State Consumer Disputes Redressal Commission
Sri Utpal Saha vs Sri Jadab Chandra Banerjee on 19 March, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1304/2017 ( Date of Filing : 15 Dec 2017 ) (Arisen out of Order Dated 15/09/2017 in Case No. Complaint Case No. CC/560/2016 of District Kolkata-III(South)) 1. Sri Utpal Saha S/o Lt. N.C. Saha, 138, Bansdroni New Govt. Colony, P.S. - Regent Park, Kolkata - 700 070. ...........Appellant(s) Versus 1. Sri Jadab Chandra Banerjee S/o Lt. Haripada Banerjee, 113, Bansdroni Place, P.S. - Regent Park, Kolkata - 700 070. 2. Sri Jitu Saha S/o Lt. S. Saha, 10, Sreekanan, Bansdroni Place, P.S. - Regent Park, Kolkata - 700 070. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER For the Appellant: Ms. Paulomi Dutta, Mr. Partha Chakraborty, Advocate For the Respondent: Mrs. Soumi Chatterjee, Advocate Dated : 19 Mar 2019 Final Order / Judgement
HON'BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT This Appeal U/s 15 of the C.P.Act,1986 has been directed against the judgement and order dated 15.9.2017 passed by ld. D.C.D.R.F. , Kolkata Unit III in C.C. 560 of 2016 where the ld. Forum concerned while disposing of the said Complaint Case allowed it on contest against the Op no.1 and exparte against the OP No.2 , directed the O.Ps to pay a sum of Rs.2,90,000/- (Rupees two lakh ninety thousand) to the complainant within three month from the date of this order i.d. to pay interest @ 10% per annum from the date of the order till realization.
Being aggrieved by such direction the OP No.1 of C.C.560 of 2016 preferred this Appeal.
The respondent no.1/Complainant (hereinafter referred to as the complainant) Jadav Chandra Banerjee filed the Complaint Case claiming certain reliefs against both the OPs who are the partners of M/s Rising Associate , a Partnership firm and prays for direction upon the OPs to replace the floor marble wall, glazed tiles of the Kitchen, to replace the broken main gate with supporting pillar and the over-head tank, to hand over the completion certificate along with other original documents and further directing the OPs to refund a sum of Rs.2,90,000/- (Rupees two lakh ninety thousand) , compensation and other consequential reliefs for deficiency of service. The complainant claimed that he and his other co-owners of the plot in question at mouza Bansdroni (described in the paragraph 1 of the Petition of complaint) entered into a Development Agreement with the OPs on 17.6.2011 and in terms of the said Development Agreement, the complainant was entitled to get 500 Sq.ft. flat whereas the other co-owners Aparna Banerjee and Jaya Biswas would get another flat measuring 500 Sq.ft. jointly on the ground floor in the proposed new building as owners' allocation. Subsequently, on 1.11.2011 a new agreement was entered into between the parties and it was agreed therein that the complainant would get one enlarged flat measuring 600 Sq.ft. in the first floor instead of the ground floor flat and for such flat the complainant thereafter had to pay a sum of Rs. 2 lakh ( Rupees two lakh) to the OPs and the complainant accordingly paid a sum of Rs.50,000/- (Rupees fifty thousand) out of said Rs.2 lakh (Rupees two lakh). On 21.11.2011 the OPs took the original Deed from the complainant with undertaking to return the same in due time. Thereafter on 10.5.2012 the complainant entered into an agreement for purchasing another 85 Sq. ft. of area along with his 600 Sq. ft. first floor flat and the price for the enhanced area of his flat was settled at Rs.1,70,000/- (Rupees one lakh seventy thousand) out of which the complainant paid a sum of Rs.90,000/- (Rupees ninety thousand) in cash on proper receipt. It is to be mentioned here that the OP took Rs.2 lakh (Rupees two lakh) from the complainant on 8.9.2013 and promised to repay the same. Subsequently, in the year 2014 the complainant found that the OPs started construction beyond the Development Agreement on the second floor and on the protest of the complainant the OP had expressed that they would somehow manage the same from the KMC Building Dept. by submitting revised Building Plan. The complainant thereafter proposed the OPs to enhance the flat area on the owner's allocation and as a result, the complainant's flat area was enhanced and he was allowed the enlarged first floor measuring 835 Sq.ft. and the other co-owners took money value from them instead of taking enhanced area of flat . At that point of time it was agreed between the parties that the extra money amounting to Rs.90,000/- (Rupees ninety thousand) which the Opposite party had taken from the complainant would be refunded by them. Accordingly, on 27.6.2014 a Memo of Understanding were entered into between the parties and the Opposite parties promised to give 250 Sq.ft. extra area in the flat of the complainant on the basis of the revised Building plan and would refund money they received from the complainant. It was further agreed between the parties that the OPs would pay a sum of Rs.30,000/- (Rupees thirty thousand) towards compensation. On the basis of the said understanding the Ops promised to complete the building within one month from that date and paid the compensation of Rs.30,000/- (Rupees thirty thousand). The OPs constructed the building not within the stipulated time, delivered the first floor of the flat to the complainant on 28.6.2014 but they did not refund the balance amount of Rs.2 lakh (Rupees two lakh) and Rs.90,000/- (Rupees ninety thousand) received from the complainant, despite several requests. Further the complainant on getting possession of the flat in the new building on 28.6.2014 noticed that quality of most of the works of the flat was poor and were not in complete condition. The marbles used by the OPs on the floor of the flat were of different colours and most of them were cracked and the standard of the goods were very poor. The over-head tank of the building were broken causing percolation of water from the tank. The complainant repeatedly requested the OPs for such repairing and to hand over the completion certificate of the building but it was not property adhered to which prompted the complainant for filing the instant Complaint case for deficiency of service and unfair trade practice claiming the reliefs as noted in the earlier part of this judgement.
The Appellant/OP No.1 Utpal Saha filed a Written version to contest the Complaint Case and contended that the Complaint case was not maintainable in law and it was hit by law of limitation as well as bad for defect of parties. Denying and disputing the material allegations as contained in the body of the Petition of Complaint this OP/Appellant in his Written version admitted that several agreements were executed with the Partnership firm and there was no such agreement between the partners in their personal capacity and further contended that the Complaint case was not maintainable and it was hit by non-joinder of necessary parties the Rising Associate, a Partnership Firm has not been added to the party to this proceeding before ld. D.C.D.R.F. Denying and disputing the material averments as contained in the Petition of complaint the OP No.1 simply denied that the complainant was entitled to get back a sum of Rs.2 lakh (Rupees two lakh ) and Rs.90,000/- (Rupees ninety thousand) with interest from the OPs and this OP no. 1 ultimately prayed for dismissal of the Complaint case as the other co-owners of the property have not been impleaded in this Complaint case .
Ld. Trial Forum while disposing of the Complaint case upon consideration of the rival pleadings of the parties allowed it on contest against this Appellant/OP NO.1 and exparte against the OP No.2 and passed directions as noted in the earlier part of this judgement.
Now the point for consideration is that whether the ld. Trial Forum was justified in passing such direction.
Admittedly the property, where the building was constructed belonged to the complainant and his co-owners. As per agreement between the parties the complainant was entitled to a flat measuring 845 Sq.ft. as per the last agreement which was materialized after unauthorized construction on the second floor of the building, subject to payment of Rs.1,70,000/- (Rupees one lakh seventy thousand) . It is claimed by the complainant that the OPs undertook to pay a sum of Rs.2 lakh (Rupees two lakh) to the complainant for the deviation caused by the OPs/Developers in course of construction of the building. The receipt shows that the complainant paid a sum of Rs.90,000/- (Rupees ninety thousand) (which is pages 43 to 45 of the file) and such amount was paid towards consideration of the enhanced area of the flat and now the complainant/Respondent no.1 is praying for recovery of such amount by creating a camouflage. Moreover, the so-called undertaking for payment of Rs.2 lakh (Rupees two lakh) to be given by the OPs, the Partners of Rising Associate (which is at page 46 of the file) cannot be realized at the intervention of the court , the same being a term of unlawful agreement between the parties and the court cannot take the responsibilities of realizing such amount. The document as produced before us are the Possession letter issued in favour of the complainant/Respondent No.1 dated 28.6.2014 establishing the fact that the possession was delivered in favour of the complainant. Another undertaking dated 21.11.2011 given by the Appellant /Developer and his co-owners for returning the documents taken from the complainant on the self-same date should be complied with by the Appellants herein and we may direct them to do as per their undertaking dated 21.11.2011 (page 42 of the file). Since the complainant is yet to receive any completion certificate of the building, the Appellant No.1 and his partners are duty bound to supply the same and they should be directed to supply the same within a stipulated period and accordingly we direct them to supply the completion certificate within 60 days from the date of the order.
In the result, we allow the Appeal in part and the judgement and order passed by ld. D.C.D.R.F. dated 15.9.2017 in C.C. 560 of 2016 are hereby modified to the extent as noted above.
With these observations and directions this Appeal stands disposed of. Parties do bear their respective costs of Appeal. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER