State Consumer Disputes Redressal Commission
Anindya Chatterjee vs M/S. A. S. Enterprises on 12 December, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/206/2014 1. Anindya Chatterjee S/o Sankar Chatterjee, 95A, A.J.C. Bose Road, P.S. Taltala, Kolkata -700 014. 2. Aparajita Chatterjee W/o Anindya Chatterjee, 95A, A.J.C. Bose Road, P.S. - Taltala, Kolkata - 700 014. ...........Complainant(s) Versus 1. M/s. A. S. Enterprises A Proprietorship firm, represented by its Prop., Sri Asim Banerjee, S/o Lt. Jayanti Kumar Banerjee, 2C, Naba Kumar Raha Lane, Kolkata-700 004, P.S. Shyampukur. 2. Smt. Lila Dutta W/o Lt. Ashok Kumar Dutta, 11/1C, Raja Dinendra Street, Kolkata-700 009, P.S. - Narkeldanga. 3. Sri Arun Kumar Dutta S/o Lt. Bhupendra Nath Dutta, 11/1C, Raja Dinendra Street, Kolkata-700 009, P.S. - Narkeldanga. 4. Sri Aloke Kumar Dutta S/o Lt. Bhupendra Nath Dutta, 11/1C, Raja Dinendra Street, Kolkata-700 009, P.S. - Narkeldanga. 5. Sri Arup Kumar Dutta S/o Lt. Bhupendra Nath Dutta, 11/1C, Raja Dinendra Street, Kolkata-700 009, P.S. - Narkeldanga. 6. Sri Ambar Kumar Dutta S/o Lt. Bhupendra Nath Dutta, 11/1C, Raja Dinendra Street, Kolkata-700 009, P.S. - Narkeldanga. 7. Sri Anjan Kumar Dutta S/o Lt. Bhupendra Nath Dutta, 11/1C, Raja Dinendra Street, Kolkata-700 009, P.S. - Narkeldanga. 8. Sri Arnab Kumar Dutta S/o Lt. Bhupendra Nath Dutta, 11/1C, Raja Dinendra Street, Kolkata-700 009, P.S. - Narkeldanga. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Ms. Mousumi Bhowal , Advocate For the Opp. Party: Mr. Souradipta Banerjee, Advocate Dated : 12 Dec 2017 Final Order / Judgement Date of filing - 23.06.2014 Date of final hearing - 27.11.2017 The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of a couple being intending purchaser against the developer (Opposite Party No.1) and the Landowners (Opposite Party Nos.2 to 8) on the allegation of deficiency in services on the part of OPs in a consumer dispute of housing construction.
In a nutshell, Complainants' case is that on 18.07.2011 the complainants entered into an Agreement for Sale with the opposite parties to purchase of a self-contained flat measuring about 850 sq. ft. being Flat No.AS104 on the 1st floor and one open car parking space in the ground floor with common facilities and amenities in a proposed multi-storied building lying and situated at Premises No.11/1A, Raja Dinendra Street, P.S.- Narkeldanga, Kolkata - 700009 at a total consideration of Rs.22,01,500/- for the flat and Rs.1,50,000/- for the car parking space aggregating Rs.23,51,500/-. The complainants have stated that they have already made payment of Rs.13,52,000/- and in this regard, complainant no.1 has availed housing loan of Rs.20,00,000/- from Axis Bank and in every month the EMI of Rs.20,126/- is being paid for the flat and car parking space. The complainants stated that the developer was under obligation to handover the delivery of possession of the subject property within 24 months from the date of obtaining sanctioned plan from Kolkata Municipal Corporation (KMC). The complainants have also stated that they are ready to pay the remaining amount but the developer has failed to fulfil their promise to deliver the subject flat and the car parking space and in this regard, all their requests and persuasions turned a deaf ear. Hence, the complainants approached this Commission with prayer for directing the OPs to deliver possession, to execute the Sale Deed, to hand over the possession certificate, to pay compensation of Rs.10,00,000/- and litigation cost of Rs.50,000/-.
The Opposite Party Nos.1 & 5 to 8 by filing a joint written version in the form of affidavit-in-opposition has admitted the existence of the Agreement but it has been stated that the complainants have defaulted in payment as per schedule and as such an interest @ 18% p.a. shall be chargeable from them. The contesting opposite parties have also stated that the dispute between the parties involves dispute questions of fact and law which are required to be adjudicated by a competent Civil Court and this Forum has no jurisdiction to entertain the complaint.
On behalf of complainants, Sri Anindya Chatterjee, complainant no.1 has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by the contesting OPs.
On behalf of contesting OPs, Sri Asim Banerjee, OP No.1 being proprietor of M/s. A.S. Enteprises (developer/builder) has filed evidence through affidavit. However, the contesting opposite parties have not filed reply against the questionnaire put to them by the complainants.
Besides the evidence through affidavits, the parties have relied upon some documents including the registered Agreement for Sale dated 18.07.2011. I have scrutinised the pleadings, the evidence led by the parties and the documents filed by the parties including the copy of registered Agreement for Sale dated 18.07.2011.
Admittedly, the opposite party nos. 2 to 8 were the landowners in respect of a land measuring about 8 cottahs 6 chittaks 32 sq. ft. more or less lying and situated at Premises No.11/1A, Raja Dinendra Street, P.S.- Narkeldanga, Kolkata - 700009 within the local limits of Ward No.28 of Kolkata Municipal Corporation. On 22.01.2007 the landowners had entered into an agreement with the OP No.1 to raise a multi-storied building over the said property after demolition of the existing building. The fact remains that on 03.06.2010 the building plan was sanctioned by the KMC.
Being emboldened with the authority entrusted upon them, the OP No.1/developer for himself and being constituted Attorney of the landowners had entered into an agreement with the complainants to sell a self-contained flat measuring about 850 sq. ft. being Flat No.AS104 on the 1st floor and one open car parking space in the ground floor with common facilities and amenities in a proposed multi-storied building lying and situated at Premises No.11/1A, Raja Dinendra Street, P.S.- Narkeldanga, Kolkata - 700009 within the local limits of Ward no.28 of KMC at a total consideration of Rs.22,01,500/- for the flat and Rs.1,50,000/- for the car parking space aggregating Rs.23,51,500/-. The money receipts available with the record go to show that - (1) on 25.06.2011 an amount of Rs.10,00,000/- was paid to OP No.1 through Axis Bank Ltd., Service Branch, Kolkata; (2) Rs.52,500/- on 28.05.2011, (3) Rs.1,00,000/- on 23.05.2011 and (4) Rs.2,00,000/- on 16.02.2011. Therefore, the money receipts and the, memo of consideration proves the contention of the complainants that they have already paid Rs.13,52,000/- out of total consideration of Rs.23,51,500/-. Since the complainant no.1 has obtained loan of Rs.20,00,000/- from the bank certainly there would be no problem on the part of the complainants to pay the balance amount in order to get delivery of possession of flat and registration of flat.
The most important aspect of the case is that as per clause-10 of the Agreement, the developer was under obligation to deliver the subject flat and car parking space within 24 months from the date of obtaining sanctioned plan from the KMC. The overwhelming evidence on record indicates that the building sanctioned plan was obtained on 03.06.2010. Therefore, in accordance with the terms of agreement, the developer should have handed over the possession and to execute the Sale Deed within 02.06.2012. Undisputedly, the OP No.1/developer failed to keep his promise as per terms of the agreement. The developer was under obligation to inform the complainants by correspondences about their readiness and willingness to execute the Sale Deed after receipt of balance consideration amount.
The question of completion/construction of the building does not arise because at the instance of one Manash Dutta, one writ petition being WP/27324(W)/2014 was moved in the Hon'ble High Court at Calcutta and by an order the said writ petition was disposed of with a direction upon the Municipal Commissioner or his delegate to consider the representation of the petitioner dated 24.07.2012 at pages 20 & 21 of the petition as to whether the construction work undertaken by respondent nos. 6 to 10 in violation of sanctioned plan dated 03.06.2010 in respect of the premises in question. By an order dated 01.09.2014, the all types of construction works including addition and alteration works in respect of the premises in question has been stopped by the KMC.
Whatever dispute is there between the landowners and the developer, they can settle the same in an independent proceeding. As per Development Agreement entered into between the OP No.1 and OP Nos. 2 to 8, OP No.1 had/has the authority to sell the flats falling in its share. As per terms of the Development Agreement dated 22.01.2007, the landowners had given OP No.1 implied consent to transfer the property falling in its share. The rights of bonafide purchaser cannot be defeated only on the ground that a dispute is under consideration before the KMC for unauthorised construction.
In the case reported in (2008) 10 S.C.C. 345 [Faqir Chand Gulati - Vs. - Uppal Agemcies Pvt. Ltd.] the Hon'ble Supreme Court has observed - ".....where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the Civil Court or he can approach the Forum under Consumer Protection Act, for relief as a consumer, against the builder as a service-provider. Section 3 of the Act makes it clear that the remedy available under the Act is in addition to the normal remedy or other remedy that may be available to the complainant".
Applying the tests led down in the aforementioned case, it would reveal that the agreement between the OP Nos. 2 to 8 and the OP No.1 was an agreement for construction of a residential building. The complainants had entered into an agreement to purchase the subject flat and the car parking space which falls within the allocated portion of the builder. In another decision reported in 2014 (3) CPR 91 (Smt. V. Kamala & Ors. - Vs. - K. Rajiv, rep. By his GPA Holder, K.V. Babji & Ors.) the Hon'ble National Commission has observed - "an inter-se dispute between owners and builder cannot be permitted to be used as a ploy to wriggle out of obligations under agreements and leave buyer in lurch".
The Ld. Advocate for the contesting opposite parties has submitted that as the matter is under sub-judice before the Kolkata Municipal Corporation for adjudication in terms of the order passed by Hon'ble High Court in a Writ petition, the same cannot be entertained by this Commission. Such a submission could not impress me. In a decision reported in 2014 (4) CPR 681 (Indrani Chatterjee & Anr. - Vs. - AMRI Hospital, through its Management) the Hon'ble National Commission relying upon the decision of the Hon'ble Supreme Court reported in (2013) 7 SCC 622 (Guru Granth Saheb Sthan Meerghat, Vanaras - Vs. - Ved Prakash & Ors.) has observed -
"We are, therefore, of the view that the trial in criminal cases against the opposite party, is no ground for stay of proceedings before the Consumer Fora. As a matter of fact, having regard to the object and intend of the Act, summary trial of consumer complaint has to be given precedence over other cases, be it civil or criminal in nature. The question of double jeopardy, self-incrimination or the binding effect of the findings in summary proceedings under the Act, does not arise on facts, at hand. Accordingly, the preliminary objection fails". Therefore, the argument advanced by the Ld. Advocate for the contesting OPs in this regard does not stand. Moreover, when there is no order of stay or an order of injunction from any competent Court of law, in accordance with Section 3 of the Act, a Consumer Forum is competent enough to deal with the case.
The Ld. Advocate for the contesting OPs has further contended that as there are disputed questions of facts involved, the matter is not amenable before a Consumer Forum. This submission also does not have any force if we have a look to the observation of the Hon'ble Supreme Court reported in AIR 1996 SC 2508 (Bharathi Knitting Co. - Vs. - DHL Worldwide Express Courier Division of Airfreight Ltd.). In Paragraph-5 of the said decision, the Hon'ble Court has observed thus -
"In an appropriate case, where there is an acute dispute of facts, necessary the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate state law to have the 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".
The fact remains that the parties have signed the agreement with open eyes after evaluating its pros and cons and therefore, nothing can be added or detracted from the terms and conditions of the contract. In other words, the agreement for sale between the parties dated 18.07.2011 towers above the rest.
The facts and circumstances of the case indicate that the complainants being 'consumer' within the meaning of Section 2(1)(d)(ii) of the Act hired the services of the opposite parties on consideration to purchase of a flat and a car parking space at Premises No.11/1A, Raja Dinandra Street, P.S.- Narkeldanga, Kolkata - 700009 but the OPs, particularly the OP No.1/developer has failed to render the services in accordance with the terms of agreement and thereby deficient in services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
In view of the above, the complainants are entitled to the reliefs in part. In my view, a direction upon the OPs to execute the Sale Deed on payment of balance consideration of Rs.9,99,000/- by the complainants alternatively the OP No.1 shall refund Rs.13,52,000/- received by them along with an interest thereon @ 12% p.a. from the date of payments till its realisation. The OP No.1/developer has caused serious harassment and mental agony to the complainants and for such unethical act of the developer, they are liable to pay compensation which I assess at Rs.1,00,000/- besides handing over possession of the flat and car parking space and completion certificate. Under compelling circumstances, the complainants had to lodge this complaint and as such they are also entitled to litigation cost which I quantify at Rs.10,000/-.
Consequently, the complaint is allowed on contest against OP No.1 and OP Nos. 5 to 8 and exparte against the rest.
The opposite parties are jointly and severally directed to execute the Sale Deed in respect of the property as mentioned in Schedule 'B' to the Agreement for Sale dated 18.07.2011 within 60 days from the date subject to receipt of balance consideration amount of Rs.9,99,000/- to be payable to the OP No.1 alternatively OP No.1 to refund Rs.13,52,500/- along with interest thereon @ 12% p.a. from the date of respective payments till its realisation. In the event of execution of Sale Deed, the OP No.1 is also directed to deliver possession and to hand over completion certificate within 60 days from date. The OP No.1 is further directed to pay compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/- aggregating Rs.1,10,000/- in favour of the complainants within 30 days 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 to the case at once free of cost for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER