National Consumer Disputes Redressal
Kolkata Fish Supplier Welfare ... vs R.G. Nirman Private Limited on 29 December, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 231 OF 2022 1. KOLKATA FISH SUPPLIER WELFARE ASSOCIATION Through its Secretary -Atul Chandra Das,
Having its Registered Office at : Room No.F - 77,
First Floor, Kamalalaya Centre,
156 A, Lenin Sarani, Police Station Taltala, KOLKATA - 700013 WEST BENGAL ...........Complainant(s) Versus 1. R.G. NIRMAN PRIVATE LIMITED Having its Registered Office at : EE - 04, Sector - II,
Salt Lake, Police Station East Bidhannagar, KOLKATA - 700091 WEST BENGAL ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : MR. KUNAL CHATTERJI, ADVOCATE
MR. SUMITAVA CHAKRABORTY, ADVOCATE
MR. ROHIT BANSAL, ADVOCATE FOR THE OPP. PARTY : MR. MAINAK BOSE, ADVOCATE
MR. ANAND SUKUMAR, ADVOCATE
MR. BHUPESH PATHAK, ADVOCATE
Dated : 29 December 2023 ORDER
1. Heard Mr. Kunal Chatterji, Advocate, for the complainant and Mr. Mainak Bose, Advocate, for the opposite party.
2. Kolkata Fish Supplier Welfare Association has filed above complaint for directing the opposite party to (i) pay Rs.224020242/- with interest @24% per annum, as compensation, for the deficiency in service; (ii) pay Rs.10000000/-, as compensation for mental agony and harassment; (iii) pay Rs.1000000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts of the case.
3. The complainant stated that Kolkata Fish Supplier Welfare Association is an Association, formed with an object of self-employment of its members, using their skill and labour under the head of mercantile retail and registered under West Bengal Societies Registration Act, 1961. The complainant purchased 4047 sq.mt. land of Plot No.6/2, Block No. CF in AA-1C, at Mouza Thakdari, J.L. 19, Premises No.06-0175, Street No.0175, New Town, Police Station and Post Office Newtown, Kolkata-700156, for opening a market in order to promote cooperative movement, from State of West Bengal through West Bengal Infrastructure Development Corporation Limited, through sale deed dated 08.12.2010 and took possession over it vide memorandum of possession dated 04.01.2011. R.G. Nirman Private Limited (the OP) was a company, registered under the Companies Act, 2013 and engaged in development and construction of group housing projects. For development and construction of multi-storied building on above land, the complainant and the OP entered into a Memorandum of Understanding (MOU) dated 28.04.2011, under which, constructed area had to be shared in the ratio of 45:55 share between the complainant and the OP and entire cost of construction had to be borne by the OP. The complainant applied for sanction of building plan, which was sanctioned by Kolkata Development Authority on 25.07.2012 and revalidated on 01.06.2018. The developer agreed to pay the entire cost of Rs.6787631/- incurred in getting sanction of layout plan. In furtherance of the MOU, the parties entered into a Development Agreement dated 03.05.2013 and a Supplementary Development Agreement dated 18.05.2015 and share of the parties were reallocated in the ratio of 36.29:63.71 of the complainant and the OP but ratio of the share in basement remained the same. The OP deposited Rs.4.5 crores with the complainant as interest free refundable security. The complainant entered into a tenancy agreement with Reliance Corporate IT Park Limited dated 10.04.2018 of entire first floor and ground floor, for monthly rent of Rs.654830/-, from 01.01.2021. Under the Development Agreement, the project had to be completed till 12.05.2018, this date was extended till 31.12.2019, vide letter dated 18.07.2018. A memorandum of handing over possession of ground, 1st and 2nd floor of the complainant's allocation was executed between the parties on 28.09.2018 and the complainant returned Rs.2.4 crores from the refundable security. As the complainant had prospective tenants, as such, for early completion of the construction, the complainant undertook the works of HVAC, flooring, service lift, fire system at its own level. By two separate agreements dated 18.03.2020, handing over car parking and common utilities area, were done. The complainant made survey of the said building and astonished to see that the OP had not acted in terms of the MOU and Development Agreement i.e. (a) service lift was not installed; (b) Effluent Treatment Plant was not established; (c) two meter site for electricity department was not left; and (d) delay compensation @Rs.5/- lakhs per months, as agreement was not made. For the purposes of mitigating grievances of the complainant, a meeting was held on 27.07.2020, in which, the deficiencies were pointed out by the complainant. The mediator, vide email dated 31.03.2021 send the estimate of Rs.11510993/- of the works will be done by the OP and part of it had to be done at its own costs. As the OP failed to handover possession of the building in habitable condition, the complainant suffered loss of rent w.e.f. January, 2021. The complainant paid Rs.3466632/- as property tax. Diesel generator set was not installed at proper platform. For casting it at proper platform Rs.153780/- is required. The complainant is paying electricity charged from July, 2022 and paid Rs.1046645/-. The complainant incurred Rs.497731/- on security guard. A quotation for installation of the lift was obtained, which is of Rs.895542/-. Basement of the lift has been damaged, which requires repair and cost is estimated to Rs.555212/-. The complainant paid annual maintenance charges of Rs.155156/- for the year 2021-2022. The OP did not handover possession of 3rd floor and 5th floor to the complainant on the ground that complainant had not refunded balance refundable security although, cost of these floors is Rs.156494700/-. The OP filed Misc. (ARB) Case No.65 of 2022 under Section 9 of Arbitration and Conciliation Act, 1996, in which commercial court refused injunction vide order dated 31.08.2022. The OP filed FMA (ARBA) No.1250 of 2022 and obtained injunction order dated 28.09.2022, for maintaining status quo, from High Court. Due to non-fulfilling the obligations on the part of the OP, the complainants has suffered loss of Rs.224020242/-. On these allegations, the complaint was filed on 20.11.2022.
4. The OP filed its written reply in the complaint on 01.03.2023. The OP also filed IA/2595/2023, for dismissing of the complaint on the ground that Commercial Court, Rajarhat, North 24 Parganas vide order dated 21.12.2022 directed the parties to approach Arbitral Tribunal. The complainant entered into a tenancy agreement with Reliance Corporate IT Park Limited dated 10.04.2018 of entire first floor and ground floor, for monthly rent of Rs.654830/-. The complainant executed sale deed dated 20.01.2023 in favour of M/s. Ashore Exim Pvt. Ltd. and sale deed dated 22.01.2023 in favour of M/s. Maya Automobiles of second floor accommodation. From these transactions, it is proved that the complainant has availed services of the OP for commercial purpose and consumer complaint is not maintainable. The OP also filed IA/2594/2023, for referring the dispute as raised in the complaint to an Arbitrator, in view of the order of Commercial Court dated 21.12.2022.
5. The complainant IA/6990/2023, for dismissing the complaint as withdrawn in view of settlement dated 04.05.2023 between the parties. IA/6990/2023 was dismissed as withdrawn by order dated 01.06.2023. Thereafter, the OP filed IA/10316/2023 on 07.08.2023, for dismissing the complaint, in view of settlement dated 04.05.2023 between the parties. The complainant filed its reply to IA/10316/2023 and stated that IA/2595/2023 filed by the OP was listed on 13.04.2023 and hearing of this IA was deferred for three months as the issue, as to whether a trust can approach the consumer foras under Consumer Protection Act, was pending before larger Bench of Supreme Court. Then the OP approached the complainant to settle the dispute. The parties agreed for settlement and terms of the settlement were reduced in writing. While preparing the draft, one specific clause that the opposite party will not disturb the right and possession of the complainant, was conspicuously omitted in the final draft though corresponding obligation qua the complainant towards the OP was mentioned. The complainant signed the agreement on 04.05.2023 in bonafide belief of the OP and on the assumption that everything which was discussed, had been included in it. At the time of filing IA/6990/2023, this omission was not noticed. After filing IA/6990/2023, the complainant noticed that the OP had played mischief by omitting certain terms in the final settlement deed dated 04.05.2023, as such, IA/6990/2023 was got withdrawn, vide order dated 01.06.2023. The OP did not withdraw the complaint lodged against the complainant before Newtown Kolkata Development Authority, against the sanction granted for installation of service lift, in favour of the complainant, claiming to be unauthorised. The OP did not take any step for renewal of Fire Licence from statutory authority. Due to fraud, committed by the OP in obtaining signature of the complainant on the settlement deed dated 04.05.2023, the complainant resiled from it and informed the OP through letter dated 01.08.2023. The settlement, not only includes the subject matter of dispute in this complaint, but also other disputes. Terms of the settlement are unjust and unfair as such no order can be passed on it. Under Order XXIII Rule 3 C.P.C., the suit can be decided on the basis of lawful agreement and not on fraudulent agreement. IA/10316/2023 is liable to be rejected.
6. The OP filed rejoinder affidavit in the IA and stated that development and construction was carried out by the OP in terms of Memorandum of Understanding dated 28.04.2011, Development Agreement dated 03.05.2013 and a Supplementary Development Agreement dated 18.05.2015. Possession was handed over through the Agreement dated 28.09.2018, possession of car parking and common utilities area were handed over through two separate deeds dated 18.03.2020. After arising the dispute between the parties, the OP sought for reference to the Arbitrator, while the complainant filed this present complaint. Thereafter, the entire dispute has been settled between the parties through settlement deed dated 04.05.2023, which was signed by the President and the Secretary of the complainant. Under the settlement dated 04.05.2023, the OP gave up its right to refundable security of Rs.2.1 crore. The OP withdrew F.M.A.T. (ARBAWARD) No.10 of 2023, pending before High Court at Calcutta, vide order dated 19.05.2023. The complainant filed IA/6990/2023, for dismissing the complaint as withdrawn in view of settlement dated 04.05.2023 but after taking advantage in settlement dated 04.05.2023, withdrew it on 01.06.2023. The order dated 19.05.2023 is based on settlement dated 04.05.2023 and is enforceable order. Letter dated 01.08.2023 is baseless.
7. We have considered the arguments of the counsel for the parties and examined the record. Under Development Agreement dated 03.05.2013 and Supplementary Agreement dated 18.05.2015, the project had to be completed till 12.05.2018. The complainant extended this date till 31.12.2019, vide letter dated 18.07.2018. The OP completed the construction within extended period and applied for issue of "occupation certificate". The OP obtained Fire Safety Certificate on 09.01.2020 and "occupation certificate" on 18.03.2020. The OP handed over possession of car parking and common utilities area through two separate deeds dated 18.03.2020. The complainant entered into a tenancy agreement with Reliance Corporate IT Park Limited dated 10.04.2018 of entire first floor and ground floor, for monthly rent of Rs.654830/-. The complainant executed sale deed dated 20.01.2023 in favour of M/s. Ashore Exim Pvt. Ltd. and sale deed dated 22.01.2023 in favour of M/s. Maya Automobiles of second floor accommodation. At the time of handing over possession on 18.03.2020, the dispute arose between the parties in relation to refund of the balance refundable security and GST. Out of Rs.4.5 crore of refundable security, the complainant returned Rs.2.4 crore in 2018 and Rs.2.10 crore was not refunded, therefore, the OP retained some portion of building, which was in allocation of the complainant.
8. In the meantime, one more dispute arose between the parties in respect of installation of service lifts. The OP filed Misc. Case (ARB) No.65 of 2022, in September, 2022, on the allegation of unauthorised installation of two service lifts and payment of balance refundable security and GST. The OP obtained injunction order dated 28.09.2022, for maintaining status quo, from Calcutta High Court in FMA (ARBA) No.1250 of 2022. Thereafter, Commercial Court, vide order dated 21.12.2022, restrained the complainant from dealing with, alienating and encumbering the entire 5th Floor of the G + 6 storied building.
9. Then the parties came for talks of settlement and settled their disputes through settlement deed dated 04.05.2023, which was signed by the President and the Secretary of the complainant and four witnesses. As per settlement deed, the OP handed over entire area of the allocation of the complainant and waived Rs.2.1 crore, of refundable security for upgradation/installation for betterment and gainful utilization of the building, a list of such installation is annexed with this deed. The OP agreed to withdraw FMAT (ARBAWARD)/10/2023 and AP/802/2022. The complainant agreed to withdraw CC/231/2022. The OP withdrew FMAT(ARBAWARD) No.10 of 2023, pending before High Court at Calcutta, vide order dated 19.05.2023. The counsel for the OP gave statement on 07.11.2023 that the OP will filed application for withdrawal of Application No.802 of 2022 filed under Arbitration and Conciliation Act, 1996, pending before Calcutta High Court. Although the complainant filed IA/6990/2023, for withdrawn this complaint but IA/6990/2023 was got dismissed as withdrawn by order dated 01.06.2023.
10. In the letter dated 01.08.2023, the complainant has stated that it was preposterous that where you have failed to take steps in accordance with the compromise agreement dated 04.05.2023 and you have acted in breach of the development agreement as well as compromise agreement dated 04.05.2023. In this letter, the complainant has not made any allegation that any agreed term was not incorporated in the settlement deed dated 04.05.2023. In the written reply filed in present IA, the complainant took ground that the OP had played mischief by omitting certain terms in the final settlement deed dated 04.05.2023, as such, IA/6990/2023 was got withdrawn, vide order dated 01.06.2023. The OP did not withdraw the complaint lodged against the complainant before Newtown Kolkata Development Authority, against the sanction granted for installation of service lift, in favour of the complainant, claiming to be unauthorised. The OP did not take any step for renewal of Fire Licence from statutory authority. Due to fraud, committed by the OP in obtaining signature of the complainant on the settlement deed dated 04.05.2023, the complainant resiled from it and informed the OP through letter dated 01.08.2023. In the written reply, entirely new plea have been raised, as such, written reply is an afterthought. The complainant could not file affidavit of any witness, out of four witnesses to support its allegation that any agreed term was not incorporated in the settlement deed dated 04.05.2023. The complainant has not raised any plea of undue influence or misrepresentation. The complainant has failed to show that the settlement deed dated 04.05.2023 is unlawful.
ORDER
In view of the aforesaid discussions, IA/10316/2023 is allowed. The complaint is dismissed, in view of settlement dated 04.05.2023 between the parties.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER