State Consumer Disputes Redressal Commission
Lali Guha vs M/S. Siddhi Binayak Apartment, Rep. By, ... on 20 January, 2020
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/378/2015 ( Date of Filing : 30 Sep 2015 ) 1. Lali Guha W/o, Lt. Biswajit Guha, Siddhi Binayak Apartment, Flat No. - 2A, 1, LIC. Park, P.O - Sodepur, P.S - Khardah, Kolkata - 700 110, Dist - North 24 Pgs. ...........Complainant(s) Versus 1. M/s. Siddhi Binayak Apartment, Rep. by, its Partners. 1, LIC Park, P.O - Sodepur, P.S - Khardah, Kolkata - 700 110, Dist - North 24 Pgs. 2. Sri Anil Chandra Paul S/o, Lt. Umesh Chandra Paul, West Arunachal, P.O - Sodepur, P.S - Khardah, Dist - North 24 Pgs. 3. Smt. Jhumur Paul W/o, Sri Anil Chandra Paul, West Arunachal, P.O - Sodepur, P.S - Khardah, Dist - North 24 Pgs. 4. Smt. Simli Paul D/o, Sri Anil Chandra Paul, West Arunachal, P.O - Sodepur, P.S - Khardah, Dist - North 24 Pgs. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Ms. Soma Chatterjee, Advocate For the Opp. Party: Mr. H. Brahmachari., Advocate Mr.H.Brahmachari, Advocate Mr.H.Brahmachari, Advocate Mr.H.Brahmachari, Advocate Dated : 20 Jan 2020 Final Order / Judgement PER: HON'BLE 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 a purchaser against a partnership construction firm and its partners (developer/promoter) on the allegation of deficiency in services on the part of them in a dispute of housing construction.
In a nut shell, complainant's case is that being desirous to purchase of a flat for residential purpose, he purchased one flat measuring about 1450 sq. ft. super built up area being flat No. 2A on the 2nd floor in a building christened 'Siddhi Vinayak Apartment' together with proportionate undivided share in the impartiable land lying and situated at holding No. 72, Ramchandrapur (LIC Park), P.O.- Sodepur, P.S- Khardah, Kolkata- 700110, Dist- North 24 Parganas within the local limits of Ward No. 23 of Panihati Municipality at a total consideration of Rs. 36,25,000/- by way of registered deed of conveyance dated 01.10.2013 from Opposite Party No. 1 represented by OP Nos. 2 to 4. The complainant states that at the time of selling and handing over the possession of the flat in question there were some unfinished constructional work in common areas of the apartment which the OPs promised to complete. After purchasing the flat the complainant took possession and started living thereon. However, after taking possession the complaint realised that she has not been provided with common facilities and amenities as mentioned in deed of conveyance. On several occasions the complainant requested the OPs for providing common facilities and amenities as mentioned in the deed of conveyance and to complete the unfinished work of the apartment but no steps to that effect has been taken. The complainant has alleged that as per deed of conveyance the developer was under obligation to provide her the flat measuring about 1450 sq. ft. super built up area but in reality a flat measuring about 1360 sq. ft. was handed over to her. The complainant has also stated that till now completion certificate has not been provided to her. The complainant has further stated several deficiencies in services on the part of OPs in paragraph 32 of the petition of complaint which are mostly relating to common facilities and amenities. The complainant has submitted that the OPs have not yet fully completed the construction work and in order to deprive the complainant from the use of enjoyment of common areas did not take any measure to remove the defects. Hence, the complainant has approached this commission with the instant complaint with prayer for following reliefs, viz.- (a) an order directing the OPs to refund the excess consideration amount of Rs. 2,25,000/- for shortfall area of 90 sq. ft.; (b) an order directing the OPs jointly and severally to provide the main entrance as per sanctioned plan; (c) to direct the OPs jointly and severally to handover the duplicate key of the flat of the complainant; (d) an order directing the OPs jointly and severally to handover the completion certificate; (e) an order directing the OPs to pay compensation of Rs. 2,00,000/- for mental anxiety and Rs/ 2,00,000/- for harassment aggregating Rs. 4,00,000/-; (f) to pay Rs. 50,000/- as litigation costs etc. The Opposite Party Nos. 1 to 4 by filing a joint written version have stated that the super built up area was measured and possession was given to the complainant with full satisfaction and there is no shortfall in the area of the flat. OPs have also stated that the complainant cannot enjoy the entire domain of the apartment and she must confine herself with her property. It has further been stated that the boundary wall was not raised due to the objection given by the flat owners for keeping beautification of the project and for common access of the car owners. The OPs have further stated that they have applied to the Municipality for issuance of Completion Certificate but it is yet to be received by them. The OPs have submitted that as there was no deficiency in services on the part of them the complaint should be dismissed.
Both the parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. Besides the same, the parties have relied upon several documents including the report of Ld. Engineer Commissioner appointed in this case. At the time of final hearing on behalf of OPs, a brief notes of argument has been filed.
The pleadings of the parties and the evidence on record make it abundantly clear that the OP Nos. 2 to 4 formed a partnership firm namely 'M/s. Siddhi Vinayak Apartment' having its office at LIC Park, Sodepur, Kolkata- 700110 and decided to construct the multi-storied (G+5) storied building in a plot of land measuring about 8 cottahs 12 chittaks 36 sq. ft. lying and situated at Municipal holding No. 72 Ramchandrapur (LIC Park), P.O.- Sodepur, P.S- Khardah, Kolkata- 700110, Dist- North 24 Parganas within the local limits of Ward No. 23 of Panihati Municipality.
Accordingly, they have obtained a sanctioned building plan from Panihati Municipality vide plan No. 712 dated 23.12.2011. After completion of construction, the OPs sold away one flat measuring about 1450 sq. ft. super built up area being flat No. 2A on the 2nd floor in the said building in favour of complainant at a total consideration of Rs. 36,25,000/-.
Admittedly, on payment of entire consideration amount and on execution of deed of conveyance, the complainant took possession of the flat in question. The complainant has alleged that at the time of selling and handing over the possession of the subject flat there were some unfinished constructional work in the common areas of Siddhi Vinayak Apartment. The complainants has alleged that on several occasions they requested the OPs for providing the common facilities and amenities as mentioned in the deed of conveyance and to complete the unfinished work of the apartment but it was not heeded to.
The fact remains that prior to filing of the complaint, the complainant did not seek any permission in accordance with Section 12(1)(c)of the Act to initiate 'class action' against the OPs. The evidence on record speaks that there are 20 flat owners and, therefore, it may so happen that the other flat owners are either satisfied or they have no grievances against the developer/promoter. In this regard, the observation of the Hon'ble Supreme Court in the case reported in 2019 (3) CPR 26 (Anuum Hussain and others -vs- Intellicity Business Park Pvt. Ltd. and Ors.) appears to be relevant where it has been observed:
"The primary object behind permitting a Class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested. Without recourse to each of them filling an individual complaint, it is necessary that such a complaint is filled on behalf of or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them therefore will not be maintainable. If for instance, 100 flat buyers/plot buyers in a project have a common grievance against the Builder/Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them. The primary purpose behind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have been the Legislative intent. The terms, 'persons so interested' and 'persons having the same interest' used in Section 12(1)(c) mean, the persons having a common grievance against the same service provider. The use of the words 'all consumers so interested' and "on behalf of or for the benefit of all consumers so interested", in complaint must necessarily be filed on behalf of a common grievance, seeking a common relief and consequent having a community of interest against the same service provider."
Therefore, considering the facts and circumstances when it reveals that prior to lodging the complaint, the complainant did not seek any permission under Section 12(1)(c) of the Act which is a pari materia to order 1 Rule 8 of Civil Procedure Code, the complainant has no authority to claim individual relief in respect of common grievances seeking a common relief. Therefore, in view of the proposition of law and the dictum of the Highest Court of Land, complainant is not entitled to any reliefs relating to common areas and common facilities etc without initiating any 'class action'.
In that perspective, Mr. Rajesh Biswas, Ld. Advocate for the complainant has rightly confined his submission with regard to shortfall of area, Completion Certificate and for not providing duplicate key of the flat in question.
It is well settled that after accepting the entire consideration amount, a developer is under compulsion to fulfil three basic obligations, viz.- (a) to deliver possession; (b) to execute and register the sale deed; (c) to obtain Completion Certificate from the local authority and to handover an authenticate copy of Completion Certificate in order to enable the purchaser to mutate his name in the Assessment Register of the local authority. Admittedly, the developer has handed over the flat in question and also executed the sale deed on 01.10.2013 but yet to obtain Completion Certificate from the Panihati Municipality. Therefore, when it is also statutory obligation on the part of the developer to obtain completion Certificate from the competent authority, and the developer has not yet obtained the same, certainly, the complainant being purchaser is entitled to an order to that effect.
So far as shortfall of area of the flat, in order to determine the question, an Engineer Commissioner was appointed. Mr. Chittaranjan Ghosh, Ld. Engineer Commissioner after inspection at site in presence of Ld. Advocates appearing for the parties has held inspection and submitted a report wherefrom it reveals that after measurement and calculation the super built up area of the said flat was found 1313 sq. ft. but in the deed of conveyance the area of the flat has been mentioned as 1450 sq. ft. super built up area. Therefore, as per report, the developer has provided the complainant (1450 sq. ft.- 1313 sq. ft.) = 137 sq. ft. less area than the area agreed upon. On behalf of OPs a question was put to the Engineer Commissioner as to- "what is measurement of the flat in respect of the carpet area vis-a-vis super built" to which the Ld. Engineer Commissioner replied- "carpet area of the flat was found after measurement to be 1085 sq. ft. more or less and super built up area was found to be 1313 sq. ft. more or less."
Therefore, when the evidence of the Ld. Engineer Commissioner could not be shaken by cross-examination, there is no doubt that the OPs have handed over the flat measuring about 1313 sq. ft. instead of 1450 sq. ft as mentioned in deed of conveyance. However, complainant has prayed for refund of Rs. 2,25,000/- for shortfall of area and as such the complainant is entitled to the said amount. In a decision reported in (2015) 1 SCC 429 (General Motors (India) Pvt. Ltd. -vs- Ashok Ramnik Lal Tolat and Anr.) the Hon'ble Supreme Court has made it clear that when a party has no notice of a claim, if any order is passed that would be contrary to the principles of fair procedure and natural justice. Though the shortfall of area, as per Engineer Commissioners report, is found 137 sq. ft. yet when complainant confined his claim to the extent of Rs. 2,25,000/-, the complainant is entitled to the said amount.
However, the complainant has claimed Rs. 2,00,000/- for unnecessary harassment and unfair trade practice. The basic ingredients of unfair trade practice are:
(i) it must be a trade practice;
(ii) the trade practice must be employed for the purpose of promoting the sale, use or supply of any goods or for the provision of any service; and
(iii) the trade practice adopts any unfair method or unfair or deceptive practice including any of the practices enumerated in Clauses (1) to (6) of Section 2(1)(r) of the Act.
Therefore, any trade practice which is adopted for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, by adopting any unfair method or unfair or deceptive practice has to be treated as "unfair or deceptive practice" for which an action under the provisions of the Act would lie, provided, the complainant is able to establish that he is a consumer within the meaning of Section 2(1)(d) of the Act.
The evidence on record make it quite clear that the OPs have adopted an unfair method in selling out the flat in question at a consideration of Rs. 36,25,000/- on a flat which is measuring about 1313 sq. ft less than 137 sq. ft. as per deed of conveyance. Therefore, this conduct on the part of OPs not only indicates deficiency of service but also an unfair trade practice within the definition of Section 2(1)(r) of the Act. Therefore, in our view, the complainant is entitled to Rs. 50,000/- on account of unfair trade practice adopted by the OPs.
On evaluation on materials on record and having heard the Ld. Advocates appearing for the respective parties it is transpired that the complainant being purchaser hired the services of the OPs on consideration and it is found that the OPs not only deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act but also guilty of unfair trade practice within the meaning of Section 2(1)(r) of the Act. Therefore, the complainant is entitled to some reliefs. Considering the loss suffered by the complainant, we think refund of amount of Rs. 2,25,000/- for shortfall of area, an amount of Rs. 50,000/- for adopting unfair trade practice in the facts and circumstances will meet the ends of justice. So far as compensation is concerned, applying the provisions of Section 14(1) of the Act, we think, in the facts and circumstances, a compensation in the form of simple interest @ 8% p.a. over the amount of Rs. 2,25,000/- from the date of 01.10.2013 till its realisation will meet the ends of justice. Under compelling circumstances the complainant has to approach this Commission for which she is entitled to litigation costs which we quantify at Rs. 25,000/-.
With the above discussion, we disposed of the complaint on contest with the following directions:
(i) The Opposite Party Nos. 1 to 4 are jointly and/or severally directed to refund Rs. 2,25,000/- in favour of the complainant for shortfall of area of the subject flat;
(ii) The Opposite Party Nos. 1 to 4 are jointly and/or severally directed to pay Rs. 50,000/- to the complainant for adopting unfair trade practice in selling the flat of less saleable area;
(iii) The Opposite Party Nos. 1 to 4 are jointly and/or severally directed to pay compensation in the form of simple interest @ 8% p.a. over the amount of Rs. 2,25,000/- from 01.10.2013 till its realisation;
(iv) The Opposite Party Nos. 1 to 4 are jointly and/or severally directed to pay Rs. 25,000/- to the complainant as costs of litigation;
(v) The Opposite Party Nos. 1 to 4 are jointly and/or severally directed to handover the duplicate key of the flat to the complainant within 45 days from the date.
(vi) The above payments should be paid within 45 days in terms of the above order.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER