State Consumer Disputes Redressal Commission
Smt. Swapna Rana vs Shri Ajoy Kumar Mitra on 22 July, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/918/2017 ( Date of Filing : 07 Dec 2017 ) 1. Smt. Swapna Rana W/o Ashok Kr. Rana, Vill. & P.O. - Manikpara, P.S. - Jhargram, Dist. - Paschim Medinipur, W.B., Pin-721 513. ...........Complainant(s) Versus 1. Shri Ajoy Kumar Mitra S/o Lt. Ajit Kr. Mitra, Kshudiram Nagar, Midnapore Town, P.S. - Kotwali, P.O. - Midnapore, Dist. Paschim Medinipur, Pin - 721 101. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Mr. Prabir Kumar Sarkar- Auth. person/, Advocate For the Opp. Party: Atanu Chakraborty, Mr. Sayantan Banerjee, Advocate Dated : 22 Jul 2019 Final Order / Judgement PER:HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant Complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of an intending purchaser against the land owner/developer on the allegation of deficiency in services on the part of land owner/developer in a dispute of housing construction.
In a nutshell, complainant's case is that on 06.09.2015 she entered into an agreement with the OP to purchase two flats measuring about 1401 sq. ft. covered area on the 2nd floor and also one car parking space measuring about 120 sq. ft. on the ground floor in a building christened "Pincon Abasan" lying and situated at holding No.1059/110 at Kotebazar, Medinipur, District-Paschim Medinipur within the local limits of Ward No.8 of Medinipur Municipality at a consideration of Rs.45,38,700/- for the flat and Rs.3,50,000/- for car parking space aggregating Rs.48,88,700/-. The complainant has stated that she has paid almost entire consideration amount excepting the balance amount of Rs.11,44,350/- which was required to be paid by her on the date of execution of deed of conveyance as stipulated in the agreement. The complainant has alleged that the OP was under obligation to handover those flats and car parking space within December, 2015. The complainant has alleged that despite receipt of bulk consideration amount, OP has failed to fulfil his promise and obligation and in this regard all her requests and persuasions including the notice dated 16.11.2017 went in vain. Hence, the complaint with prayer for following reliefs viz.- (a) the opposite party may be directed to deliver possession of the 2nd floor flats in question in the "Pincon Abasan" by executing the registered sald deed in favour of the complainant within 30 days of passing of the order; (b) in default of such delivery of possession of the flats within the stipulated date, the opposite party may be directed to refund the money paid by her with interest @ 18% per annum from the date of payment thereof till the date of refund;(c) to pay compensation of Rs.10 lakh for physical harassment and mental agony; (d) Rs,20,000/- as litigation costs etc. The opposite party by filing a written version has stated that he entered into an agreement with Pincon Abasan Developers Ltd. on 24.07.2014 to construct "Pincon Abasan" on the land and as the Pincon Abasan Developers Ltd. has not been impleded as a party, the complaint is bad for non-joinder of necessary party. The opposite party's specific case is that the development work has to be done by the developer and without completion of development work, it is not possible on the part of him to deliver possession of the flat in favour of the complainant and in this regard opposite party has stated that he is still ready to transfer the proportionate share in "Pincon Abasan" in favour of complainant. The opposite party has submitted that the dispute between the parties is of civil in nature and the complainant cannot be categorised as 'consumer' and as such complaint should be dismissed.
In support of her case, complainant tendered evidence through affidavit. The opposite party did not file any questionnaire to test a veracity of statement of complainant and also did not file any evidence through affidavit. However, at the time of final hearing, a brief note of argument has been filed by opposite party and further he participated in the argument to address in respect of complainant's case.
Undisputedly, opposite party is the land owner of 0.1207 acre of land in L.R. Plot Nos. 181, 180 and 179 and in holding No.1059/110 at Medinipur Town, District- Paschim Medinipur within the local limits of Ward No.8 Medinipur Municipality. It is also not in dispute that on 24.07.2014, the opposite party had entered into an agreement with Pincon Abasan Developers Ltd. to develop and construct of a G+3 storied building named "Pincon Abasan" over the said land. It is also not in dispute that on 06.09.2015 opposite party had entered into an agreement for sale with the complainant to sell two flats measuring about 1401 sq. ft. covered area on the 2nd floor and one car parking space 120 sq. ft. on the ground floor at a total consideration of Rs.45,38,700/- and Rs.3,50,000/- aggregating the total consideration of Rs.48,88,700/-.
The overwhelming evidence on record makes it clear that the complainant has paid almost entire consideration amount in terms of the agreement leaving a balance of Rs.11,44,350/- which was required to be paid by her at the time of execution of sale deed. As per terms of the agreement the opposite party was under obligation to complete the flat and car parking space in all respect and to hand over the same to the complainant within December, 2015.
In her evidence, the complainant has stated that in the agreement it was stipulated that the opposite party shall deliver possession of the flat in the 2nd floor measuring 1681.2 sq. ft. super built up area complete in all respect and the garage in the ground floor of said "Pincon Abasan" along with proportionate common area to her within December, 2015. The said statement remained uncontroverted or in other words the complainant has not been cross-examined to that effect.
Admittedly, the complainant filed affidavit by way of evidence but OP neither filed questionnaire nor filed evidence through affidavit. In a decision reported in (2003) 1 SCC 240 (Sarwan Singh vs. State of Punjab), while discussing on the point, in paragraph 9 of the said decision the Hon'ble Supreme Court has observed thus:
"it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted. A decision of the Calcutta High Court lends support to the observation as above. [see in this context A.E.G Caraplet v. A.Y derderan4 (opinion of P.B Mukherjee, J, as he then was).]"
In this regard, it would be profitable to refer the observation made by Justice P.B. Mukharji, j. in paragraph 9 of the said decision reported in AIR 1961 Cal 359 (A.E.G Caraplet Vs. A.Y. Derian). In paragraph 9 of the said decision it has been observed -
"9. the law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses............"
Admittedly, the complainant filed affidavit by way of evidence but the opposite party neither filed any affidavit by way of evidence nor cross-examined the complainant. In such circumstances, keeping in view the position of law, the allegations of the complainant which remained uncontroverted shall prove her case in the absence of any counter affidavit filed by opposite party.
However, when the record was taken up for final hearing Mr.Sayantan Banerjee, Ld. Advocate for the opposite party submits that as there was no element of service or the relation between the parties as 'consumer' and service provider does not exist, the complainant cannot qualify as a 'consumer' within the meaning of Section 2(1)(d) of the Act. In support of his contentions, Ld. Advocate for the OP has placed reliance to two decisions of the Hon'ble National Commission reported in (1) 2017 (2) CPR 566 (Manjit Gupta Vs.- Oberoi Realty Ltd.) and (2) 2018 (2) CPR 170 (Rakesh Nag Vs.- Kakali Manna and Anr.).
On the other hand, Mr. Prabir Kumar Sarkar, Authorised Representative of the complainant has contended that in their written objection the opposite party has expressed their desire to hand over the subject flat after completion of construction. He has further contended that despite receipt of consideration amount as per terms of the agreement the opposite party has failed to fulfil his promise to deliver possession of the flats within December, 2015. In this regard, he has drawn our attention to clause 12 of the agreement for sale between the parties which reproduces below-
"12. The Land Owner/First Part here by covenant with the Purchaser/Second Part to complete the said flats on behalf of the purchaser as earliest moment preferably within December 2015 from the date of execution of this Agreement of sale and shall deliver possession thereof to the purchaser/second part and complete the said flats in all respect measuring super buildt rea 1681.2 square feet (cover area 1401 square feet) including carpet area and wall thickness plus proportionate area of land, stair case, lift on the second floor of the said building viz.- "PINCON ABASON".
We have given due consideration to the submission made on behalf of the parties.
In the case of Manjit Gupta (supra) it is found that it was a pure and simple case of sale of ready flat and parking space with no element of hire or avail of any service. Similarly, in the case of Rakesh Nag (supra) it is evident that the case was an agreement for sale simplicitor being no element of service to be provided by the opposite party to the complainant. In the case before hand, the land owner by an undertaking promised to complete the flats under construction and thereby stepped into the shoe of developer. In fact, by Clause No.12 of the agreement the OP binds himself to complete the flat preferably within December, 2005 and agreed to deliver possession to the complainant and to complete those flats in all respect. Therefore, the referred decisions have no manner of application in the facts and circumstances of the present case.
In the instant case, the OP has accepted almost the entire consideration amount excepting the amount which is liable to be paid by her at the time of registration. It simply indicates that the complainant being an intending purchaser hired the service of OP to purchase flat and car parking space and OP being land owner/developer has failed to fulfil his part and obligations as a service provider and thereby deficient in rendering services in accordance with definition of Section 2(1)(g) read with Section 2(1)(o) of the Act. In that perspective, the claim of the complainant for a direction to deliver possession and to execute the sale deed in default to refund the money with interest appear to be justified. Once it is found that OP was negligent or deficient, the OP being service provider is under obligation to compensate the complainant and considering the facts and circumstances of the case, we think compensation in the form of interest @ 9% p.a. over the amount already paid from the date of each payment till its realisation will meet the ends of justice. Under compelling circumstances, complainant has to come in this Commission for which she is entitled to litigation cost which we quantify at Rs.10,000/-.
In view of the above, the complaint is allowed on contest with the directions upon the Opposite Party to refund the amount received by him from the complainant in terms of agreement for sale dated 06.09.2015 along with compensation in the form of simple interest @ 9% p.a. from the date of each payment till its realisation. The opposite party shall also pay Rs,10,000/- to the complain act as costs of litigation. The above payments must be paid within 60 days from date.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER