State Consumer Disputes Redressal Commission
Sri Ashim Mondal vs Sri Premendra Kumar Bose on 8 February, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/402/2016 1. Sri Ashim Mondal S/o Lt. Atul Kishore Mondal, 4B, Chandra Mondal Lane, P.S. - Tollygunge, Kolkata - 700 026. ...........Complainant(s) Versus 1. Sri Premendra Kumar Bose S/o Pabitra Kumar Bose, 17B, Tarak Dutta Road, Kolkata - 700 019, P.S. Karaya. 2. M/s. Nirman A partnership firm, 22, R.N. Mukherjee Road, P.S. - Hare Street, Kolkata - 700 001. 3. Sri Tushar Kanti Sen, partner, M/s. Nirman S/o Lt. Nanigopal Sen, Ananda Niketan, Diamond Harbour Road, P.O.- Joka, P.S. - Thakurpukur, Kolkata - 700 104. 4. Sri Sunil Kr. Sen, partner, M/s. Nirman S/o Lt. Nanigopal Sen, Ananda Niketan, Diamond Harbour Road, P.O.- Joka, P.S. - Thakurpukur, Kolkata - 700 104. 5. Sri Debashis Sen, partner, M/s. Nirman S/o Samarandra Narayan Sen, Ananda Niketan, Diamond Harbour Road, P.O.- Joka, P.S. - Thakurpukur, Kolkata - 700 104. 6. Sri Sandip Sen, partner, M/s. Nirman S/o Samarandra Narayan Sen, Ananda Niketan, Diamond Harbour Road, P.O.- Joka, P.S. - Thakurpukur, Kolkata - 700 104. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Barun Prasad, Mr. Subrata Mondal, Mr. Sovanlal Bera, Advocate For the Opp. Party: Mr. Asis Chatterjee, Mr. Debnarayan Roy, Advocate Mr. Somsubhra Ghosh, Advocate Mr. Somsubhra Ghosh, Advocate Mr. Somsubhra Ghosh, Advocate Mr. Somsubhra Ghosh, Advocate Mr. Somsubhra Ghosh, Advocate Dated : 08 Feb 2018 Final Order / Judgement Date of filing : 07.09.2016 Date of hearing : 10.01.2018 The instant complainant under Section 17 of the Consumer Protection Act, 1986 ( for brevity, "the Act" ) is at the instance of an intending purchaser/ tenant against the Landowner(OP No.1)developer and its partners ( OP Nos.2 to 6) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
Succinctly put, complainant's case is that being a tenant of premises no.11, Chandra Mondal Lane, P. S. -Tollygunge, Kolkata - 700 026, an agreement between him and the OPs had taken place on 13.08.2012 wherein the OPs agreed to provide him a composite flat of 650 sq.ft. carpet area on the 2nd floor and a car parking space of 120 sq.ft. on the ground floor in the said premises at a consideration of Rs. 2,00,000/- as construction cost. It was agreed that OP No.2/builder will pay Rs. 4,00,000/- for temporary shifting charges to the complainant. As per agreement, complainant has paid the entire of Rs. 2,00,000/- for construction. It was stipulated that the OPs will deliver the subject flat and car parking space within 27 months from the date of execution of the agreement. The complainant alleged that the OPs have given possession of flats to others but refusing to keep their promise. In this regard all his requests and persuasions went in vain. Hence, the complainant has lodged the complaint with the direction upon the OPs to comply with the terms of the agreement dated 13.08.2012 and to deliver possession and execute the deed of conveyance in favour of him together with compensation and costs.
The OP No.1 /landowner by filing written version has stated that he has no knowledge about handing over any cheque of Rs. 2,00,000/- by the developer for constructional cost. The OP No.1 has also stated that he signed the agreement in good faith without knowing the terms and conditions laid down their.
The OP Nos. 2 & 3 by filing a separate written version have stated that the agreement is a void one and most of the terms are illegal and wrongful in the eye of law.
The signature of them was obtained under influence and pressure and the complainant did not pay any single penny to them and as such the complaint should be dismissed.
OP Nos. 4,5 & 6 adopted the written version filed by OP Nos. 2 & 3.
On behalf of the complainant, complainant himself has filed evidence on affidavit. He has also given reply against questionnaire set forth by OP No.1 and OP Nos. 2 to 6. .
On behalf of OP No.1, OP No. 1 himself has filed evidence on affidavit and on behalf of OP Nos. 2 to 6, OP No.3 has tendered evidence on affidavit. They have also given reply to the questionnaire set forth by the complainant.
Besides the same, the parties have relied upon several documents including the agreement for sale dated 13.08.2012.
Having heard the Ld. Advocates appearing for the respective parties and on perusal of the pleadings and the evidence led by the parties it emerges that the complainant was a tenant in respect of premises no. 11, Chandra Mondal Lane, P. S. - Tollygunge, Kolkata - 700 026. The said premises belonged to OP No.1 the OP No.1 entered into a development agreement with OP No.2 /builder represented by OP Nos. 3 to 6 for raising a multi-storied building in the said premises. As the complainant was a tenant, the OPs had to come to an agreement with complainant to facilitate the progress of construction.
Undisputedly, on 13.08.2012 the OPs had entered into an agreement with the complainant to provide him a residential flat measuring about 650 sq.ft. carpet area at the 2nd floor with garage space measuring 120 sq.ft. area with consideration of Rs. 2,00,000/-. Now, the Memo of consideration of the agreement indicates that the complainant has paid Rs. 2,00,000/- for construction of flat as per agreement by way of A/C Payee cheque being number 344701 dated 13.08.2012 drawn on Central Bank of India, Pratapaditya Road Branch.
In the agreement it was stipulated that the OPs will deliver possession of the flat within 27 months from the date of agreement and will collect the Completion Certificate from the Kolkata Municipal Corporation in due course.
Needless to say, the parties are bound by the agreement. A person who signs a document contains certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect. Therefore, the landowner /OP No.1 has no locus standi to raise any dispute with regard to the claim of the complainant. In a decision reported in AIR 1996 SC 2508 ( Bharati Knitting Company -vs. - DHL Worldwide Express Courier Division of Airfreight Ltd. ) the Hon'ble Supreme Court has observed thus :
"..... In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State Law to have claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract" .
In accordance with the terms of the agreement, the OPs were under obligation to handover the property as per agreement within 27 months from the date of agreement. Therefore, in all fairness, the OPs should have handed over the property to the complainant at least by the end of December, 2014. The non-fulfilment of the terms of agreement led the complainant to lodge this case on 07.09.2016.
Ld.Advocate for OP Nos. 2 to 6 has contended that the amount of Rs.4,00,000/- for temporary shifting charge was really exorbitant and disproportionate to the consideration cost which was settled at Rs. 2,00,000/-. It is surprising to record that the claim of Rs. 4,00,000/- for shifting of articles from tenanted premises of the complainant to other place to facilitate construction is really excessive and it can easily be ascertained that the OP No.2/builder was compelled to agree to put his signature in the agreement just to proceed with the construction work. The said part of the agreement was not a free one or not conscionable and one sided and as such the amount of Rs. 4,00,000/- for the purpose of shifting is reduced to Rs. 50,000/- in all practical purposes taking into consideration the present hiring rate prevalent in the market.
The facts and circumstances of the case indicate that the OPs being service - provider have shown negligence in delivering the schedule 'B' property in favour of complainant as agreement dated 13.08.2012. Therefore, complainant is entitled to the reliefs. Considering the facts and circumstances, I think an order directing the OPs to handover possession and to execute the sale deed within 30 days from date will meet the ends of justice. In addition to the same, a direction upon OP Nos. 2 to 6 to pay Rs. 50,000/- as temporary shifting charges will be just and proper in the facts and circumstances of the case. The OPs should have taken initiative in handing over the said property in favour of the complainant as per agreement within the stipulated period and non-delivery of the same has caused a serious mental agony and pain to the complainant for which he is entitled to compensation which I assess at Rs.20,000/-. As the situation compelled the complainant to lodge complaint, he is also entitled to litigation cost which I quantify at Rs. 5,000/-.
Consequently, complaint is allowed on contest in part. The OPs are jointly and severally directed to execute deed of conveyance in favour of the complainant in respect of the property as mentioned in schedule 'B' to the agreement dated 13.08.2012 within one month from date. The OP Nos.2 to 6 are also directed to handover the possession of the same to the complainant within 30 days from date, to pay Rs. 50,000/- as temporary shifting charges, Rs. 20,000/- as compensation and Rs. 5,000/- as litigation cost aggregating Rs. 75,000/- within 30 days from order otherwise the amount shall carry interest @ 9% p.a. from date till its realisation.
The Registrar of the Commission is directed to send a copy of this order to the parties at once free of cost for information and compliance.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER