State Consumer Disputes Redressal Commission
Sri Pinaki Chaudhuri vs Msd Con on 10 July, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/45/2013 1. Sri Pinaki Chaudhuri S/o Late Tarini Chaudhuri, 3A, 3rd Floor, Lake Gardens, P.S. Lake, Kolkata - 700 045. 2. Smt. Sunanda Chaudhuri W/o Sri Pinaki Chaudhuri, 3A, 3rd Floor, Lake Gardens, P.S. Lake, Kolkata - 700 045. ...........Complainant(s) Versus 1. MSD Con A partnership Firm, 8, Lake Avenue, P.S. Tollygunge, Kolkata - 700 029. 2. Sri Bimal Mukherjee S/o Late Birendra Nath Mukherjee, 274, Lake Gardens, P.S. Lake, Kolkata - 700 045. 3. Sri Bikash Mukherjee S/o Late Birendra Nath Mukherjee, 274, Lake Gardens, P.S. Lake, Kolkata - 700 045. 4. Smt. Indira Bhattacharya W/o Sri Tapan Bhattacharya, 109A, Block - F, New Alipore, P.S. New Alipore, Kolkata - 700 053. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Soumendra Roy Chowdhury Ms. Banasree Nandy, Advocate For the Opp. Party: Mr. Prasanta Banerjee, Advocate Dated : 10 Jul 2017 Final Order / Judgement Date of Filing - 04.03.2013 Date of Final Hearing - 29.06.2017 The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of two purchasers (erstwhile tenants) against the developer (Opposite Party No.1) and the landowners (Opposite Party Nos. 2 to 4) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
Succinctly put, Complainants' case is that the OP Nos. 2 to 4 were the owners of a piece of land measuring about 8 cottahs 13 chittaks and 12 sq. ft. with three storied building lying and situated at Premises No.274, Lake Gardens, P.S.- Lake, Kolkata - 700045 within local limits of Ward No.93 of Kolkata Municipal Corporation. The complainants were tenants under OP Nos. 2 to 4 in respect of 1st floor of the said premises measuring 2200 sq. ft. On 10.05.2008, the OP Nos. 2 to 4 entered into an agreement with the OP No.1 to construct a G+4 storied building, car parking space etc. in the said premises subject to negotiation with the tenants. The opposite parties i.e. the developer and the owners agreed to provide a flat measuring about 1298 sq. ft. super built up area on the 3rd floor and a car parking space on the ground floor measuring about 134 sq. ft. at free of cost on ownership basis and it was also agreed that the developer shall bear upto a sum of Rs.2,92,000/- on account of stamp duty and registration costs for execution of Deed of Conveyance. Accordingly, on 10.08.2009 an agreement was executed by and between the parties and the same was duly registered before the Registry Office at Alipore, South 24 Parganas. Thereafter, on completion of the building, a Sale Deed was executed in favour of the complainants on 21.05.2012 and the possession was also handed over to the complainants. However, the complainants alleged that by violating the terms of the agreement, the opposite parties constructed a G+5 storied building thereby diminished the proportionate share or interest of the complainants. Hence, the complainants approached this Commission with prayer for several reliefs, viz. - (a) for a direction upon the opposite parties to pay increased cost of Rs.3,75,362/- for registration; (b) for payment of Rs.72,000/- @ Rs.8,000/- per month for delay of nine months; (c) a sum of Rs.1,50,000/- as compensation; (d) Rs.2,00,000/- for adopting unfair trade practice etc. The OP No.1/developer by filing written version has stated that they have complied all the commitment and handed over the possession of the flat to the complainants after completing the same in all respect and also executed and registered the Deed of Conveyance in favour of the complainants in respect of the flat and car parking space as per terms of the agreement and the complainants received possession of the same and as such the complaint should be dismissed. The OP No.1 has also challenged the maintainability of the proceeding on the ground that no consideration was passed behind the transaction.
The OP Nos. 2 to 4 (landowners) did not contest.
During hearing of the case, both the complainants as well as OP no.1 have tendered evidence on affidavit. They have also given reply against the questionnaires set forth by their adversaries. Both the parties have also relied upon some documents.
Since a question as to maintainability of the proceeding has been raised, it would be proper to deal with the same at first. In their written version, the OP No.1 has stated that the complainants were the tenants and in lieu of tenancy, a flat and one car parking space was provided by them and the complainants did not pay any consideration in respect of the cost of the flat and car parking space or even the OP paid the registration charges as required for the purpose of registration and as such the complainants cannot be termed as 'consumer' as defined in Section 2(1)(d) of the Act. Mr. Prasanta Banerjee, Ld. Advocate for OP No.1 has submitted that since the complainants got a flat and one car parking space without any consideration, the complainants cannot be categorised as 'consumer' and they cannot claim any service from the opposite parties.
Mr. Soumendra Roy Chowdhury, Ld. Advocate for the complainants, on the other hand, has contended that the said point has attained finality by Order dated 22.10.2014 in MA/173/2014.
The Order No.08 dated 22.10.2014 indicates that the OP No.1/developer by filing MA/173/2014 challenge the maintainability of the proceeding on the ground that the complainants were tenants and on negotiation got a flat and car parking space without any consideration and as such the complainants cannot claim themselves to be 'consumers' within the meaning of Section 2(1)(d) of the Act. After hearing both sides, it has been observed that as per clause No.3 of the Agreement, the new flat is to be given free of cost in lieu of vacating their accommodations in the said property and therefore, the surrender of tenancy itself is the consideration and as such the complainants are 'consumers' as defined in Section 2(1)(d) of the Act. Since, this point has already been settled, I have no hesitation to hold that the complainants are 'consumer' as categorised in Section 2(1)(d) of the Act and the complaint is very well maintainable. On perusal of the pleadings and the evidence, it appears that the complaint also does not lack pecuniary and territorial jurisdiction of this Commission.
Now, we shall proceed to consider whether the OPs were deficient in rendering services to the complainants in accordance with Section 2(1)(g) read with Section 2(1)(o) of the Act.
Undisputedly, OP Nos. 2 to 4 were the owners by inheritance in respect of a plot of land with a three storied building lying and situated at Premises No.274, Lake Gardens, P.S.- Lake, Kolkata - 700045 within the local limits of Ward No.93 of Kolkata Municipal Corporation. The complainants were tenants under OP Nos. 2 to 4 in respect of 1st floor of the said premises measuring 2200 sq. ft. On 10.05.2008, the OP Nos. 2 to 4 entered into an agreement with the OP No.1/developer to construct a G+4 storied building, car parking space etc. in the said premises subject to negotiation with the tenants. The opposite parties i.e. the developer and the owners agreed to provide a flat measuring about 1298 sq. ft. super built up area on the 3rd floor and a car parking space on the ground floor measuring about 134 sq. ft. and the proportionate area of the premises at free of cost on ownership basis and it was also agreed that the developer shall bear upto a sum of Rs.2,92,000/- on account of stamp duty and registration costs for execution of Deed of Conveyance.
It is also not in dispute that on 10.08.2009 an agreement to that effect was executed by and between the parties and the same was duly registered before the Registry Office at Alipore, South 24 Parganas on 11.08.2009. Thereafter, on completion of the building, a Sale Deed was executed in favour of the complainants on 21.05.2012 and the possession was also handed over to the complainants.
However, the complainants alleged that by violating the terms of the agreement, the opposite parties constructed a G+5 storied building in place of G+4 storied building as per terms of Agreement for Sale and thereby diminished the proportionate share or interest of the complainants in the said premises.
Mr. Soumendra Roy Chowdhury, Ld. Advocate for the Complainants has drawn my attention to the reverse side of the plan approved by the Kolkata Municipal Corporation and submitted that after Agreement for Sale executed by the opposite parties, the opposite parties suppressing the entire fact to the complainants obtained approval of G+5 storied building from the Corporation. He has further submitted that in the Agreement for Sale registered on 11.08.2009, the building was shown as G+4 but during making Conveyance Deed and upon getting possession, the complainants are found the building to be of G+5 storied which means that the opposite parties have caused illegal construction of one extra floor in respect of the building deviating from the original plan of G+4 storied building.
Mr. Prasanta Banerjee, Ld. Advocate for the OP No.1, on the contrary has argued that the building was constructed as per sanctioned plan obtained from the Corporation and as such the Completion Certificate was given by the Corporation in the month of September, 2012. He has also drawn my attention to the recital of Page - 14 of the Register Deed of Conveyance dated 21.05.2012 and submitted that in accordance with clause(r) of the said Agreement, the complainants, who were tenants, got a flat of 1298 sq. ft. and a car parking space without any consideration are not entitled to any relief, as prayed for.
It is trite law that the parties are bound by the contents of the registered Deed of Conveyance. Admittedly, the complainants got a flat of 1298 sq. ft. being Flat No.3A on the 3rd floor and a car parking space on the ground floor at Premises No.274, Lake Gardens, Kolkata - 700045 absolutely free of cost and on ownership basis. Now, clause (r) provides - "The tenants/transferees neither have nor shall claim from the owners and the developer and/or from other co-owners any right, title or interest in any other part or portion of the land and/or the building save and except the said flat/unit and the rights, properties appurtenant thereto and the rights, benefits and properties hereunder transferred and conveyed and the owners and the developer shall be entitled to deal with the same in any manner whatsoever and the party of the 2nd part herein shall not be entitled to claim anything from the owners or other co-owners thereof".
The contents of Deed of Conveyance dated 21.05.2012 make it absolutely clear that the developer has constructed a G+5 storied residential building in the premises. It is quite difficult to swallow that the complainants without ascertaining the contents of the Deed of Conveyance put their signatures.
Therefore, considering the pleading of the parties and the evidence on record including the documents available with the record, I do not find anything to hold that the opposite parties were deficient in rendering services to the complainants. So, though the complainants are 'consumer' under the provisions of the Act yet as there was no deficiency on the part of the opposite parties, the complaint must fail.
Consequently, the petition of complaint is dismissed on contest against OP No.1 and ex parte against OP Nos. 2 to 4. There will be, however, no order as to costs.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER