State Consumer Disputes Redressal Commission
Sri Tirtha Bagchi vs Sri Mihir Ranjan Chakraborty on 6 April, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/282/2014 1. Sri Tirtha Bagchi S/o Late Dhruba Jyoti Bagchi, 1/2/1, K.P. Roy Lane, P.S.- Garfa, Kolkata - 700 078. ...........Complainant(s) Versus 1. Sri Mihir Ranjan Chakraborty S/o Late Lokesh Chandra Chakrabarty, 40/1A, Prince Golam Hossain Shah Road, P.S. - Jadavpur, Kolkata - 700 032. 2. Smt. Anjana Chakrabarty W/o Mihir Ranjan Chakrabarty, 40/1A, Prince Golam Hossain Shah Road, P.S. - Jadavpur, Kolkata - 700 032. 3. M/s. M.S. Construction 71, Jadavpur University Housing Society, Panchasayar, P.S. - Panchayasayar, Kolkata -700 094. 4. Sri Sudhir Kumar Kar S/o Lt. Pratap Chandra Kar, partner, M/s M.S. Construction, 71, Jadavpur University Housing Society, Panchasayar, P.S. - Panchayasayar, Kolkata -700 094. 5. Sri Pallab Kumar Datta S/o Lt. Pabitra Kanta Datta, partner, M/s M.S. Construction, A-200, Survey Park, P.S. - Survey Park, Kolkata -700 094. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Arindam Peyada Mr. Partha Sarothi Kashyapi Ms. Paromita Samanta , Advocate For the Opp. Party: Mr. Abhijit Chatterjee, Advocate Mr. Abhijit Chatterjee, Advocate Mr. Abhijit Chatterjee, Advocate Mr. Abhijit Chatterjee, Advocate Mr. Abhijit Chatterjee, Advocate Dated : 06 Apr 2017 Final Order / Judgement Date of filing : 19.08.2014 Date of hearing : 24.03.2017 The instant complainant under Section 17 ( wrongly mentioned U/s. 12 ) of the Consumer Protection Act, 1986 ( for brevity, "the Act" ) is at the instance of an intending purchaser against the land owners and developer with the allegation of deficiency of services on the part of him in a consumer dispute of housing construction.
Cut short of details, complainant's case is that on 03.06.2013 he entered into an agreement for sale to purchase one self-contained flat measuring about 1217 sq.ft. being flat no. 302 on the 3rd floor along with one covered car parking space being no. G-1 on the ground floor measuring about 130 sq. ft. together with undivided impartable proportionate share or interest of the said premises, lying and situated at premises no. 83, Madurdaha, P. S. Tiljala, Kolkata - 700 107,District - South 24 - Parganas within the local limits of Ward No. 108 of Kolkata Municipal Corporation at a total consideration of Rs. 45,59,500/-. The Complainants have already paid a part consideration of amount of Rs.39,99,500/-. The complainants submits that he is ready and willing to pay the balance amount of Rs. 5,60,000/-. It was agreed that the OPs will deliver the subject property by February, 2014 and it was stipulated that in case of failure to comply with the terms of the agreement, the OP will be liable to pay damages @2% p.m. on the amount already paid. Due to non-fulfilment of the terms and obligations, complainants have come up in this Commission with the following reliefs, viz. - (a) to direct the OPs to execute and registered the deed of conveyance ;(b) to direct the OPs to hand over the possessions of the flat and garage ; (c) to direct the OPs to pay in 2% p.m over the amount of Rs. 39,99,500/- ; (d) to pay Rs. 2,00,000/- as compensation and Rs.50,000/- as litigation cost.
The OPs by filing a joint written version have admitted that the complainant has paid Rs. 39.99,500/- to them as part consideration amount but they denied that there was any negligence on the part of them and it is stated that due to heavy water logging in the area, the OPs could not carry out their work properly for almost 3 to 4 months as no good vehicle could carry the raw materials to the construction site. The OPs have further stated that application for Completion Certificate from the Corporation has already been made on 09.01.2015.
On the basis of aforesaid pleadings, the following points emerges for consideration :-
(1) Is the complainant a 'Consumer' as defined in Section 2(1)(d) of the Act ?
(2) Are the OPs deficient in rendering services to the complainant as per Section 2(1)(g) and 2(1)(o) of the Act?
(3)Is the complainant entitled to relief or reliefs,as prayed for ?
In order to substantiate their case, complainant has relied upon the contents of the petition of complaint supported by affidavit. On the other hand, on behalf of OPs, Shri Mihir Ranjan Chakraborty, land owner (OP No.1) has tendered evidence on affidavit. Both the parties have filed reply against the questionnaires set forth by their adversaries. The parties have also relied upon some documentary evidence.
On the basis of the materials available on record, we shall proceed to discuss and see how far the complainant has been able to prove his case.
Point Nos. 1 to 3 :
All the three points are taken up together for the sake of convenience and to avoid repetition.
The overwhelming evidence on record goes to show that OP Nos. 1 and 2 are owners in respect of 4 cottahas, 12 chittacks and 35 sq.fts. of land lying and situated at 83, Madurdaha, P. S. Tiljala, Kolkata - 700 107,District - South 24 - Parganas within the local limits of Ward No. 108 of Kolkata Municipal Corporation. It is not in dispute that they had entered into an development agreement with OP NO.3 for raising a G+ 3 storied building thereon. Accordingly, they have also executed a Power of Attorney to that effect. Be it mentioned that OP Nos. 4 and 5 are partners of OP No.3/developer construction firm. It is admitted that on 03.06.2013, the complainant has entered into an agreement with the OPs to purchase one self-contained flat measuring about 1217 sq.ft. being flat no. 302 on the 3rd floor along with one covered car parking space being no. G-1 on the ground floor measuring about 130 sq. ft. together with undivided impartable proportionate share or interest of the said premises, lying and situated at premises no. 83, Madurdaha, P. S. Tiljala, Kolkata - 700 107,District - South 24 - Parganas within the local limits of Ward No. 108 of Kolkata Municipal Corporation at a total consideration of Rs. 45,59,500/-. It is also not in dispute that the Complainants have already paid a part consideration of amount of Rs.39,99,500/- and he is ready and willing to make payment of balance consideration amount of Rs. 5,60,000/-. Therefore, it is quite apparent that the complainant being 'Consumer' as categorised U/s. 2(1)(d) of the Act hired the service of the OPs upon payment of consideration amount.
Now, we shall proceed to see whether the OPs are deficient in rendering the services to the complainant. It is trite law that the parties are bound by the agreement. In paragraph 5 of a decision reported in II (1996) CPJ 25 ( Bharti Knitting Company -vs. - DHL World Wide Express Courier Division of Air Freight Ltd. ) the Hon'ble Supreme Court has observed - " 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 ".
The Clause - 7 of the agreement between the parties postulates -
"That the owners and the developer jointly undertake to execute and registered the Deed of Conveyance in favour of the purchaser and or his nominee/nominees at the instance of the purchaser through the Ld. Advocate of the purchaser and the possession of the said Second Schedule Property would be delivered at the time registration by the month of February, 2014 and if, they would fail and/or neglected to complete the same, than the purchaser will be at liberty to take appropriate legal action against them".
Again, Clause No.20 of the agreement runs as follows :
"If the Third Party neglects to hand over the possession of the said flat and car parking space to the purchaser within the period mentioned herein provided be made by the purchaser regularly. The purchaser will extend the time only upto the extends of three months and thereafter the Third Party will be liable to pay damages at the rate 2% p.m. on the amount already paid by the purchaser to the developer upto the ext end to give notice for handing over the possession to the purchaser".
The materials on records indicate that the OPs were under obligation to hand over and registered the subject property by February, 2014. The OPs took a plea that due to water logging in the locality for about three to four months the raw materials could not be carried on the construction site. In this regard, the OPs have failed to produce any document whatsoever. On question no.5 of the complainant - " Can you show any notification of Municipal Authority for closing of the road continuously and also for which months" to which it was replied - " We have shown no negligence in doing the work ......". The reply given by the OPs is evasive one and it signifies that the OPs tried to avail the answer. Therefore, it shall be presumed that the OPs took such plea in order to save them from payment of damages @2%.
Considering the evidence on record, it is crystal clear that the OPs were deficient in rendering services to the complainant in accordance with Section 2(1)(g) read with Section 2(1)(o) of the Act.
In view of the above, the complainant is entitled to relief to the extent that he will get an order of delivery of possession and execution of Deed of Conveyance on payment of balance of Rs. 5,60,000/-. The complainant do get damages @2% p.m. over the amount of Rs. 39,99,500/- from 01.03.2014 till 08.01.2015. Considering the harassment and mental agony suffered by the complainant, I think he is entitled to compensation and taking into consideration the loss suffered by him, a compensation of Rs. 1,00,000/- and a litigation cost of Rs. 10,000/- would meet the ends of justice.
Therefore, all the three points are decided in the affirmative and disposed of accordingly.
Consequently, the instant complainant is allowed on contest with cost of Rs. 10,000/- to be paid by the OPs in favour of the complainant.
The OPs are jointly and severally directed to hand over the possession of the subject flat and garage and also to execute the sale deed in favour of the complainant as mentioned in the Schedule B to the petition of complaint on receipt of balance consideration of Rs. 5,60,000/- within 60 days from this date otherwise the complainant shall have liberty to get the deed executed through the machinery of this Commission and in that event the balance amount of Rs. 5,60,000/- to be deposited in the State Consumer Welfare Fund of this Commission.
The OPs are also jointly and severally directed to make payment of compensation of Rs. 1,00,000/- and 2% damages p.m. over the amount of Rs. 39,99,500/- from 01.03.2014 till 08.01.2015 and also to pay the litigation cost of Rs. 10,000/-within one month from date, in default the amount shall carry interest @ 9% p.a. till its full realisation.
The Registrar of the Commission is direct to send a copy of this order to the parties to this case at once free of costs for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER