National Consumer Disputes Redressal
Asim Kumar Chattopadhyay & Anr. vs 1A. Smt. Laxmi Mukherjee & Ors. on 24 October, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 270 OF 2009 (Against the order dated 30.06.2009 in S.C Case No.7/O/05 (Old No.83 of 2004) of the State Commission, West Bengal) 1. Asim Kumar Chattopadhyay, S/o Late Devendra Nath Chattopadhyay Resident of 209, BT Road, 3rd Floor, Kolkata- 700036 2. Mrs. Paiya Chattopadhyay W/o Mr. Asim Kumar Chattopadhyay, Resident of 209, BT Road, 3rd Floor, Kolkata- 700036 ...... Appellants Versus 1A. Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1B. Sri Somnath Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1C. Sri Pijush Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1D. Smt. Iva Goswami, D/o Late Nilmony Mukherjee W/o Sri Kartik Chandra Goswami, 191 Goswami Para Road, Post and Police Station- Bali, District- Howrah, Pin- 711201 1E. Smt. Subha Khan Bhaduri, Late Nilmony Mukherjee, W/o Sanjay Narayan Khan Bhaduri, 14 Nittananda Nagar (east), PS Najirganj, Dist- Howrah, Pin- 711301 2A. Sri Prabhakar Banerjee, S/o Late Indubhusan Banerjee, 29/2/13 Motilal Maullick Lane, Kolkata- 700035 2B. Sri Saibal Mukherjee, S/o Late Nirmal Kumar Mukherjee, 79 Neogipara Road, Kolkata- 700036 (Joint executors of the estate of Late Nirmal Kumar Mukherjee (Original Respondent No.2)) .....Respondents FIRST APPEAL NO. 271 OF 2009 (Against the order dated 30.06.2009 in S.C Case No.8/O/05 (Old No.84 of 2004) of the State Commission, West Bengal) Dr. Sudhanshu Sekhar Patra S/o late Sannyasi Patra R/o 209, B T Road, 3rd Floor, Kolkata -700 036, Distt- North 24 Parganas PS Baranagar 2. Mr. Nibedita Patra W/o Dr. Sudhanshu Sekhar Patra R/o 209, BT Road, 3rd Floor, Kolkata -700036, Distt-North 24 Parganas PS Baranagar ...... Appellants Versus 1. a) Smt. Lakshmi Mukherjee 79, Neogi Para Road, Kolkata-700 036, PS Baranagar Distt- North 24 Parganas b) Shri Somnath Mukherjee 79, Neogi Para Road, Kolkata-700 036, PS Baranagar Distt- North 24 Parganas c) Shri Pijush Mukherjee 79, Neogi Para Road, Kolkata-700 036, PS Baranagar Distt- North 24 Parganas d) Smt. Iva Goswami, W/o Shri Kartick Chandra Goswami 191, Goswami Para Road, P.O. & P S- Bally, Distt- Howrah, Pin- 711 201 e) Smt. Subha Khan Bhaduri, W/o Shri Sanjoy Narayan Khan Bhaduri 14, Nityananda Nagar ( East), P.S. Nazirgunge, Distt- Howrah- 711109 2. Mr. Nirmal Kumar Mukherjee 3. Mr. Swapan Kumar Mukherjee S/o of Late Joygopal Mukherjee 79, Neogi Para Road, PS Baranagar, Kolkata- 700 036 Distt- North 24 Parganas .....Respondents Shri Nilmony Mukherjee has since died on 8.11.2009 FIRST APPEAL NO. 319 OF 2009 (Against the order dated 30.06.2009 in S.C Case No.8/O/05 (Old No.84 of 2004) of the State Commission, West Bengal) 1 (a) Smt. Lakshmi Mukherjee W/o Late Nilmony Mukherjee 79, Neogi Para Road, Kolkata-700 036, b) Sri Somnath Mukherjee S/o Late Nilmony Mukherjee 79, Neogi Para Road, Kolkata-700 036 (c) Sri Pijush Mukherjee S/o Late Nilmony Mukherjee 79, Neogi Para Road, Kolkata-700 036 d) Smt. Iva Goswami Wife of Sri Kartick Chandra Goswami 191, Goswami Para Road PO and PS Bali Dist Howrah, Pin- 711201 e) Smt. Subha Khan Bhaduri Wife of Sri Sanjoy Narayan Khan Bhaduri 14, Nityananda Nagar ( East) PS Nazirganj, Dist Howrah, Pin 711301 2. (a) Sri Provakar Banerjee S/o late Indubhusan Banerjee 29/2/13, Motilal Mullick Lane Kolkata 700035 (b) Shri Saibal Mukherjee S/o Late Nirmal Kumar Mukherjee 79, Neogi Para Road Kolkata 700036 (Joint Executors of the estate of Late Nirmal Kumar Mukherjee ( Original Appellant no.2)) 3. Swapan Kumar Mukherjee 79, Neogi Para Road Kolkata 700036 ...... Appellants Versus 1. Sudhanshu Sekhar Patra S/o Late Sannayasi Patra 2. Mrs. Nibedita Patra W/o Sudhanshu Sekhar Patra Both Resident of 209, BT Road 3rd Floor, Kolkata - 700036 .....Respondents FIRST APPEAL NO. 320 OF 2009 (Against the order dated 30.06.2009 in S.C Case No.7/O/05 (Old No.83 of 2004) of the State Commission, West Bengal) 1 (a) Smt. Lakshmi Mukherjee W/o Late Nilmony Mukherjee 79, Neogi Para Road, Kolkata-700 036, b) Sri Somnath Mukherjee S/o Late Nilmony Mukherjee 79, Neogi Para Road, Kolkata-700 036 (c) Sri Pijush Mukherjee S/o Late Nilmony Mukherjee 79, Neogi Para Road, Kolkata-700 036 d) Smt. Iva Goswami Wife of Sri Kartick Chandra Goswami 191, Goswami Para Road PO and PS Bali Dist Howrah, Pin- 711201 e) Smt. Subha Khan Bhaduri Wife of Sri Sanjoy Narayan Khan Bhaduri 14, Nityananda Nagar ( East) PS Nazirganj, Dist Howrah Pin 711301 2.Nirmal Kumar Mukherjee 79, Neogi Para Road Kolkata 700036 3. Swapan Kumar Mukherjee 79, Neogi Para Road Kolkata 700036 ...... Appellants Versus 1. Mr. Asim Kumar Chattopadhyay S/o Late Devendra Nath Chattopadhyay 2. Mrs. Papiya Chattopadhyay W/o Mr. Asim Kumar Chattopadhyay Both Resident of 209, BT Road 3rd Floor, Kolkata - 700036 .....Respondents BEFORE: HONBLE MRS. VINEETA RAI, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER IN FA No. 270-271 /2009 For the Appellant : Mr. Kunal Chatterji, Advocate and Ms. Maitrayee Banerjee, Advocate along with both appellants in person For the Respondents : Mr. Sukumar Pattojshi, Sr. Advocate with Mr. Sanjoy Kumar Ghosh, Mr. Prabir Basu, Ms. Rupali S. Ghosh, Advocates IN FA No. 319-320 /2009 For the Appellants : Mr. Sukumar Pattojshi, Sr. Advocate with Mr. Sanjoy Kumar Ghosh, Mr. Prabir Basu, Ms. Rupali S. Ghosh, Advocates For the Appellant : Mr. Kunal Chatterji, Advocate and Ms. Maitrayee Banerjee, Advocate PRONOUNCED ON: 24th October, 2013 ORDER
PER MR. VINAY KUMAR, MEMBER These four appeals arise from two very similar orders passed by the West Bengal State Consumer Disputes Redressal Commission in two independent complaints. SC Case No.7/0/05 was filed by Mr. Asim Kumar Chattopadhyay with his wife as Complainant No.2. SC Case No.8/0/05 was filed by Dr. Sudhanshu Sekhar Patra with his wife as the second Complainant. Both complaints were against the same builders/OPs and were taken up for consideration together, by the State Commission.
2. In both cases, the State Commission has made the following award:-
In view of the delay in delivery of possession of the flat and withholding of other facilities including deed of conveyance leading to various proceeding including the present one compelling the complainants to suffer mental agony as also financial loss, OPs are liable to pay to the complainants compensation of Rs.1,50,000/-. The OPs are liable to execute and register the deed of conveyance for the sale of the flats to the complainant as no defence has been shown for not doing the same as is required to be done under the agreement. The balance consideration, if any, may be adjusted against the total compensation payable.
We direct the OPs to pay further compensation of Rs.1,50,000/- on account of the motor garage to the complainants and consideration amount will be reduced by Rs.1,00,000/- at the agreed price.
The OPs are also directed to install lift in the lift well constructed in the premises within a period of three months from this order.
The OPs are also directed to execute and register the deed of conveyance for the sale of the flats in favour of the complainants within two months from the date of this order and in default thereof the complaints will be entitled to get the conveyance registered through the machinery of the Forum.
The OPs are directed to pay litigation cost of Rs.30,000/- to the complainant.
All payments including compensation are to be made by OPs to complainants within 60 days from the date of this order and in default the complaints will be entitled to recover the same in accordance with law along with interest at the rate of 9% per annum for the period of default.
3. In the above back ground, the four appeals are taken up for disposal through this common order. During pendency of these appeals, OP No.1, Nilmony Mukherjee, reportedly passed away on 8.11.2009. His legal representatives were therefore, permitted to be brought on record. In another significant development, the OPs, in compliance with the direction of this Commission, have installed and operationalised a lift in the concerned building. A statement was made in this behalf by learned counsel, Mr S.K.Pattjoshi on 18.8.2010 before this Commission.
4. In both cases the Complainants have filed their appeals seeking enhancement of compensation to Rs.18 lakhs and in respective cross appeals, prayer for setting aside the impugned order has been made on behalf of the opposite parties. The case of the builders/Opposite parties has been argued by Mr S.K.Pattjoshi assisted by Mr. Sanjoy Kumar Ghosh and Mr. Prabir Basu, Advocates. On the other hand, the appeals of the two Complainants have been argued by Mr. Kunal Chatterji, Advocate together with Ms. Maitrayee Banerjee, Advocate. We have perused the records of the four appeals and have heard the respective counsels for the two sides.
5. The main ground pressed on behalf of the appellants/Complainants relates to failure of the OP/builder to provide 150 sq. ft. motor garage. As per the memorandum of appeals, the State Commission has exceeded its jurisdiction by accepting the contention of the OPs that in view of subsequent transfer of rear portion of their land by the OP to his sons, the provision of garage had become impossible. It was further argued by learned counsel for appellants/Complainants that under Clause 3(iv) of the agreement executed between the parties, total consideration of Rs.12 lakhs was towards a flat of 1900 sq. ft. together with a motor garage of 150 sq. ft. This agreement is dated 31.5.2000. By a subsequent gift deed the builder had chosen to gift away this land which was meant for the garage. Learned counsel further argued that even now garage can be constructed in view of the letter written by the competent authority and Sub- Divisional Officer, Barrackpur on 5.9.2003 to the Chairman Baranagar Municipality. Under this letter, the gift deed was required to be treated as a nullity, in terms of the provision in Section 5 (3) of UL (CR) Act, 1976.
6. Mr S.K.Pattjoshi, Senior Advocate, graciously conceded the point that non provision of the garage was a direct violation of the agreement and hence a deficiency of service. But, responding to the argument that even now it was possible for the OPs to provide the garage, he vehemently argued that oHo this Commission is not competent to issue a direction for the same, in view of the provision in Section 14 of the Consumer Protection Act 1986. This provision allows the consumer fora to grant one or more of the reliefs listed therein, if they come to a conclusion that the goods or the services, as the case may be suffered from any defects contained in the complaint. Learned counsel argued that while this gives wide powers to the consumer fora to grant adequate relief to the consumer, the power under this provision does not extend to enforcing specific performance of the contract. The second leg of the argument of Shri Pattjoshi was that the land in question was no longer available as District Magistrate North 24 Pargana District had passed an order on 24.6.2013 vesting the same in the State, consequent upon withdrawal of exemption under the Urban Land Ceiling Act, vide order No.1436-UL/O/II.
In the above background, learned counsel for the appellants/Complainants argued that compensation of Rs.1.5 lakhs awarded in this behalf by the State Commission is grossly inadequate in comparison with the enormity of the conduct of the OPs, which has resulted in long term inconvenience to the Complainants.
A perusal of the impugned order shows that on the question of failure to provide the garage the State Commission has given full consideration to the evidence on record and arrived at the following conclusion As regards the claim for motor garage of 150 sq. ft., we find that the same is duly provided in the agreement.
Factually the same has not been disputed by the OPs but it is stated in their written version that the said provision was included by mistake. It is contended that OPs are unable to provide the said motor garage as the space wherein the said motor garage was indicated in the sanctioned plan, does not belong to OPs and such space is no more available for construction of motor garage and, therefore, pleading impossibility of execution, OPs asked for refusal of the claim applying the provision of Section 12 of the Specific Relief Act. We have considered the provisions of Section 12 as referred to. In the present case the OPs not only provided the said motor garage in the agreement but also in the sanctioned plan by the municipality and, the OPs themselves changed the situation by making a gift of the said land in favour of their sons on 27.06.2003 long after the agreement was executed in May, 2000. Though donees are also bound as they got the property by a deed of gift from the OPs and thus stepped into shoes of the doners but as the donees have not been made parties to this proceeding appropriate order cannot be passed against the donees. But for not providing the motor garage in the aforesaid manner the OPs action became deficient in service as not only the complainants suffered inconvenience for want of motor garage and as the flats suffered in value being without the facility of motor garage because of the voluntary action of the OPs in making a gift of the property, but also sale of 150 sq. fit. being impossible, less area was being sold.
7. The above conclusion has been questioned in the appeal filed by the appellants contending that the State Commission has illegally passed an order reducing the consideration amount of the flat, while it does not have powers to over right the terms of the agreement between the parties.
We find this argument completely unacceptable. As already observed, Clause 3 (iv) of the Agreement between the two parties very specifically provides for total consideration of Rs.12 lakhs for a flat of 1900 sq. ft. together with a motor garage of 150 sq. ft. Having deprived the Complainant of the motor garage, in blatant and indefensible violation of the agreement, it does not lie in the mouth of the OPs to question the conclusion reached by the State Commission that their conduct was not only a deficiency of service but had also resulted in depriving the Complainant of 150 sq. ft. of area included in the agreement of sale. We therefore, have no hesitation in rejecting this argument.
8. On the question of compensation, the appellants/ Complainants have, as already noted, sought enhancement from Rs.1.5 lakhs to Rs.18 lakhs. Neither in the appeal memorandum nor in the arguments of their counsels any attempt has been made to justify the basis of seeking such multi-fold enhancement in compensation. We have also noted that during the course of the present proceedings, the lift has been installed in this building in the year 2010, though after a lapse of nearly 8 years from physical delivery of flats. We therefore, find no justification for enhancement of compensation.
9. From the detailed consideration above, we conclude that the orders of the State Commission are based on correct appreciation of the evidence on record. There are no grounds to interfere with the same. Consequently, all four appeals are dismissed. The orders of West Bengal State Consumer Disputes Redressal Commission in SC Case NO.7/0/05 and 8/0/05 are confirmed. Parties to bear their own costs.
....
(VINEETA RAI) PRESIDING MEMBER ....
(VINAY KUMAR) MEMBER S./-