State Consumer Disputes Redressal Commission
M/S. Annapurna Developers & Others vs Sri Ajit Kr. Saha & Another on 22 August, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/95/2021 ( Date of Filing : 01 Nov 2021 ) (Arisen out of Order Dated 10/01/2020 in Case No. Complaint Case No. CC/73/2013 of District North 24 Parganas) 1. M/s. Annapurna Developers & Others AD/183, Rabindrapally, P.O.- Prafulla Kanan, Krishnapur, Kolkata- 700 101. 2. Sri Sandip Sen S/o, Lt Bijoy Chandra Sen. 40C/H/18/18, Upendra Chandra Banerjee Road, Kolkata- 700 054. 3. Sri Arun Das S/o, Lt Gouranga Chandra Das. 40C/H/11/12, Upendra Chandra Banerjee Road, Kolkata- 700 054. ...........Appellant(s) Versus 1. Sri Ajit Kr. Saha & Another 1063, Dakshindari Road, P.S.- Lake Town, Kolkata- 700 048. 2. Sri Sukhen Chandra Saha S/o, Binod Behari Saha. 1063, Dakshindari Road, P.S.- Lake Town, Kolkata- 700 048. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER PRESENT: Dated : 22 Aug 2022 Final Order / Judgement SAMIKSHA BHATTACHARYA, MEMBER
The instant appeal has been directed by the Appellants against the final order/judgment dated 10.01.2020 passed by Ld. DCDRC, North 24 Parganas in CC/73/2013.
The facts of the case in brief are that the Respondents/complainants(hereinafter referred to as 'complainants'), by virtue of registered deed of sale by book no. 1, volume no. 58 being no. 3168 for the year 1995 before the office of District Registrar at Barasat, were the absolute joint owners in respect of all that piece and parcel of land admeasuring about 2 cotthas 8 chhittacks lying and situated at Mouza Krishnapur, J.L. No. 17, R.S. No. 180 Touzi No. 228/229 comprised in C.S. Dag No. 5083, R.S. Dag No. 3094 under R.S. Khatian 258 within the jurisdiction of Baguiati Police Station, at holding No. R.G.M/162/849 in RGM /103/2845 within the local limit Ward No. 32 of Rajarhat Gopalpur Municipality in District North 24 Parganas which is described in the petition of complaint. The complainants, with a desire to erect multi storied building over their property, entered into a development agreement on 3rd January, 2010 with the Appellants/ OPs(hereinafter referred to as 'OPs') with certain terms and conditions as embodied therein and thereby the complainants, being the landlords, delivered the vacant khas peaceful possession of the Schedule A property in favour of the OPs. In the said development agreement dated 03.01.2010, it was agreed by and between the parties that three nos. of self contained flats, each of 750 sq.ft. more or less carpet area, in the first floor would be allocated to the owners as mentioned in the Schedule B therein. Furthermore, the owners shall also be entitled to get a sum of Rs. 5,00,000/- only as Refundable Security Deposit and out of this amount Rs. 1,00,000/- would be paid at the time of execution of the agreement and Rs. 4,00,000/- would be paid at the time of registration of General Power of Attorney. After executing the said development agreement , complainants executed General Power of Attorney on 26.02.2010 in favour of the OPs No. 2 & 3 i.e. the partners of OP No. 1. Thereafter the complainants vacated the Schedule A land and handed over the same to the OPs. In accordance with the building plan duly sanctioned by the concerned Rajarhat Gopalpur Municipality, the OPs constructed a multi storied building containing several self-contained flats and entered into agreement for sale with the prospective buyers to sell out the flats as allocated in developers' allocation. The complainants have stated that the construction of flats completed on 17.10.2012 but not with the specification as mentioned in the development agreement and in violation with the agreement the OPs handed over three flats admeasuring 2042 sq.ft. super built up area instead of 2250 sq.ft. carpet area in total. To escape from its deficiency of service, the OPs handed over a flat being No. Flat No. B having area of more or less 706 sq.ft. , another flat being No. Flat No. C having area more or less 757 sq.ft. and the 3rd flat being No. Falt D having area more or less 679 sq.ft. with a verbal undertaking to the complainants to hand over another flat having 450 sq.ft. by October, 2012 in other floor and thereafter the complainants will refund the security deposit. Since the OPs did not handed over any flat as mentioned above the complainants sent an Advocate's letter dated 19.12.2012 asking them to allot specified area of three flats as per development agreement. On 15.01.2013 , the OP No. 3 sent a letter to the complainants asking them to refund the security deposit. Then the complainants again sent a letter dated 30.01.2013 through their advocate with request to discharge the obligation of the OPs. Since the OPs handed over less area to the complainants, the complainants filed the complaint being No. CC/73/2013 praying for direction upon OPs to hand over the rest part of owners' allocation having 450 sq.ft. carpet area within a specified period alongwith prayer for direction upon OPs jointly and/or severely to complete all the rest constructional work in respect of owners' allocation and the rest part of the building standing on Schedule A land within a specified period alongwith direction upon the OPs to pay penalty to the tune of Rs.4,00,000/- to the complainants for mental trauma and harassment caused for the deficiency and negligent service by the OPs.
The OPs remained absent on three consecutive dates of argument before the Ld. District Commission but they have filed the written version before the Ld. District Commission. The OPs had claimed some dues as per terms and conditions of development agreement. OPs have submitted a claim of Rs. 12,00,000/- out of which Rs. 5,00,000/- remained lying with the complainants as security deposit . Rs. 2.80 lakhs as cost of extra work and Rs. 4.20 lakh for installation of transformer and electric meter since 30% of installation expenses to be borne by the complainants as per terms and conditions of development agreement.
The Learned District Commission passed its order on 10/01/2020 which is reproduced as under :
"The OPs shall have to pay an amount of the value of 618 sq ft. area of flat @ Rs. 3,000/- per sq.ft (i.e. Rs. 18,54,000/-) to the complainants.
The OPs are further directed to pay Rs. 50,000/- as compensation for causing mental harassment and agony to the complainants alongwith Rs. 10,000/- as litigation costs.
The complainant shall have to refund Rs. 5 lakhs lying with them and Rs. 2.80 lakhs as the extra work done by the OP beyond the terms and conditions and the cost for installation of transformer and electrical meter Rs. 70,000/-, the total amount being Rs. 8,50,000/- to be paid to the OPs by the complainants.
The total actual payment to be made by the OPs to the complainants is Rs. 10,64,000/ (Rs. 19,14,000 - Rs.8,50,000). OPs are directed to pay the balance decretal amount of Rs. 10,64,000/- to the complainants within 40 days from this day.
Failure to make the whole payment within the prescribed period by the OPs shall have to carry @ 8% p.a. interest on the balance decretal amount of Rs. 10,64,000/- from the date of filing of the case on 19/02/2013 till the date of full realization of the balance decretal amount in the execution case. The instant case being No. CC /73/2013 is allowed on contest with costs."
Being aggrieved by and dissatisfied with the order of the Ld. District Commission the OPs 1 & 2 filed the instant appeal.
There is a long chequered history. Firstly, the complainants filed the consumer complainant being No. CC/73/2013 before the Ld. District Commission, North 24 Parganas on 19.02.2013 and the judgment was passed by the DCDRC on 24.10.2013. The judgment of Ld. District Commission is reproduced as under:
"that the complaint dated 19.02.13 is allowed on contest with cost of Rs.10,000/- against the opposite parties.
The opposite parties are directed to hand over further 450 Sq. ft. carpet area to the complainants within 2 months from the date of this order, in default they will have to pay the price thereof at the rate of Rs. 3,000/- per Sq.ft. after adjusting Rs.5,00,000/- lying deposited with the complainants, within the same period.
Failing to comply with any portion of this order the opposite parties will be liable to pay punitive damage at the rate of Rs. 100/- per day till compliance and the amount if realized, will be deposited to the State Consumer Welfare Fund."
Being aggrieved by the order passed on 24.10.2013 the OPs preferred an appeal before this Commission being No. F.A. 99/2014. The appeal was allowed on contest and the order of the F.A. 99/2014 is as follows:-
"that the instant appeal is allowed on contest but without any order as to cost.
the Judgement/ Final Order dated 24th October, 2013 passed by the Ld. DCDRF,North 24 Parganas at Barasat in Consumer Compliant No. 73/2013 is hereby set aside.
The case is remitted back on remand to the Ld. District Forum below with a direction upon the parties to appear before the said authority on 08.10.2015. The Ld. DCDRF will provide an opportunity to the Complainants to pay before the Ld. District Forum for appointment of an Engineer Commissioner to survey measurmental area of the flat in question and submit report as per provision of law and thereafter the Ld DCDRF will proceed to decide as expeditiously as possible in accordance with law"
Accordingly, the complaint case was remitted back to the Ld. District Commission and in compliance with the order of this State Commission, Engineer Commissioner was appointed. Ld. Engineer Commissioner has submitted his report on 29.02.2016 and since the complainants has raised objection, the Engineer Commissioner, as per order of the District Commission, has submitted his rectified report on 06.06.2016.
Ld. Advocate for the appellants has submitted that the Engineer Commissioner's report (Annexure-G, running 105 of memo of appeal) was submitted with preprinted sketch. Since the complainants raised objection against the Engineers Commissioner's report, the Engineer Commissioner has filed rectified report which is annexed as Annexure-H in running page 113 in the memo of appeal. Ld. Advocate for the appellants has submitted that the second report is same as first report. Thereafter, the OPs filed one application praying before the Ld. District Commission to cross examine the said Engineer Commission:
Ld. Advocate for the complainants, in course of argument, before this Commission, has submitted that with the second report, the Engineer Commissioner has not annexed map with his report . But in the memo of appeal appellants have annexed the map according to his sweet will. On the date of acceptance of the Engineer Commissioner's report none appeared on behalf of the OPs. It is reflected in order no. 35 dated 09.08.2018 passed by the Ld. District Commission in connection with CC/73/2013 that since the report dated 29.02.2016 submitted by the Engineer Commissioner does not match with the field report it cannot be accepted. Thereafter, as per order of the Ld. District Commission the Engineer Commissioner filed the rectified report on 06.06.2016. Since the report dated 06.06.2016 submitted by the Engineer Commissioner is tallied with the field report, the report dated 06.06.2016 was accepted. Ld. District Commission fixed the date on 26.11.2018 for argument.
Ld. Counsel for the complainants has submitted that in the memo of appeal the appellants have not mentioned the ground of Appeal in the Memo of Appeal. It is not a memo of appeal rather it is mere statements of the appellants. The matter is pending since 2013. The dispute is with regard to owner's allocation as mentioned in the internal page 4 of the development agreement by and between the owners and developers where it was agreed term that the owners shall be entitled to get three residential flats on the first floor of the proposed building having carpet area of 750 sq.ft. each together with proportionate undivided interest or share on the land alongwith all proportionate rights on all common areas and facilities of the proposed building in fully complete and habitable in nature together with the facilities of water and electricity connection. Since the developers had provided carpet area to the owners, the owners/complainants are entitled with compensation. Since there is disparity in the field note of the Engineer Commissioner's report dated 29.02.2016, as per order of the Ld. District Commission rectified report was submitted by the Engineer Commissioner on 06.06.2016. Therefore, the compensation was awarded.
Upon hearing both the parties and on perusal of the record, we find that truly there is no ground in the memo of appeal. Apart from this the dispute is as regard to less carpet area provided to the landowners/complainants. The Engineer Commissioner has submitted his report mentioning that there is less carpet area of 618 sq. ft. Since all the flats have been sold out there is no other option other than to compensate the complainants/landowners by awarding compensation for providing less carpet area to them.
In course of argument before this Commission, Learned Advocate for the OPs has raised objection against the Engineer Commissioner's report filed on 06.06.2016. But that report was accepted on 09.09.2018 since the OPs were absent. The rectified report of the Engineer Commissioner was accepted and not challenged by the OPs before this Commission by filing the revision petition. Therefore, the order dated 09.08.2018 attains its finality. The allegation made by the OPs that the Engineer Commissioner's report is pre-printed one cannot be sustainable since OPs have signed on that report. The OPs have not raised any objection against that report. The OPs did not avail any opportunity to challenge the report by way of filing the revision petition or by filing the questionnaire against the Engineer Commissioner's report. The Complainants have filed the online copy of the order sheets passed by Ld. District Commission. From the order sheets, it reflect that on 15.01.2019. '....Today the OP has filed a petition praying for cross-examine the Ld. Engineer Commissioner by way of questionnaire, but the record speaks that several opportunities were given to the OP for hearing of the Engineer Commissioner's report for acceptance of the same, but the OP choose not to present in any occasion for the said hearing. Having no other alternative this Ld. Forum accepted the said report on 09.08.2018, and fixed argument on 26.11.2018.' Thereafter OPs again filed a petition on 18.09.2019 for recalling the witness being the Engineer Commissioner for the proper adjudication. This petition was also rejected by Ld. DCDRC vide its order no. 41 dated 18.09.2019. Therefore, the Learned District Commission has passed its order dated 10.01.2020 based on the Engineer Commissioner's report dated 06.06.2016 accordingly. Surprisingly, neither the order dated 15.01.2019 nor the order dated 18.09.2019 has been challenged by the OPs by filing the revision petition before this Commission. Now, they have argued, at the time of hearing of the appeal, that they were not given any chance to cross examine the Engineer Commissioner which is not sustainable in law.
The case was remitted back to the Learned District Commission by giving an opportunity to file the Engineer Commissioner's report for ascertaining the measurement of the flat area provided to the Complainants. As per order of this Commission dated 16.09.2015 the Learned District Commission was pleased to appoint and Engineer Commissioner and directed him to file his report. Accordingly, the Engineer Commissioner filed his report. Since the complainants found anomalies in the said report the Engineer Commissioner was requested to file the rectified report. Accordingly, the Engineer Commissioner filed his rectified report on 06.06.2016 which was accepted in presence of both the parties. That order has not been challenged and the judgment dated 10.01.2020 was passed as per observation of the Engineer Commissioner's report.
Therefore, we find no infirmity or irregularity in the order passed by the Learned District Commission. There is no need to interfere with the order passed by the Learned District Commission by invoking the appellate jurisdiction of this Commission.
In view of above, the order dated 10/01/2020 passed by Learned DCDRC, North 24 Parganas, Barasat in C.C. 73/2013 is hereby affirmed.
The appeal is dismissed on contest.
There is no order as to costs.
Thus the appeal is disposed of accordingly. [HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER