State Consumer Disputes Redressal Commission
Miss. Suryatapa Das vs M/S. A2 Services on 6 June, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/87/2014 1. Miss. Suryatapa Das D/o Dr. Ajoy Kumar Das, 195, Hossainpur, Madurdaha, P.S. Tiljala, P.O. KETP, Kolkata-700 107. 2. Dr. Ajoy Kumar Das S/o Late Gouri Sankor Das, 195, Hossainpur, Madurdaha, P.S. Tiljala, P.O. KETP, Kolkata-700 107. ...........Complainant(s) Versus 1. M/s. A2 Services Pearl Elegance, Ground Floor, 1554 Madurdaha, P.O. EKTP, Kolkata - 700 107. 2. Mr. Aniruddha Mukherjee S/o Mr. Nikhil Mukherjee, "Pearl Royal", 3rd Floor, 345, Madurdaha, P.O. -EKTP, P.S. Anandapur, Kolkata - 700 107. 3. Mr. Arnab Dasgupta S/o Mr. Goutam Dasgupta, "Pearl Royal", 4th Floor, 345, Madurdaha, P.O. -EKTP, P.S. Anandapur, Kolkata - 700 107. 4. Mr. Priya Nath Saha S/o Late Chunilal Saha, 54, Ekdalia Road, P.S. Gariahat, Kolkata - 700 109. 5. Mr. Prasanta Saha S/o Mr. Priya Nath Saha, 54, Ekdalia Road, P.S. Gariahat, Kolkata - 700 109. 6. Mr. Susanta Saha S/o Mr. Priya Nath Saha, 54, Ekdalia Road, P.S. Gariahat, Kolkata - 700 109. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Partha Sarathi Kasyapi, Advocate For the Opp. Party: Mr. Ved Sharma, Advocate Dated : 06 Jun 2017 Final Order / Judgement Date of filing - 10.04.2014 Date of final hearing - 15.05.2017 The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of intending purchasers against developer firm and its partners (Opposite Party nos. 1 to 3) and landowners (Opposite Party nos. 4 to 6) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
In a nutshell, Complainants' case is that on 16.03.2011 they had entered into an Agreement for Sale with the opposite party no1 represented by OP nos. 2 & 3 to purchase of a self-contained flat measuring about 1125 sq. ft. being Flat No.5 on the 4th floor and an open car parking space measuring about 135 sq. ft. on the ground floor in a G+4 storied building lying and situated at Premises No.387, Madurdaha, P.S.- Tiljala, Kolkata - 700107, Dist - South 24 Parganas within the local limits of the Kolkata Municipal Corporation at a total consideration of Rs.33,75,000/-. The complainants have stated that they have already made a total payment of Rs.28,68,750/- on diverse dates out of the said total consideration amount besides payment of Rs.2,52,000/- in cash on 11.03.2011 on account of registration cost. It was stipulated that the developer will deliver the possession on or before August, 2011. The complainants alleged that in August, 2011 when they visited the spot, they found several unfinished works in respect of the said flat. The requests and persuasions of the complainants including legal notice dated 07.02.2014 turned a deaf ear. Hence, the complainants have filed this complaint against the opposite parties with prayer for certain reliefs, viz.- (a) to handover the scheduled mentioned flat and open car parking space; (b) to complete the registration process; (c) for payment of Rs.1,24,000/- as penalty for delay in handing over; (d) Rs.15,00,000/- as compensation for harassment and mental agony and (e) Rs.20,000/- as litigation cost.
The opposite party nos. 1 to 3 by filing a written version have stated that in terms of the Agreement, the complainants were supposed to pay off about 90% of the consideration amount i.e. Rs.30,57,500/- to the opposite parties prior to execution and registration of Deed of Conveyance but the complainants paid a sum of Rs.28,68,750/- till date and an amount of Rs.1,68,750/- is due and payable and as such question of deficiency on the part of them does not arise.
The opposite party nos. 4 to 6 by filing a separate written version have stated that the complaint should be dismissed against them.
On the basis of contention of the parties, the following points are framed for adjudication:-
Is the complaint maintainable in its present form?
Are the OPs deficient in rendering services to the Complainants? Are the Complainants entitled to get the relief/reliefs, as prayed for?
During hearing of the case the parties have tendered evidence on affidavits. They have also filed some documents in support of their respective points.
On the basis of the materials indicated herein above, I shall proceed to discuss how far the Complainants have been able to substantiate the case.
DECISION Point No.1:
The materials on record indicate that the opposite party nos. 4 to 6 are the landowners in respect of a piece of land situated at Premises No. 387, Madurdaha, P.S.- Tiljala, Kolkata - 700107. On 26.05.2009 the OP no.1 partnership firm represented by OP nos. 2 & 3 had entered into a Development Agreement with OP nos. 4 to 6 for raising a multi-storied building thereon. Being embolden with such agreement and the Power of Attorney, the developer has entered into an agreement with the complainants to sell a self-contained flat measuring about 1125 sq. ft. being Flat No.5 on the 4th floor and an open car parking space measuring about 135 sq. ft. on the ground floor in a G+4 storied building lying and situated at Premises No.387, Madurdaha, P.S.- Tiljala, Kolkata - 700107, Dist - South 24 Parganas within the local limits of the Kolkata Municipal Corporation at a total consideration of Rs.33,75,000/-.
The complainants have categorically stated that out of total consideration amount of Rs.33,75,000/-, they have already paid a sum of Rs.28,68,750/- to the developer on diverse dates in between 06.07.2010 and 25.08.2011 as spell out in Paragraph-7 of the petition of complaint. The developer in their written version has admitted the same. Therefore, in view of the definition of Section 2(1)(d)(ii) of the Act, complainants are 'consumer' and they hired the services of the OP nos. 1 to 3 upon consideration.
Accordingly, this point is decided in the affirmative and in favour of the complainants.
Point No.2:
It is trite law that the parties are bound by the agreement. Both the parties have executed the agreement after knowing pros and cons and terms of the agreement and as such the recitals of the Registered Agreement for Sale dated 16.03.2011 towers above the rest. The Clause 4(e) of the Agreement provides - "the developer shall complete the construction of the building in all respects and make ready for possession of the said apartment to the purchasers on or before August, 2011 subject to the compliance of terms and conditions mentioned in this agreement". Again Clause 4(f) runs as follows - "In case of default in the matter of payment of instalments as stated in Clause 2 of this Agreement by the purchasers to the developer, the purchasers shall be liable by way of compensation to pay interest @ 24% p.a. on the outstanding amount after 30 days on failing to pay the instalment amount to be paid to the developer from the demand notice in addition to the payments as written in Clause 2 hereinabove". Clause 4(j) further provides - "the developer shall not be liable for any loss caused by acts of God or other unforeseen circumstances making it impossible for the developer to construct the said building and to deliver possession of the said flat/apartment to the purchasers on or before the stipulated date. Save and except, the aforesaid reason the developer shall be liable to deliver possession of the said flat in the said building to the purchasers on or before the said stipulated date otherwise the developer shall be liable to pay damages @ Rs.4,000/- per month to the purchasers till the delivery of the flat in the building".
Admittedly, the developer could not make the flat ready by August, 2011 as per terms of the agreement. The developer took a feeble plea of non-payment of 90% of the total consideration amount before execution and registration of Deed of Conveyance. The fact remains that complainants were very much diligent in making payment and as such even on 25.08.2011 they have paid a sum of Rs.3,37,500/- by a cheque. The developer never asked the complainants to pay the balance consideration amount to get the Deed registered in favour of them.
At the time of hearing, on behalf of the developer, one decision of Hon'ble Supreme Court dated 27.04.2007 in Appeal (Civil) 2205/2007 (Arunima Baruah - vs. - Union of India & Ors.) has been filed. The said decision with relation to suppression of fact by way of non-disclosure. In the case beforehand, the Registered Agreement for Sale is the subject matter of consideration and question of suppression of fact is irrelevant. Another decision of High Court of Bombay, Nagpur Bench dated 07.04.2017 in Civil Revision Application No.44 of 2015 (Kashinath -vs.- Bishnu) has been filed. In the said case, the question came for consideration regarding permission to non-applicant to withdraw the suit filed by him with liberty to file a suit afresh on the same cause of action. The said decision has also no manner of application in our case.
The factual matrix of the case goes to show that despite receipt of bulk consideration amount, the developer has not yet handed over the possession of the flat or the car parking space within the stipulated period. Therefore, the OP nos. 1 to 3 are deficient in rendering services to the complainants.
Accordingly, this point is also decided in favour of the complainants and disposed of.
Point No.3:
In view of foregoing discussion in respect of Point Nos. 1 & 2, the only irresistible conclusion should be drawn that the complainants are entitled to reliefs as prayed for. Besides an order of delivery of possession and execution of Sale Deed, the complainants are also entitled to Rs.4,000/- per month for delay in handing over possession as per Clause 4(j) of the Agreement for Sale. The complainants have to suffer much on account of conduct and attitude of the developer and as such the complainants are entitled to compensation and considering the facts and circumstances of the case, it appears to me that a compensation of Rs.5,00,000/- in the facts and circumstances of the case will meet the ends of justice. The unethical approach of the developer led the complainants to lodge the complaint and as such the complainants are entitled to litigation cost which I quantify at Rs.10,000/-
The point no.3 is also disposed of accordingly.
In the result, complaint succeeds in part. It is, therefore, ORDERED The complaint is allowed on contest with cost of Rs.10,000/- to be paid by OP nos. 1 to 3 to the complainants.
The opposite party nos. 1 to 3 are directed to deliver possession to the complainants within 30 days from date after receipt of balance consideration amount. The OP nos. 1 to 6 are jointly and severally directed to execute the Sale Deed in favour of the complainants within 30 days from the date of payment of balance consideration amount by the complainants to the OP nos. 1 to 3.
The OP nos. 1 to 3 are also directed to make payment of Rs.5,00,000/- as compensation, Rs.1,24,000/- as penalty for delay in handing over the property as per terms of the agreement and Rs.10,000/- as litigation cost and the said amount of Rs.6,34,000/- must be paid by the OP nos. 1 to 3 in favour of the complainants within 30 days from the date otherwise the amount shall carry interest @ 9% p.a. till its realisation.
The Registrar of the Commission is directed to send a copy of this order to the parties to the case at once free of cost for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER