State Consumer Disputes Redressal Commission
Mrs. Nilam Choudhary & Another vs Merlin Developers & Another on 20 June, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : CC/08/65 DATE OF FILING : 25.11.2008 DATE OF FINAL ORDER: 20.06.2013 COMPLAINANTS 1. Mrs. Nilam Choudhary Wife of Mr. Shyam Sundar Choudhary 2. Mr. Shyam Sundar Choudhary S/o Late Radheyshyam Choudhary Both of 4, Paddapukur Road, P.S. Bhowanipore Kolkata-700 020. OPPOSITE PARTIES 1. Merlin Developers 2. Merlin Projects Limited Both carrying on business at Merlin House, 79, Sambhu Nath Pandit Street, P.S. Bhowanipore, Kolkata-700 020. BEFORE : HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT MEMBER : MR. S.COARI MEMBER : MRS. MRIDULA ROY FOR THE COMPLAINANTS : Mr. S.Roy Choudhury, Mr. Koushik Mondal, Ld. Advocates FOR THE RESPONDENT : Mrs. Arundhati Mukherjee, Mrs. Sanjukta Mukherjee, Mr. Avirup Chatterjee, Ld. Advocates : O R D E R :
MR. S.COARI, LD. MEMBER The present complaint case has been preferred by the complainants, namely, Mrs. Nilam Chaudhary and Mr. Shyam Sundar Choudhary, against the Ops, namely, Merlin Developers and Merlin Projects Limited, thereby praying for allotment of Flat Nos. 15C and 15CU on the 15th floor of the project with two open car parking spaces in the premises bearing No. 24, Prince Anwar Shah Road, Kolkata-700 033, in terms of the allotment letter issued by the OP No. 1 dt. 11.1.2005 and also effecting possession in respect of those two flats in favour of the complainants in a complete state in all respects and with a direction upon the Ops to execute and register the deed of conveyance in favour of the complainants on receiving the entire consideration money as per schedule of payment to be provided by the Ops, as mentioned in the Letter of Allotment along with a further prayer for compensation to the tune of Rs. 20,00,000/- and a further prayer for restraining the Ops from creating any third party interest in respect of the scheduled properties being Flat Nos. 15C and 15CU without the permission of this Commission.
The complainants case, in brief, is that the complainants after observing all the requisite formalities have booked two flats on the 15th floor of the scheduled complex being Flat Nos. 15C and 15CU on payment of booking amount to the tune of Rs. 1,00,000/- to the Ops, who have subsequently cancelled the same by a letter dt. 11.1.2005 without assigning any valid an cogent grounds.
According to the complainants, the Ops have cancelled the booking on some vague and wild grounds, mainly on the ground of pendency of a litigation involving the scheduled property. It is the further case of the complainants that initially the Ops assured the complainants that in case of stoppage of the project work, the complainants need not worry because as and when the project work would commence, the complainants right of purchase in respect of the two flats will remain and the Ops would accommodate the complainants accordingly. But, in clear violation of the aforesaid understanding and assurance, the Ops have cancelled the booking and tried to refund the booking amount along with some interest to the complainants, which the complainants have refused to accept. Subsequently, from the website the complainant could come to know that the Ops had no intention to sell the flats in question, which was agreed upon to be sold to the complainants. According to the complainants, such act on the part of the Ops tantamounts to unfair trade practice and with the sole intention of illegal gain the Ops have adopted such unfair means and practice so as to deprive the complainants of purchasing the flats in question for valuable consideration and hence, the petition of complaint for proper redressal.
The Ops are contesting the case by filing two separate written versions thereby denying and disputing all the material averments mentioned in the petition of complaint contending, inter alia, that the complainants were duly informed about the present situation and according to that the Ops did send the booking money along with interest to the complainants, which the complainants have refused to accept for reasons best known to the them. It is the further case of the Ops that due to litigation and other intervening circumstances the sanctioned plan in respect of the project in question had to be changed and modified, which has resulted in enhancement of booking money. The complainants were given opportunity for fresh booking in order to resolve the dispute, but the complainants have not accepted such proposal and for that the Ops should not be held responsible. The complainants having not approached this Commission with clean hands, they are not entitled to the reliefs as prayed for. The petition of complaint having been filed on all false and baseless allegations the same is liable to be dismissed.
Along with the present complaint case, the Misc. Application bearing No. MA-230/2013, which has been filed by the OP No. 1, i.e. Merlin Developers, thereby praying for dismissal of the petition of complaint and staying the further proceedings of the present complaint case till the disposal of the Misc. Application, is also considered. The main contention of the Misc. Applicant is similar to the pleas and points raised by the Ops in the complaint case along with a further plea that the provisions of Section 35 of the Stamp Act having not been complied with by the complainants, the present petition of complaint is not maintainable. Moreover, the controversy between the parties can at best be adjudicated under the provisions of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. Since West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 is a subsequent legislation than that of the Consumer Protection Act, the provisions of the Act, which are the result of a subsequent legislation, will always prevail over the previous Act and considering all these aspects the Misc. Application should be allowed thereby dismissing the petition of complaint.
Upon pleadings of the parties the following points are to be considered for proper adjudication of the present complaint case.
1. Is the petition of complaint maintainable?
2. Are the Ops guilty of unfair trade practice, as claimed by the complainants?
3. Are the complainants entitled to the reliefs as prayed for?
DECISION WITH REASONS All the points including the Misc.
Application bearing No. MA-270/2013 are taken up together for consideration for the sake of convenience.
At the time of hearing the Ld. Advocate for the OP No. 1 has submitted before us that in this case it is an admitted position that after the issuance of the allotment letter to the complainants some unforeseen events did crop up, namely, litigations, etc., due to which the project work had to be suspended.
According to the Ld. Advocate, when after the lapse of some time the project work commenced the plan for the project had to be modified and consequently, the booking price had to be increased.
The complainants were all along aware of all these developments, but they never accommodated the Ops in the matter of pursuing the procedure of purchasing and selling of the flats with a practical approach. As the complainants did not care to submit a fresh application for allotment of flats, there was no alternative left before the Ops but to cancel the allotment letter so issued in favour of the complainants by the Ops. According to the Ld. Advocate, the Ops did not simply cancel the allotment, but at the same time the Ops did refund the allotment/booking money to the complainants along with interest. But the complainants for reasons best known to them have refused to accept the money along with interest so refunded to the complainants.
According to the Ld. Advocate, there was no alternative left before the Ops but to close the chapter so far as it related to allotment/selling/purchasing the flats in respect of the complainants under consideration. While elaborating on this point, the Ld. Advocate for the OP has submitted before us that when in the year 2005 the complainants wanted to purchase the flats in question by paying the booking money, the price of the flats were around Rs. 40.00 lakhs. But with the passage of time and price hike of the building materials, the price of the flats got increased automatically, which was completely beyond the control of the Ops. According to the Ld. Advocate, all these factors and changed scenario compelled the Ops to modify the project plan and after settling of the same, the price of the flats had to be recast and the complainants were given an opportunity to apply for fresh booking, which the complainants had blatantly refused.
According to the Ld. Advocate for the OP No. 1, all these facts clearly go to show that there is no deficiency in service and/or unfair trade practice at the instance of the Ops, as claimed by the complainants. Moreover, according to the Ld. Advocate for the OP No. 1, the provisions of Section 35 of the Indian Stamp Act have not been complied with by the complainants, nor the provisions of the Consumer Protection Act are attracted in a case of present nature. In this regard, the Ld. Advocate for the OP No.1 has submitted that the provisions of West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 are very much applicable to the dispute of present nature and the complainants having chosen a wrong forum, the petition of complaint is bound to be rejected and considering all these aspects there appears no merit in the present petition of complaint, which should be dismissed.
We have duly considered the submissions so put forward on behalf of the OP No. 1 and have also gone through the materials on record including the pleadings of the parties and also the Misc. Application and find that in this case the complainants have come forward with a case to the effect that in spite of the complainants bonafide booking of two flats in the project of the Ops by making payment of booking money, the OPs initially avoided to complete the construction with a false assurance to the effect that due to some unavoidable circumstances including pendency of litigation, etc. the construction work had to be stopped and as and when the same would resume, the complainants will be given due priority. It is the further case of the complainants that some time thereafter from the website the complainants came to know that the Ops have illegally without any rhyme and reason transferred the flats to a third party thereby depriving the bonafide purchasers like the complainants of their valuable right to have the flats in the project in question. According to the complainants, such illegal acts on the part of the Ops tantamount to unfair trade practice and hence, the petition of complaint for proper redressal.
The Ops, on the other hand, have tried to put up a case to the effect that though the complainants booked two flats in the project in question, but due to some unavoidable circumstances, the construction of the project had to be stopped and subsequently, when the litigation came to an end, the construction of the project resumed and by that time there was price hike and modification of the site plan, due to which the complainants were asked to file fresh application for booking the flats in the project in question, which the complainants refused. The Ops did return the booking money along with interest to the complainants, but for reasons best known to the complainants they have refused it. In the absence of any deficiency in service and/or unfair trade practice on the part of the Ops the petition of complaint is liable to be dismissed.
We have carefully gone through the pleadings of the parties and the materials on record. As regards the contention of the Ops that they asked the complainants to apply afresh after modification of the plan, we find that there is no document from the side of the Ops to substantiate this point. Moreover, we find that it is an admitted position that at the very initial stage of the present petition of complaint, vide Order dt. 31.03.2009, there was an order restraining the Ops from allotting, transferring and/or alienating the flats in question to a third party until further orders. The said order was passed after a contested hearing.
But, unfortunately, in spite of existence of the aforesaid order, we find that the Ops have transferred the flats in question without making any provision for the complainants to have those two flats in the project in question, which, in our opinion, is a blatant and intentional disobedience of this Commissions order at the instance of the Ops. Moreover, from the materials on record we find that it has become evident that by depriving the complainants from having/owning two flats in the project in question, the Ops did adopt a very deceitful means, which is not at all permissible under the law and this act on the part of the Ops clearly tantamounts to unfair trade practice, as claimed by the complainants. We have also considered the pleas and points raised on behalf of the Ops. But, unfortunately, those pleas are not at all accepted by this Commission, nor is there any scope to accept the case of the Ops to the effect that the Ops under compelling circumstances had to modify the building plan and the price of the flats got increased due to surrounding circumstances and price hike.
The plea raised by the Ops by filing the Misc. Application bearing No. MA-230/2013 thereby contending that the provisions of the Consumer Protection Act is not applicable to the present litigation or that the provisions of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 is very much applicable and that the complainants ought to have filed the case under the provisions of that Act also does not hold much water, inasmuch as, it is a settled principle that in a case of present nature, i.e. promoting, construction, selling and purchasing of a flat, the provisions of the Consumer Protection Act is very much applicable and considering the Misc. Application in this aspect of the case we also find that there is no merit in the present Misc. Application, which is liable to be dismissed.
Having considered the present complaint case in the light of above discussions we find merit in the present petition of complaint, which, in our opinion, should be allowed. Moreover, from the analysis of the materials on record and also from our discussions, as made above, it has also become evident that the Ops have willfully violated the restrain order passed by this Commission in the form of status quo in respect of the scheduled property, for which some exemplary pecuniary cost should be imposed upon the Ops to be deposited with the SCWF, West Bengal.
In this regard, the Ld. Advocate for the OP has taken a plea that under the compelling and unavoidable circumstances they had to modify the plan of the project. But in doing so, the existence of the Flat Nos. 15C and 15CU, meant for the complainants, have become non-existent. In this regard, the Ops could have sought for modification of the order of injunction. But on perusal of the papers on record we find that no such prayer was made. Keeping in mind that by passing the order dt. 31.03.2009 this Commission has clearly restrained the Ops from allotting, transferring and/or alienating the scheduled Flat Nos. 15C and 15 CU meant for the complainants, we are of the clear view that this willful act on the part of the Ops indicates intentional disobedience of this Commissions restrain order imposed upon the Ops. In our opinion, such willful disobedience at the instance of the Ops should be seriously dealt with.
For the above purpose we are of the considered view that as a measure of punitive damages, the Ops be directed to pay Rs. 20,00,000/- (Rupees twenty lakhs only) to the complainants and to deposit Rs. 5,00,000/- (Rupees five lakhs only) with the S.C.W.F., West Bengal, inasmuch as, the Ops resorted to unfair trade practice, deceitful means and the order of injunction dt. 31.3.09 was willfully violated. So far as it relates to payment of compensation to the complainants, we think having regard to the mental agony and harassment the complainants are entitled to the compensation to the tune of Rs. 20,00,000/- (Rupees twenty lakhs only) as prayed for, and the Ops are bound to pay the same. By way of litigation cost, we award a sum of Rs. 20,000/- (Rupees twenty thousand only) in favour of the complainants. The complainants are entitled to get refund of the sum of Rs. 1,00,000/- (Rupees one lakh only), which they had already advanced to the Ops.
All the issues are accordingly disposed of in favour of the complainants.
Hence, it is ORDERED that the petition of complaint stands allowed on contest. The Ops are jointly and severally directed to pay compensation of Rs. 20,00,000/- (Rupees twenty lakhs only), litigation cost of Rs. 20,000/- (Rupees twenty thousand only) and to refund the sum of Rs. 1,00,000/- (Rupees one lakh only) to the complainants within 45 days from the date of this order, failing which the interest @ 9% per annum shall accrue on the aforesaid amounts till realization in full.
As a measure of punitive damages, the Ops are further directed to pay Rs. 20,00,000/- (Rupees twenty lakhs only) to the complainants and deposit Rs. 5,00,000/- (Rupees five lakhs only) with the S.C.W.F., West Bengal, through the Registrar of this Commission, within 45 days from the date of this order, failing which interest @ 9% per annum shall accrue on the aforesaid amounts till realization in full.
MEMBER MEMBER PRESIDENT