4. Landscape gardening.
5. Generator backup.
6. Multi Gymnasium.
As per the agreement the following items have not been provided:
1. Generator.
2. Water filtration plant.
3. Gas pipeline.
4. Intercom line.
5. Health Club.
6. Manual swimming pool."
47. The description of the representation of the brochure, the Agreement and the Deed of Conveyance have been detailed therein. The valuer expressed his surprise as to the utilisation of the area of the land for facilities for water resources. Certain defects were also noted including the absence of the 33 feet wide common concrete road. Alongwith the said report, a chart is also provided therein including the inspection of 36 flats. The Apex Court while noticing the said report came to the conclusion that the same could not have been ignored. The Apex Court also commented that if the facilities and amenities as promised in the brochure as well as in the advertisement were not available, it was the duty of the NCDRC to set things right.
48. However, while disposing of the matter the Apex Court also observed that the Deeds executed including the Deed of Conveyance indicate what formed part of the common facilities/amenities. The Apex Court also went on further to opine that the National Commission didn't indicate in the Order as to whether such promises did survive for consideration or not.
49. It was concluded that there is no clear-cut description about the amenities and facilities to be provided on extra payment of money by the Complainants. This aspect needed clarity and hence the matter was remitted back for consideration.
50. However, while disposing of the matter, the Apex Court observed that the compensation component, namely compensation on delayed possession, was closed and the case was remanded only with a view to examine as to whether the Opposite Party had adhered to the promises made in the brochure and the advertisement for covering up the deficiencies.
51. The stress, therefore, by the Apex Court was clearly emphasised on the examination of all the documents right from the brochure upto the Conveyance Deed to find out as to what were the promises extended that were in the category of deficiency in service.
52. The argument which has been advanced on behalf of the Opposite Party primarily is an insistence to the adherence of the terms contained in the Conveyance Deed dated 16.02.2007 as illustrated in the case of one of the Complainants namely the Complainant No.5. The contention of the Opposite Party No.1 is that this deed finally determines the exact conveyance which are the properties mentioned in Schedule-C thereof and not Schedule-D. Consequently, all other facilities and amenities, which are beyond Schedule-C in the said Conveyance Deed, were available only on payment of consideration or availability of space. The contention is that the indenture does not contain the recital of the properties and amenities mentioned in Schedule-D and hence the Complainants cannot claim any deficiency in service or unfair trade practice on that count as they were clearly aware and the conveyance deeds were signed without protest or demur.
53. In view of the observations made by the Apex Court in the judgment interparties referred to hereinabove, this contention on behalf of the Opposite Party-1 cannot be accepted that the amenities and facilities would stand confined only to that which has been mentioned under the Conveyance Deed. The Apex Court has categorically observed that the documents and deeds right from the brochure upto the Conveyance Deed have to be examined. In this view of the matter, the same has to be assessed for the purpose of permutating the amenities and facilities that had been represented by the OP-1 to the Complainants.
54. There is yet another reason namely that even though the brochure has been denied yet the advertisement dated 10.06.2005, the Development Agreement dated 14.10.2003, the Agreement to Sale dated 19.06.2004 and the recital thereof in the Conveyance Deed has not been denied/challenged and the contents thereof have not been disputed.
55. It is only at the stage of the Conveyance Deed that the bifurcation of the schedule of properties was made.
56. In the background above, the facilities appear to have been promised and are also reflected in the Agreement to Sale. The facts to be noted therefore are the recital in the Agreement to Sale about what was intended to be conveyed, which is as follows:
"AND WHEREAS in pursuance of aforesaid conditional / surrendered Joint Venture / Developing Agreement dated 14 October, 2003 the OWNER/VENDOR of the ONE PART and the DEVELOPER/SECOND PART agree to sell and transfer or convey and the PURCHASER /THIRD PART agree to purchase and acquire a flat/shop/office space/godown/ car parking bearing No. 213 having covered area / constructed or built up area measuring more or less 1258 sq.ft. in the 2nd floor of Block "N"--the proposed multi-storyed building complex, known as "SOURA NILOY HOUSING COMPLEX, lying and situates at Plot No. 1, Promises No. 1-U, Kailash Ghosh Road, P.S. Thakurpukur, Kolkata - 700 008 hereinafter for brevity's sake referred to as the "said flat / unit (more particularly described in SECOND SCHEDULE hereunder) together with undivided and impartiable share in land proportionate to area of construction with permanent hereditary, transferable and absolute right of occupation, use and enjoyment of the common spaces and facilities available with duties to maintain by bearing the expenses incurred proportionately, in maintaining and repairing of the common spaces and facilities and for other extra facilities and amenities e.g. Generator, Water Filtration Plant, Gas Pipeline, Intercom Line, Dish Antenna, Health Club, Cable Line, Manual Swimming Pool, etc the PURCHASER/ THIRD PART have to pay extra sum of Rs.40,000/- and for Car Parking space a further sum of Rs. 1,00,000/-(Rupees One Lac) only which shall be in addition to the total consideration money for the "sald flat/unit".
AND WHEREAS, the PURCHASER/THIRD PART being in agreement with the terms and conditions laid down hereunder paid to the DEVELOPER/SECOND PART a sum of Rs. as advance against total consideration of Rs. for the "said flat/unit". In addition to that, paying Rs. 1,00,000/-(Rupees One Lac) only for car Parking space and Rs. 40,000/- for extra facilities and amenities mentioned hereto above."
What is important in the said Agreement of Sale is Clause-1.11 which is extracted hereunder:
"1.11. The OWNER/ONE PART and DEVELOPER/SECOND PART agree to sell and the PURCHASER/THIRD PART desirous of owning a flat, agrees to purchase by paying a total consideration of Rs. 12,98,000/- for all that the flat/shop/godown/ office space / car parking space bearing no. 213 having more or less 1258 Sq.ft. covered area / built-up area (SECOND SCHEDULE) in 2nd floor of Block "N" - a proposed multi-storeyed partly residential and partly commercial building complex, known as "SOURA NILOY HOUSING COMPLEX", which situates at Plot No. 1 also known as premises No. 1-U, Kailash Ghosh Road, P.S. Thakurpukur, Kolkata - 700 008 in Ward No. 123 of K.M.C. together with proportionate common/service area of sq.ft and undivided, impartiable proportionate share in land, hereinafter called the "said flat / unit" with permanent hereditary, transferable and absolute right of occupation and use and also enjoyment and use of common spaces and facilities available with duties to maintain by bearing the expenses incurred proportionately in maintaining and repairing of the common spaces and facilities and for other extra facilities and amenities e.g. Generator, Water Filtration Plant, Gas Pipeline, Intercom Line, Dish Antenna, Health Club, Cable Line, Manual Swimming Pool, etc. the PURCHASER/THIRD PART have to pay extra sum of Rs. 1,00,000/- (Rupees One Lac) without development only and for Car Parking space a further sum of Rs. 1,00,000/- which shall be in addition to the total consideration money for the "said flat / unit" (SECOND SCHEDULE)."
The payment clause of the said Agreement contained in Article-VI, Clauses-6.1 and 6.2 are important which are extracted hereunder:
"6.1 In consideration agreeing to make payment of a sum of Rs. 12,98,000/- (Rupees Twelve lacs ninty eight thousand) (hereinafter called the Consideration Money) towards the cost of the said unit/flat constructed space agreed to be purchased by the PURCHASER together with the proportionate undivided share in the land and common areas/ portions of the said building. The said consideration is to be paid in the manner and within the time mentioned in Parts I and II of the THIRD SCHEDULE hereunder written.
6.2 In additional to the aforesaid consideration as mentioned in Clause 6.1 the PURCHASER shall also be the following amounts to the DEVELOLPER and payment of such amount shall be made at or before taking over possession of the said unit:-
a) Charges for providing any additional work in or relating to the said unit at the request of the PURCHASER and for providing any additional or utility in or around the said unit in excess of those mentioned in PART-1 of the THIRD SCHEDULE hereto provided that if any work or provision be made for the PURCHASER in common with others in the said building, such as any payment deposits made to CESC for HT/LT line, charges of cable installation & contractors remuneration and also proportionate cost or Transformer, Meters/ Sub-Meters, Cable and any payment made for generator, fire fitting equipments, water filtration plant, gas pipeline supply (if possible and available and their installation charges and accessories) EPBX or Intercom facility. Dish antenna and other facilities or amenities such as equipments of health club etc cost of fixtures and fittings etc. for common areas, the PURCHASER and such other persons shall share the charges thereof proportionately and the PURCHASER shall be liable to pay only the proportionate share thereof.
b) All betterment fees, taxes and other levies, charges imposed by the Government or any other authority related to the said premises and / or the said building or any part thereof and/or the said unit shall be paid and bome by the PURCHASER proportionate her interest therein and those relating only to the said unit shall be borne solely and exclusively by the PURCHASER.
c) Fees and charges of professionals and advocates appointed by DEVELOPER for the purposes of formation of a holding organization / maintenance society and for the individual assessment apportionment of Kolkata Municipal Corporation (K.M.C.)
d) two/four wheeler parking space, if purchased by the PURCHASER"
57. The third schedule of the Agreement in Part-I also spells out the payments to be made in addition to the consideration amount, which is extracted hereunder:
"THE THIRD SCHEDULE ABOVE REFERRED TO PART-I A. 75% consideration for construction costs to be paid to the DEVELOPER;
For super structure / civil work of the floor space of the said unit Including proportionate costs for that of common passage area the amount.
B. 25% for land right attributable to the said unit. Rs.12,58,000/- Development fees Rs. 40,000/- Rs.12,98,000/- NO PARKING
In addition to above Purchaser shall also make payment of his proportionate share of the following C. For CESC/L.T. Line all expenses up to L.T. Line, Sub-Meter, Cables, Costs Deposit etc. including transfer surcharge and contractor's charges.
D. For Generators, Intercom, Dish Antenna equipment, Fire Fighting, Water Filtration Plant, and apparatus of Health Club and other Electrical gadgets and other equipments for common use.
E. For Gas pipe lines all expenses (subject to availability).
F. For additional work in the said unit other than those provided in the FOURTH SCHEDULE hereunder.
G. House Tax / Mutation Fees and other taxes and duties extra or other Statutory liabilities as would be applicable (present and future), Charges of processional appointed for appointment, Assessment of Municipal Rates and Taxes.
H. Proportionate cost of such other amenities which may be provided by the DEVELOPER for the use of occupiers of the said building."
Then comes to the 5th Schedule, where common amenities and facilities to be provided, has been mentioned under the said heading which indicates the sharing of costs inspite of such common amenities/facilities, the same is extracted hereunder:
" COMMON AMENITIES & FACILITIES A generator to be provided for lifts, pump and for lights in common areas and for other common facilities, cost to be born by PURCHASER Generator power would also be supplied to the Flats for inside use as per their requirement at proportionate cost and its installation costs to be paid by the respective parties.
Flat owner to pay proportionate cost of generators, wiring and other machineries and installations of generator for inside use in flat of Generator Power, proportionate cost of common areas to be born by the DEVELOPER.
A deep tube well for 24 hours water supply with necessary pumping arrangement (for emergency) to be provided by the DEVELOPER at its cost. Separate arrangement for Corporation Water to be made.
Telephone wiring to be done in each flat for 1 no. of telephone, Dish antenna and cable Video wiring by the DEVELOPER at the cost of the PURCHASER arrangements for intercom facility to be made on the proportionate cost of the flat owners.
One lift to be provided.
Water reservoirs for Corporation Water to be provided for storing water in sufficient quality."
The aforesaid description in the Agreement to Sale does not stand disputed by the Opposite Party No.1 but the argument is that the final Conveyance Deed dated 16.02.2007 does not spell out any such indications.
58. Now, coming to the Conveyance Deed, the Agreement to Sale is mentioned just above the indenture that has been extracted hereinabove. The contest is about the common area and common facilities which has been described in Schedule-D. The said Schedule is the sheet anchor argument of the learned Counsel for the Opposite Party No.1 to urge that these common areas including 33 feet wide concrete road as well as the other facilities were to be provided on payment basis as per the Agreement to Sale. The argument throughout has been that the Conveyance Deed does not transfer the property mentioned in Schedule-D without consideration, which is extracted hereunder:
" SCHEDULE 'D' REFERRED TO ABOVE ALL THAT part of lobbies, Stairs, staircase, passages, lift, shafts, substation, pump room, machine room, and lift room including common facilities in play ground, children park, community Hall cum office Room, library, 33' ft. wide common Concrete Road, drainage, and Tube well, Transformer and Generator Room, Water Reservoir, Motor pump and overhead Tank, Septic Tank.
IN WITNESSES WHEREOF the parties hereto have set and subscribed their respective hands and seals on the day, month and year first above written."
59. The argument advanced is that the Schedule-D property was not to be conveyed free of cost but the same was to be paid by the respective flat owners in proportionate shares.
60. It is also the contention of the learned Counsel for the Opposite Party No.1 that no such additional payment for any of these facilities and amenities was made by the Complainants' nor is there any Evidence to this effect. In such circumstances, this fact will have to be taken into consideration for an assessment as directed by the Apex Court.
61. Commencing with the facts relating to the representations made by the Opposite Party, the brochure printed in the name of the Opposite Party is the first document, the contents whereof are substantially common as in the advertisement dated 10.06.2005. The facilities offered were not mere allurements but were positive offers typifying expected amenities. The descriptions are akin to what is normally offered as pragmatic and reasonable accompaniments to any township or residential area being developed as a group housing entrepreneurship. The itemized facilities are neither vague nor exaggerated and appeal to be normal depictions what generally all developers and builders do for fetching promising customers and aspiring home buyers. The portrayal of the amenities offered do not appear to be pretentious but is a graphic description of what was in the offing.
62. The facilities offered as indicated above were that of Generators, Water filtration Plant, Gas Pipe Line, Dish Antenna, Health Club, Cable Line, Swimming Pool and Car Parking space on payment of additional charges. A combined reading of the Agreement as well as the Conveyance Deed indicates that these facilities were to be provided on payment of additional charges. Consequently, such payments have to be borne by the Flat Buyers without any doubt.
63. But at the same time, the representation made by the OPs regarding community hall, Children Park, playground, Multi Gymnasium, land-scape garden had to be developed by the Opposite Parties. The contention of Mr. Banerjee, learned counsel on behalf of the Opposite Parties is that it was not possible to accommodate these facilities within the 7 Cottahs of land over which the development was to be carried out is to only absolve the Opposite Party of the promise made by him right from the stage of the brochure to the stage of the Conveyance Deed. What has been done by the Opposite Party is that this part of the promise was sought to be excluded under Schedule-D of the Conveyance Deed. The promise was legitimately due that cannot be denied as this is not a forced circumstance but a cration of the Opposite Party by introducing and carving out a separate Schedule-'D' in the deed. This is a voluntary act of the Opposite Party inducing the Complainants to sign on the dotted line making them look helpless after driving them to the wall.
64. The question of shortage of land therefore cannot now be taken as an excuse for not extending the said benefits that were sought to be excluded through Schedule-D of the Conveyance Deed. It has been stated by the Complainants that they themselves through pooled resources have spent a huge amount of more than Rs.50 Lakh in getting the 33 feet common concrete road constructed which was promised by the Opposite Party. The Opposite Party himself has stated that he had purchased 6 Cotahs and 8 Chittaks of land vide Sale Deed dated 04.04.2003 situate in the same area of Mauza Purba Barisha where the property has been developed intending to complete the project. This land has been indicated in the Written Statement as mentioned above to have been purchased for being developed for the same project, but on payments. The deed for the said land is on record as Annexure-G to the Written Statement. The additional payments have been demanded as stated in paragraph 28 of the Written Statement. In the opinion of the Commission, this stand taken by the Opposite Party No.1 seeking extra payments for the promised and represented amenities over and above of the amount already agreed upon, is unjustified as setting up the Community Hall, Children Park, playground, Multi Gymanisum, land-scape garden, the expenses for the 33 ft. wide road have to be accommodated, and for that it may be pointed out that in the light of what was indicated in the judgment of the Supreme Court inter-parties, as well as the law laid down later on in other similar cases, the aforesaid common facilities could not have been excluded on extra charges demanded by placing them under Schedule-D of the Conveyance Deed. By not making this provision and denying the facilities, the said recital in the Conveyance Deed is clearly one sided and against the promise made and represented by the Opposite Party. This clearly amounts to an unfair trade practice and is a clear deficiency in service on the part of the Opposite Party No.1.
65. To compensate the Complainants in tangible terms, since this dispute would be governed by the provisions of the Consumer Protection Act, 1986, it would be apt to refer to the jurisdiction and powers conferred on the National Commission under Section 21 read with Section 22 of the 1986 Act. A perusal of Section-21(a)(i) would indicate that the jurisdiction of the National Commission is also to entertain original Complaints where the value of the case or services and compensation, if any, claim exceeds Rs.1 Crore (this pecuniary jurisdiction in excess of Rs.10 lacs was prior to 18.06.1993 which rose in excess to Rs.20 lacs w.e.f. 15.03.2003 and has been substituted by the words Rs.1 Crore w.e.f. year 2002 till the introduction of the 2019 Act and the subsequent amendment thereto). As already indicated above, the matter was decided by this Commission in the year 2020 and the Order was challenged before the Apex Court where it was set aside and it is on remand that the present dispute is being finally decided. Thus, the original Complaint is to be decided according to the powers vested in Section 22 of the Act. Section-22(1) of the 1986 Act has applied the provisions of Section-12, 13 & 14 of the Act, coupled with the Rules made thereunder for disposal of Complaints by the District Forum to the claims to be decided by the National Commission with such modifications as may be considered necessary. Accordingly, reverting back to Section-14, the power is to remove the defects or replace the goods or return to the Complainant the price or the charges paid and to pay such amount as may be awarded by it as compensation to the Consumer for any loss or injury suffered coupled with the powers to grant punitive damages. The power also extends to removal of the deficiency in service and discontinue the unfair trade practice or to pay such sum as may be determined by it. This is also added by a provision to provide adequate costs to the parties. Thus, for any deficiency in service or any indemnifiable unfair trade practice, the Commission has been given powers to compensate on such terms as may be adequate so as to indemnify any loss or damage sustained by the consumer.
66. A perusal of the aforesaid provision in the background of the present case and the loss discussed hereinabove, the Opposite Party being bound by his representation, attracts the jurisdiction of this Commission to compensate the Complainant in tangible terms.
67. Compensation is payment for damages or loss suffered. It is to indemnify and is a return to equalize or make amends for any loss or damage. In terms, it counter balances in the shape of damages that can be reparation in terms of money or otherwise leveling to the value of loss occasioned by one or the other form of injury. Depending upon the nature of the loss or damage or injury, damages can be pecuniary, or compensated through materially tangible means say, land returned of the same value as the land actually lost, non-pecuniary or otherwise compensatory methods.
68. In the back ground above, the Opposite Party No.1 is therefore bound to provide the said facilities by appropriately accommodating the same over area of the land that has been acquired by the Opposite Party under the Sale Deed dated 04.04.2003 (Annexure-G of the written statement). The said land, according to the deed, was purchased by the Opposite Party No.1 for a consideration of Rs.1,50,000/- only in 2003. The same in tangible terms after 20 years would adequately compensate towards the deficiencies suffered by the flat buyers and therefore, deserves to be conveyed and developed by the Opposite Party No.1 for the unprovided common amenities and facilities free of cost as discussed above.
69. The Opposite Party is also liable to ensure 24 hours water supply to the Complainants by installing equipments and borewells or otherwise arrange for permanent supply of water with the Kolkata Municipal Corporation.
70. In view of the findings recorded herein above, the complaint in respect of all the complainants is allowed to the extent and subject to the conditions and directons recited hereinunder:
1. The entire land purchased by the OP No.1 through the conveyance deed dated 04.04.2003, shall be handed over, conveyed and developed by the OP No.1 and utilised exclusively for setting up a Community Hall, Children Park and playground, Multi Gymnasium, land-scape garden for the benefit of the residents that shall be subject to as per municipal building norms within a period of one year from the date of this order free of any charges.
2. The OP No.1 shall at it's own expense ensure 24 hours water supply to the promises of all the complainants by installing equipments, borewells or negotiating a permanent supply from the Kolkata Municipal Corporation within 3 months.
3. The extra facilities and amenities mentioned in the Agreement to Sell coupled with Clause 1.11, Clause 6.1 and 6.2 thereof read with the 3rd and 5th Schedule of the same shall all be developed by the Opposite Party No.1 and provided to all the Complainants subject to payments for the same by them.
4. The OP No.1 shall provide for a generator back up facility for supply of electricity to the flat owners and lifts but such of these facilities shall be at the cost of the flat owners to be proportionately borne by them.
5. The facilities to be provided have to be completed within a period of 6 months from today subject to the payments being made by the Complainants as indicated hereinabove.
6. In the event of any failure on the part of the Opposite Party No.1 to carry out the aforesaid directions for any reason whatsoever the same shall be executable and, alternatively keeping in view of the nature of the facilities that are to be compensated for, and having not been provided, the Opposite Party No.1 in the event of default in carrying out the directions herein above shall be liable to pay a sum of Rs.10 Lakhs each to all the Complainants in lieu of the amount which deserves to be compensated for the deficiencies noted in this Order. The Opposite Party No.1 shall additionally be under an obligation to carry out the above within the time prescribed or in default to pay a further total punitive cost of Rs.17.50 Lakh, that is Rs.50,000/- to each of the Complainants, for the same.
7. A litigation cost of Rs.10,000/- to each of the Complainants amounting to Rs.3,50,000/- shall be paid to the Complainants. The costs awarded hereinabove shall be disbursed within one month and shall be payable to the Complainants accordingly.
.........................J A. P. SAHI PRESIDENT