State Consumer Disputes Redressal Commission
Smt. Khushboo Devi vs Indranil Ray Chowdhury on 16 March, 2020
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/333/2017 ( Date of Filing : 08 May 2017 ) 1. Smt. Khushboo Devi W/o Sri Raj Kishor Poddar, 98/2/1A, Beliaghata Main Road, 3rd Floor, Kolkata - 700 010, P.S. - Narkeldanga. ...........Complainant(s) Versus 1. Indranil Ray Chowdhury S/o Lt. Sarajit Roychowdhury, 27A, Convent Road, P.S. - Entally, Kolkata - 700 014. 2. Kamruzzaman Choudhury S/o M.R. Choudhury, Office at 27A, Convent Road, P.S. - Entally, Kolkata - 700 014. 3. Sri Ashim Kr. Das S/o Lt. Ajit Kr. Das, 24/B, Omda Raja Lane, P.S. - Narkeldanga, Kolkata - 700 015. 4. Sri Arup Kr. Das S/o Lt. Ajit Kr. Das, 24/B, Omda Raja Lane, P.S. - Narkeldanga, Kolkata - 700 015. 5. Sri Arun Kr. Das S/o Lt. Ajit Kr. Das, 24/B, Omda Raja Lane, P.S. - Narkeldanga, Kolkata - 700 015. 6. Smt. Prova Halder D/o Lt. Ajit Kr. Das, 14/2, Kaikhali Sardar Para(Angsha), 27, Airport, North 24 Pgs., Kolkata - 700 052. 7. Smt. Biva Dev D/o Lt. Ajit Kr. Das, 68/2A, Durgacharan Doctor Road, Kolkata -700 014. 8. Smt. Niva Paul D/o Lt. Ajit Kr. Das, 2A, Onmit 2nd Lane, Kolkata - 700 014. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Mr. Avidip Kundu, Advocate For the Opp. Party: OP-2 in Person Dated : 16 Mar 2020 Final Order / Judgement PER: HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint under section 17 (inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of an intending purchaser against the Developer/builder (Opposite Parties 1 and 2) of the landowners (Opposite Parties 3 to 8) on the allegation of deficiency of services, primarily on the part of developer/builder in a dispute of housing construction.
Succinctly put, complainant's case is that on 23.12.2014 she entered into an agreement with the Opposite Party Nos. 1 and 2 i.e. the partners of M/s. Rysha Developers, a partnership construction firm to purchase of a self-contained residential flat measurement about 615 sq. ft. super built up area being flat No. 4A on the third floor in a G+III storied building lying and situated at premises No. 24B, Omda Raja Lane, P.S- Narkeldanga, Kolkata- 700015, Dist- South 24 Parganas within the local limits of ward No. 36 of Kolkata Municipal Corporation at a total consideration of Rs. 24,00,000/-. The complainant has stated that she has paid Rs. 20,00,000/- as part consideration amount towards the said total consideration amount on diverse dates. In the agreement, it was stipulated that the developer will deliver possession and to execute the sale deed within six months from the date of agreement for sale but the developer has failed to keep their promise. On the contrary, developer has deviated the sanctioned building plan for which the complainant approached the Consumer Affairs Department, Government of West Bengal for mediation process but it yielded no result. Finding no other alternative, the complainant on several occasions requested the Opposite Party Nos. 1 and 2 for refund of Rs. 20,00,000/- along with interest thereon @ 18% p.a. but all the requests and persuasions including the legal notice dated 01.04.2017 went in vain. Hence, the complainant approached this commission with prayer for following reliefs, viz. (a) a direction upon the Opposite Parties to refund Rs. 20,00,000/-; (b) to direct the OPs to pay interest @ 18% p.a. from June, 2015 till the date of execution of deed of conveyance; (c) to direct the OPs to pay compensation of Rs. 10,00,000/- for harassment and mental agony; (d) to direct the OPs to pay litigation costs etc. The Opposite Party Nos. 1 and 2 by filing a written version have stated that despite completion of plumbing, the complainant has failed and neglected to pay a sum of Rs. 2,00,000/-. The OP Nos. 1 and 2 have also stated that there was a minor deviation in construction of the building and the same has been regularised in a demolition proceedings under Section 401A and 416 of the Kolkata Municipal Corporation Act, 1980. The OP Nos. 1 and 2 have stated that as there was no deficiency in services on the part of them, the complaint should be dismissed.
The Opposite Party No. 3 and OP Nos. 4 to 8 i.e. the landowners by filing two separate written versions have stated that they have not received any money or benefits whatsoever from the complainant and as such the complainant is not entitled to any refund or any interest from them and as such the complaint should be dismissed against them.
The complainant has tendered evidence through affidavit. The OPs did not file any questionnaire and as such the complaint was proceeded ex parte. However, on the date of final hearing, OP No. 2 in person appeared and has made a prayer to allow him to participate in the final hearing. Applying the principles of law laid down by the Hon'ble Supreme Court in the case reported in (1988) 4 SCC 613 (Modula India -vs- Kamakshya Singh Deo), OP No. 2 was given opportunity to participate in the final hearing. Besides the evidence led by the complainant, the report submitted by Mr. J.N Chaudhury, the Engineer Commissioner for ascertaining the actual measurement of the flat in question was admitted in evidence.
The pleadings of the parties and the evidence on record make it quite clear that the Opposite Party Nos. 3 to 8 are the owners of a piece and parcel of a land measuring about 2 cottahs 8 chittaks and 15 sq. ft. more or less lying and situated at premises No. 24B, Omda Raja Lane, P.S.- Narkeldanga, Kolkata- 700015, Dist- South 24 Parganas within the local limits of ward No. 36 of Kolkata Municipal Corporation.
The landowners in order to raise construction of a G+III storied building over the said property on 08.10.2013 had entered into a development agreement with OP Nos. 1 and 2, the partners of M/s. Rysha Developers, a partnership construction firm. On the self-same date, the landowners had also executed one registered Power of Attorney in favour of OP No. 1 authorising them to raise a construction after obtaining sanction building plan from the Kolkata Municipal Corporation and to enter into agreement for sale with the intending buyers in respect of developer's allocation. Evidently, on 05.03.2014 the OP Nos. 1 and 2 have obtained the sanctioned building plan from the Kolkata Municipal Corporation which was remained valid for 5 years.
Being emboldened with the power conferred upon them, OP Nos. 1 and 2 had entered into an agreement for sale with the complainant to sell one self-contained residential flat measuring about 615 sq. ft. super built up area being flat No. 4A on the 3rd floor in the said newly constructed building at a total consideration of Rs. 24,00,000/-. The clinching evidence led by the complainant supported by documentary evidence speaks that the complainant has already paid Rs. 20,00,000/- as part consideration amount towards the said total consideration amount of Rs. 24,00,000/-. As per clause 9 to the agreement for sale the developer was under obligation to execute the sale deed within a period of 6 months in favour of the purchaser from the date of agreement i.e. within 23.06.2015. It is undisputed proposition of law that the parties are bound by the terms of the agreement. A person who signs a document contain certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect. In a decision reported in AIR 1996 SC 2508( Bharati Knitting Company -vs. - DHL Worldwide Express Courier Division of Airfreight Ltd. ) the Hon'ble Supreme Court has observed thus :
"It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F.Nariman, Ld. Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M.N.Krishanmani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon it own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract"
Clause 9 of the agreement for sale dated 23.12.2014 stipulates as under:
" The Developers herein shall execute the Sale Deed and get the same registered at the cost of the purchaser within a period of 6 (six) month from the date of this agreement in favour of the purchaser."
Evidently, the OP No. 1 has failed to fulfil their part of obligation in handing over the possession and to execute the sale deed as per terms of agreement for sale dated 23.12.2014. On the contrary, from the report of Mr. J.N Chaudhury, High Court Approved Valuer, it would reveal that the built up area of the subject flat is measuring about 399,323 sq. ft. (more or less). Therefore, if super built up area of 25% is added, the flat in question will not be more than 500 sq. ft. in size. In such a situation, it is palpably clear that there was deviation in the sanctioned building plan and in their written version the OP Nos. 1 and 2 have admitted that a demolition proceeding under Section 401A and 416 of the KMC Act, 1980was initiated against them. In that perspective, the complainant has rightly claimed refund of the amount along with compensation and interest etc because when there is deviation of the sanctioned building plan, it certainly amounts to deficiency in services under Section 2 (1)(g) read with Section 2(1)(o) of the Act. In such a situation, a purchaser shall have liberty either to get the deed executed in favour of him or to claim refund of the amount paid by him along with interest and compensation. Considering the facts and circumstances, it appears to us that a compensation in the form of simple interest as per prevalent bank interest, i.e. @ 9% p.a. from the date of each payment till its realisation will sub-serve the object of justice. Under compelling circumstances, complainant had to lodge the complaint for which she is entitled to litigation costs which we quantify at Rs. 10,000/-.
For the reasons aforesaid, we dispose of the complaint on contest against OP Nos. 1 and 2 and dismissed ex parte against the OP Nos. 3 to 8 with following directions:
(i) The Opposite Party Nos. 1 and 2 are jointly and/or severally directed to refund Rs. 20,00,000/- in favour of the complainant along with compensation in the form of simple interest @ 9% p.a. from date of each payment till its realisation;
(ii) The Opposite Party Nos. 1 and 2 are jointly and/or severally directed to pay Rs.10,000/- to the complainant as costs of litigation;
(iii) The above payments should be made within 45 days in terms of the above order.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER