National Consumer Disputes Redressal
Rajiv Kumar Jain vs Shyam Kanhiya Jaiswal & 3 Ors. on 17 August, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 600 OF 2018 (Against the Order dated 12/03/2018 in Complaint No. 183/2016 of the State Commission West Bengal) 1. RAJIV KUMAR JAIN S/O. LATE KANHAIYA LAL JAIN FD57, SALT LAKE CITY SECTOR III, SALT CITY NOTH POLICE STATION KOLKATA 700106 ...........Appellant(s) Versus 1. SHYAM KANHIYA JAISWAL & 3 ORS. S/O. LATE RAM SURAT JAISWAL 2/1A, BIDHAN SARANI POLICE STAION AMHERST STREET KOLKATA 700 006 2. MRS PREMLATA JAISWL W/O. SHYAM KANHIYA JAISWAL 2/1A, BIDHAN SARANI POLICE STAION AMHERST STREET KOLKATA 700 006 3. SMT RENU DEVI JAISWAL W/O. SRI DILIP KUMAR JAISWAL 14 BALAI SINGHI LANE POLICE STATION AMBERST STREET KOLKATA 700 009 4. DILIP KUMAR JAISWAL S/O. LATE JANKI PRASAD JAISWAL 14 BALAI SINGHI LANE POLICE STATION AMHERST STREET KOLKATA 700 009 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE SUDIP AHLUWALIA,PRESIDING MEMBER HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),MEMBER FOR THE APPELLANT : MD. ADNAN AHMED AND MR. SOHAN LAL ADAK, ADVOCATES. FOR THE RESPONDENT : MR. SYED EHTISHAM HUDA, MS. PRATIKSHA SHARMA AND MR. ANKIT ACHARYA, ADVOCATES.
Dated : 17 August 2023 ORDER JUSTICE SUDIP AHLUWALIA, MEMBER
This Appeal has been filed by the Appellant/Opposite Party No.1 against the Respondents/Complainants and Opposite Parties No. 2 and 3 challenging the impugned Order dated 12.03.2018 passed by the State Consumer Disputes Redressal Commission, Kolkata, West Bengal, in Complaint Case bearing No. CC/ 183/ 2016. Vide such Order, the State Commission had disposed off the Complaint against Opposite Party No. 1 on contest and Ex-parte against Opposite Parties No. 2 and 3.
2. The brief facts of the case are that the Opposite Party No.2 is the land owner of Premises No. 41C, Bechu Chatterjee Street under Amherst Street Police Station, Kolkata - 700009, whereas the Opposite Party No.3 is her husband and her constituted agent and attorney with regard to the aforesaid property. The Opposite Party No.1 is a developer who entered into a Development Agreement with regard to construction and development of a new building Project on the aforesaid premises. The Complainants had entered into an Agreement for Sale dated 25.01.2014 with the Opposite Party No.1 - Developer to purchase one Flat being the Flat D situated on the second floor (north-eastern side) of the building measuring 1200 sq. ft., and a covered parking area at the aforesaid premises, but for a typographical error, open car parking space had been mentioned in place of covered parking area. The total consideration of the Flat was Rs.62,40,000/- out of which Rs.31,00,000/- had been contended to be paid by the Complainants. The Complainants also served a Legal Notice dated 18.09.2014 on the Opposite Party No.1 for specific performance of the Agreement for Sale dated 25.01.2014. Thereafter, on 26.11.2014, the Complainant No.1 visited the premises and found that the Opposite Party No.1 was giving inspection to some strangers for an unlawful transfer of the Complainants' Flat. In order to prevent the Opposite Party No.1 from creating third party interests in the Flat as well as the covered parking space, the Complainants filed a Suit bearing TS No. 35504 of 2014 against the Opposite Parties before Ld. 10th judge of City Civil Court at Calcutta wherein the Complainants also moved an Application under Order 39 Rules 1&2 r/w Section 151 of the Civil Procedure Code wherein the Ld. 10th Judge had directed the Complainants to pay a sum of Rs.10 Lacs to the Opposite Parties which was complied with by the Complainants. The Ld. Judge had allowed the Application for injunction vide Order dated 08.10.2015 restraining the Opposite Parties from creating any third party interests in the suit Flat including the covered car parking space till the disposal of the suit. The said suit was still pending till the date of filing of the Complaint. Therefore, the Complainants had contended to have paid a total sum of Rs.41,00,000/- to the Opposite Parties.
3. Thereafter, the Complainants issued a Notice to the Opposite Party for filing of the Complaint before the Ld. State Commission in case the Opposite Party failed to refund the sum paid. However, the Opposite Party failed to comply with the aforesaid notice. Therefore, being aggrieved by the acts of the Opposite Parties in failing to comply their part of obligations resulting deficiency in services and unfair trade practices, the Complainants filed a Complaint before the Ld. State Commission seeking refund of Rs.41,00,000/- along with interest @ 18%p.a. from 25.01.2016 till realization, compensation of Rs. 20,00,000/-, pendente lite interest @ 18% p.a. during the pendency of the case and interest @ 18%p.a. on judgement/ order till realization.
4. The Opposite Party No.1 appeared before the Ld. State Commission and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended that the Complaint is based on Agreement dated 25.01.2014 which is neither sufficiently stamped nor is registered and hence, is not enforceable and has no evidentiary value. It was further submitted that the Complainants had tampered with the Agreement dated 25.01.2014. It was further contended that the Opposite Parties were not obliged to give a covered car parking space whereas they would give facility of open car parking space and no cost for open car parking space had been charged. It was further submitted that the Complainants had rushed to different Fora for redressal of their grievances and have consequently, harassed the Opposite Parties as the Complainants had also filed a Writ Petition before the Hon'ble High Court of Calcutta praying for demolition of the existing structure of the Opposite Party which was disposed off with direction to deposit Rs.10 Lacs before the City Civil Judge in suit No. 35504/2014.
5. It was further the case of the Opposite Party no.1 that it had requested the Complainants vide letter dated 21.05.2015 to pay the balance payments and to have the Flat registered but the Complainants failed to pay heed to the said request. It was further contended that multiplicity of proceedings would result in miscarriage of justice and the Complaint is barred by limitation in as much as the same allegations have been filed before different courts, one being for declaration and injunction before City Civil Court, second for demolition of unauthorised construction before Calcutta High Court and third before the Ld. State Commission for refund. It was further submitted that the Opposite Party was willing to handover the complete Flat as per the Agreement dated 25.01.2014 subject to payment of balance consideration with prior two months' notice. Therefore, the Opposite Party No.1 prayed for dismissal of the Complaint with costs.
6. The Ld. State Commission vide its Order dated 12.03.2018 noted that the Opposite Parties no. 2 and 3 did not contest the said Complaint. The Complaint was thus, disposed off against the Opposite Party No.1 on contest and Ex-parte against the Opposite Parties No. 2 and 3 by directing the Opposite Party No.1 to refund Rs.41,00,000/- along with compensation in the form of simple interest @18% p.a. from the date of each payment till the date of refund of entire amount with interest and Rs.10,000/- as litigation costs. It was observed by the Ld. State Commission that the Opposite Party No.1 was under an obligation to hand over the subject property within 24 months and the Opposite Party No.1 failed to keep his promise. The Opposite Party No.1 also failed to satisfy that he had obtained a Completion Certificate from KMC. Therefore, it was observed that the Complainants could claim refund with interest as per the terms of the Agreement. It was also observed that pendency of civil suits cannot be a bar to the Complainants' case. Also, it was not in dispute that the Complainants had paid Rs.41 Lacs.
7. Aggrieved by the above Order, First Appeal bearing No. 600 of 2018 has been filed by Appellant/ Opposite Party No.1 against the remaining Parties before this Commission.
8. It is contended by the Appellant/ Opposite Party No.1 that the Ld. State Commission lacked pecuniary jurisdiction as the total value of services and compensation including interest is Rs.1,20,63,480/-; that it was nowhere contended by the Complainants/ Respondents No. 1 and 2 that the Appellant neglected to deliver possession of the Flat or deviated from the sanctioned plans; that the Complainants had obtained an Order of injunction, therefore, they cannot claim refund when they have claimed their right to purchase the Flat; that the Complainants have defaulted in making payments in the stipulated period; that as per the Agreement, the Complainants cannot claim refund. It has been further stated by the Appellant that the Complainants had obtained an Order of injunction from the Ld. City Civil Judge subject to deposit of Rs.10 Lacs in the name of Registrar, City Civil Court, Calcutta. However, the Complainants had failed to comply with said order Consequently, the said interim order was vacated vide Order 28.01.2015. Thereafter, the Complainants filed an Appeal against the said Order before the Hon'ble High Court of Calcutta which was subsequently withdrawn and the Complainants had thereafter paid a sum of Rs.10 Lacs to the Appellant and obtained a fresh order of injunction from the Ld. City Civil Court.
9. Vide Order dated 21.05.2018, the operation of impugned Order was stayed subject to deposit of entire principal amount i.e., Rs. 41 Lacs with the Ld. State Commission and it was also noted that the Kolkata Municipal Corporation vide letter dated 23.03.2018 had said that the Completion Certificate could not be issued till the matter is pending before the Hon'ble High Court. Vide Order dated 15.09.2022, the amount of Rs.41 Lacs was ordered to be released to the Complainant(s) along with interest and the said order was passed without prejudice to the rights of the parties in the present Appeal.
10. Heard the Ld. Counsels for Appellant and Respondents. Perused the material available on record.
11. The Agreement between the parties was entered into on 25.1.2014. According to its terms, possession of the Flat to the Complainants was to be delivered in a period of 24 months thereafter. But in the interregnum, the Complainant/Respondent had contended that there was virtually no progress in construction. A lot of bickering between the parties apparently occurred during this period, and thereafter the Complainants filed their complaint seeking refund on 28.4.2016, which was more than 03 months after the time line for delivery of the Flat to him had lapsed in terms of the Agreement.
12. In its impugned Order, the Ld. State Commission has noted that the Appellant/Opposite Party No. 1 in his Written Version or even at the time of Final Hearing of the case (which happened on 20.2.2018, i.e. more 02 years after the time line for delivery of the Flat had passed) had failed to satisfy that he had obtained the Completion Certificate from the KMC, and therefore in such a situation the Complainants being the intending buyers were certainly entitled to claim refund of the amount with interest as per the terms of the Agreement.
13. There is no impropriety in this observation of the Ld. State Commission since even the Apex Court has observed in the case of "Kolkata West International City Pvt. Ltd. Versus Devasis Rudra", C.A No.3182 of 2019 dated 25.03.2019"; that-
".....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March, 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified.......".
14. Another contention raised on behalf of the Appellant is that the Ld. State Commission had no pecuniary jurisdiction to entertain the complaint, since the combined value of the various reliefs sought for by the Complainants exceeded Rs. 1.00 crore. This is, however, not the actual case. This Commission has perused the prayers of the Complainants in Para 26 of their original complaint, a copy of which is on record at pages 9-18 of the Paper Book. The Complainants had prayed for refund the amount of Rs. 41.00 lakhs delivered to the Appellant/Opposite party, interest @ 18% p.a. thereupon from 25.1.2016, and Rs. 20.00 lakhs as damages for the financial and business loss, mental tension and agony of the Complainants and their family members. Considering that the complaint had been filed on 28.4.2016, the total claim would come to less than Rs. 80.00 lakhs including the principal amount, amount of compensation sought (Rs. 20.00 lakhs) and interest @ 18% p.a. on the principal amount till the date of filing of the complaint.
15. For the aforesaid reasons, this Commission finds no grounds to interfere with the balanced and reasonable order passed by the Ld. State Commission. The Appeal is, therefore, dismissed and an additional amount of Rs. 20,000/- is awarded to the Respondents/Complainants towards litigation expenses for the same.
16. Pending application(s), if any, also stand disposed off as having been rendered infructuous.
......................................J SUDIP AHLUWALIA PRESIDING MEMBER ................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) MEMBER