State Consumer Disputes Redressal Commission
Sri Swapan Kumar Roy vs M/S. Sree Krishna Developers on 6 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/114/2012 1. Sri Swapan Kumar Roy 158A ,Dr. Suresh Chandra Banerjee Road , Beliaghata , Kolkata - 700010 2. Sri Sankar Roy Phase - IV , Flat No. D 9/11 , Nirava Co-opretive Society , Kolkata - 700107 3. Smt Mukul Saha W/o Sri Pradip Saha 158A ,Dr. Suresh Chandra Banerjee Road , Beliaghata , Kolkata - 700010 4. Smt. Arpita Das w/o Sri Suman Das 1/2, K.G.Bose Sarani , P.S. - Beliaghata , Kolkata-700085 ...........Complainant(s) Versus 1. M/s. Sree Krishna Developers 43B, Narkeldanga Main Road, P.S. Baliaghata, Kolkata - 700 054. 2. Sri Gopal Agarwal, Partner of M/S Sree Krishna Developers S/o Sri Krishan Chand Agarwal, 43B, Narkeldanga Main Road, P.S. Beliaghat, Kolkata-700 054. & also 5A, Subarban School Road, P.S. Bhawanipore, Kolkata - 700 025. 3. Sri Raju Shaw, partner of M/S Sree Krishna Developers S/o Laxman Shawl, 43B, Narkeldanga Main Road, P.S. Beliaghat, Kolkata-700 054. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Gouranga Gupta Roy Mr. Souvik Das , Advocate For the Opp. Party: Mr. Tamal Chakraborty, Advocate Dated : 06 Mar 2017 Final Order / Judgement Date of Filing - 23.08.2012 Date of Final Hearing - 22.02.2017 The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of landowners against the developer and its partners with the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
Succinctly put, Complainants' case is that their predecessor in interest Hasibala Roy, since deceased was the owner in respect of a piece of land measuring about 5 cottahs and 5 chitaks of land along with structure thereon at Premises No.138A, Beliaghata Main Road, P.S.- Beliaghata, Kolkata - 700010, Dist-South 24 Parganas within the limits of Kolkata Municipal Corporation. On 29.05.2006 the landowner had entered into an agreement with the Opposite Parties for raising a multi-storied building and also executed a Power of Attorney in favour of OP no.1 authorising him to construct the same after demolition of the existing structure. As per the Agreement, the Complainants would get 50% of the total sanctioned F.A.R. which includes entire 3rd floor and 4th floor, two shop space on the ground floor and 50% of the open space on the ground floor of the building. The OPs undertook to complete the construction within 18 months from the date of handing over vacant possession. The OPs have also agreed to pay Rs.10,00,000/- to the Complainants and also arranged for alternative accommodation for shifting and all incidental costs relating to that effect. However, the OPs have failed and neglected to complete the building even after 36 months and as such on 07.04.2009, the original Complainant revoked the Power of Attorney. Thereafter, Complainant took physical possession of her incomplete allocation on 3rd and 4th floor and make it habitable at her own costs. The Complainants submit that they had to spend a sum of Rs.2,00,000/- to make the 3rd and 4th floor habitable. However, the OPs have failed to complete the boundary wall of the building, flooring and plastering etc. of ground floor which requires an estimated costs of Rs.2,57,000/-. The OPs also failed to install lift of the building and the price of the lift is Rs.3,87,477/-. The Complainants have also alleged that the OPs have failed to pay a sum of Rs.3,24,000/- (Rs.9,000/- p.m. x 36 months) towards temporary accommodation charge. Further the Complainants have stated that they have obtained quotation for fixing grills at 3rd and 4th floor which is estimated at Rs.1,95,860/-. The Complainants alleged that the OPs left the construction site after construction of 1st and 2nd floor and in this regard, all their requests and persuasions including legal notice dated 26.12.2011 turned a deaf ear. Hence, the Complainants have filed this complaint with prayer for certain reliefs, viz - (a) to complete the owner's allocation in 3rd and 4th floor of the premises alternatively to pay Rs.15,51,487/- to finish the incomplete works; (b) Rs.5,00,000/- towards non-refundable amount as per terms of the agreement; (c) compensation of Rs.2,50,000/-; (d) litigation cost of Rs.50,000/- etc. The OP nos. 1 to 3 by filing a joint written version disputed and denied the claim of the Complainants. According to them, they have completed the entire building and obtained partial completion certificate and were waiting for full CC only after installation of lift but due to revocation of Power of Attorney on 07.04.2009, the OPs failed to move any competent authority for compliance of requisite paraphernalia. The OPs have categorically stated that the Complainants took delivery of the possession of owner's allocation in complete habitable and usable condition and as such the complaint should be dismissed.
On the basis of contention of the parties, the following points are framed for adjudication;-
Is the complaint maintainable?
Is the complaint barred by limitation?
Is there any deficiency in services on the part of the OPs?
Are the complainants entitled to get the relief/reliefs, as prayed for?
In order to prove the case, Sri Swapan Roy, substituted Complainant no.1(a) has tendered evidence on affidavit on behalf of the Complainants against which questionnaire has been filed by the OPs to which reply was given by the said Complainant.
The OPs did not adduce any evidence.
On the basis of materials indicated herein above, I shall proceed to discuss how far the complainants have been able to prove their case.
DECISION Point no.1 The jurisdiction means the authority of the Court/Forum to adjudicate a dispute subject to the limitations imposed by law, which are three folds - (a) as to subject matter; (b) as to territorial jurisdiction and (c) as to pecuniary jurisdiction. Unless all the criteria are fulfilled, an order passed by any Court of law or Forum without jurisdiction would be a nullity.
On perusal of the petition of complaint, it reveals that the Complainants being landowners have lodged the complaint against the developer on the allegation of deficiency in services which is well maintainable under the provisions of the Act. The schedule property is situated within the local limits of Kolkata Municipal Corporation and as such it is maintainable in this Commission. However, in respect of valuation, the Complainants in Paragraph-14 of the complaint has mentioned the valuation at Rs.35,61,487/- which includes Rs.12,27,487/- as estimated costs towards completion of Complainants' allocation + Rs.5,00,000/- towards non-refundable payment as per agreement + Rs.3,24,000/- as rent for alternative accommodation + Rs.2,50,000/- as compensation + Rs.12,00,000/- as market rate @ Rs.4,000/- per sq. ft. + Rs.50,000/- as litigation cost. However, the Complainants have not shown the value of the property in computing the valuation. For appreciation of the matter in question, it would be worthwhile to reproduce the provisions of the Section 11(1) of the Act which runs as follows -
" (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 'does not exceed rupees twenty lakhs".
In a recent decision reported in I (2017) CPJ 1(Ambrish Kumar Shukla & Ors. -vs. - Ferrous Infrustracture Pvt. Ltd.) a Three-Member Bench of the Hon'ble National Commission while discussing on the point has observed thus-
"It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing deficiencies in the goods purchased or the servicers to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint ....".
Therefore, there cannot be any dispute that it is the value of goods or services and compensation claimed which determines pecuniary jurisdiction of the Consumer Forum. It is well settled that the question of territorial and pecuniary jurisdiction has to be ascertained at the initial stage or nascent phase of the proceeding. In a decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi - vs. - D.L.F. Universal Ltd. & Anr.) the Hon'ble Apex Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not in an appellate stage.
The Complainants were under obligation to state the valuation of the property in the petition of complaint for appreciation whether this Commission has got jurisdiction to entertain the same in view of the provisions of Section 11(1) of the Act and the decision of the Hon'ble National Consumer Commission in the case of Ambrish Kumar Shukla & 21 Ors. (Supra).
Therefore, when the Complainants have not mentioned the valuation of the property, certainly it has become difficult to understand whether this Commission has got pecuniary jurisdiction to entertain the complaint.
With the above observations, the Point No.1 stands disposed of.
Point No.2:-
From the pleading of the parties, it emerges that on 29.05.2006 the original Complainant being landowner had entered into a Development Agreement with OP no.1/developer for construction of a multi-storied building after demolition of existing structure standing thereon. With that aim in view, the Complainants had executed a Power of Attorney in favour of OP no.1. The materials on record indicate that on 07.04.2009 the Complainant revoked the Power of Attorney. In questionnaire no.35 put from the side of the developer, Complainant no.1(a) Sri Swapan Kumar Roy has admitted that the Complainant took possession of 3rd and 4th floor in the month of July, 2009. The instant complaint was lodged on 23.08.2012 almost about three years after the date of taking possession by the landowner/Complainant in respect of her allocation of share on the 3rd and 4th floor. To ascertain the position of law, it would be worthwhile to reproduce the provisions of Section 24A of the Act which runs as follows -
"24A. Limitation period:- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contend in sub-section(1) a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be records its reasons for condoning such delay".
The above provisions is clearly peremptory and mandatory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been within the stipulated period of two years from the date of cause of action. In a decision reported in 2009 (4) CPR 17 (Kandimalla Raghavaiah & Co. - vs. - National Insurance Co. Ltd. & Anr.) the Hon'ble Supreme Court after adopting the view of the observations of the Hon'ble Apex Court reported in 2009 (3) CPR 107 (State Bank of India -vs- B.S. Agricultural Industries) has observed - "As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside".
In Paragraph-13 of the petition of complaint, the Complainants have stated that the cause of action of the instant complaint case arose on 29.05.2006 i.e. the date of execution of Development Agreement and thereafter on 26.12.2011 on the date when the Complainants sent legal notice through their Advocate and again on 18.01.2012 when the OP no.2 gave reply to such letter.
Admittedly, the Complainants did not file any application under Section 24A(2) of the Act for condonation of delay for filing the complaint after two years from the date of accrual of cause of action i.e. on July, 2009 when the Complainants took possession in owners allocation on 3rd and 4th floor of the building. In 2015 (4) CPR 50 (Punjab State Ware Housing Corporation - vs. - United India Insurance Co. Ltd.) It has been held that by serving legal notice or by making representation, period of limitation cannot be extended, it is well settled proposition of law that law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statutes so prescribes and the Court has no power to extend the period of limitation on equitable grounds.
In view of the above proposition of law and the facts and circumstances of the present case, I must say that the complaint is barred by limitation.
Accordingly, this point is decided in the affirmative and against the Complainants.
Point No.3:-
The Complainants alleged that the OPs have only completed developers' allocation on 1st and 2nd floor and had stopped the construction work of 3rd and 4th floor being owner's allocation. The Complainants have also alleged that the OPs had constructed an excess floor area measuring 300 sq. ft. on each 1st and 2nd floor deviating from Sanctioned Plan. It is specific averment of the Complainants that under compulsion, they took possession of the 3rd and 4th floor of the building in the month of July, 2009 after doing some construction works to make it partly habitable.
In question no.14, it was put to the Complainants - "who are the contractors/masons you engaged to complete the work of the alleged unfinished work of the 3rd and 4th floor" to which Complainant no.1(a) replied - "I cannot remember the name of masons whom I engaged for completion of owner's allocation on 3rd and 4th floor of the building in question". In question no.44, on behalf of OPs, it was put - "can you subscribe the names of shops wherefrom you procured the materials to finish the unfinished work", to which it was replied - "From the annexures annexed to the petition of complaint the answer of this question would be clear". In question no.54, it was asked - "have you ever applied for Commissioner to find out the truth of you allegations"., to which it was replied - "I say that we would apply for a competent person through the Hon'ble Commission in proper time to substantiate our claims and allegations".
The answers given on behalf of the Complainants appears to be evasive. The Complainants did not make any prayer for appointment of any technical person to prove the allegation as to in complete works, particularly when the OPs have obtained partial completion certificate and despite the same the Complainants revoked the Power of Attorney on 07.04.2009.
Considering the above, I find that the Complainants have not been able to prove the alleged deficiencies in accordance with Section 2(1)(g) read with Section 2(1)(o) of the Act.
Accordingly, this point is also decided against the Complainants.
Point No.4:-
On evaluation of materials on record and in view of my foregoing discussions, I have no other option but to hold that the Complainants have miserable failed to substantiate their case. As a result, the instant complaint is liable to be dismissed.
This point is also disposed of accordingly.
In the result, complaint fails. It is, therefore, ORDERED that the complaint is dismissed on contest. However, there will be no order as to costs.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER