State Consumer Disputes Redressal Commission
Sri Kalpanath Ghosh vs Sri Sai Construction on 5 February, 2020
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/566/2017 ( Date of Filing : 28 Jul 2017 ) 1. Sri Kalpanath Ghosh S/o Lt. Kshetra Mohan Ghosh, 7A, Nabalia Para Road, P.S. - Haridevpur, Kolkata - 700 008. ...........Complainant(s) Versus 1. Sri Sai Construction Regd. office at 4, Nabalia Para Road, P.S. - Haridevpur, Kolkata - 700 008 rep. by its sole prop., Sri Swapan Kr. Ghosh. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Mr. Subrata Kumar Chowdhury, Mr. Arun Kumar Mahapatra, Advocate For the Opp. Party: Mrs. Suchitra Sur, Advocate Dated : 05 Feb 2020 Final Order / Judgement PER: HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint under Section 17 (inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the behest of a landowner against the developer/builder on the allegation of deficiency of services in a dispute of housing construction.
Succinctly put, complainants case is that being owner of a piece of land measuring about 4 cottahs 9 chittaks together with structure standing thereon lying and situated at premises No. 266, Nabalia Para Road, P.S.- Haridevpur, Kolkata- 700008, Dist- South 24 Parganas within the local limits of Ward No. 123 of Kolkata Municipal Corporation(KMC) had entered into an agreement with the Opposite Party, a proprietorship firm represented by its sole proprietor Sri Swapan Kumar Ghosh on 04.08.2014 for development of the said land by raising construction of a multi-storied building over the same after demolition of the existing structure. In pursuance of the said development agreement, the complainant has also executed a registered Power of Attorney on 04.08.2014 in favour of OP to do such acts and deeds and things for such development work upon the premises. On the basis of agreement for development and Power of Attorney conferred upon him, the OP has obtained sanctioned building plan from the KMC. As per terms of the agreement, the complainant is entitled to get the entire second floor and one car parking space in the ground floor in finished and complete condition and also non-refundable amount of Rs. 20,00,000/-. The complainant has stated that the OP has completed the construction of building and handed over the possession of the flat only but failed and neglected to handover the possession of the car parking space to him. The complainant has alleged that after taking possession of the flat, he found that the building has not yet been completed and there are several defects in construction of the same, viz.- (a) lift of the building has not yet been installed; (b) the floor marble of the flat is of lower quality and cracked; (c) the wall of the rooms of the flat allocated to him has been damaged. The Complainant has also alleged that the Completion Certificate has not yet been handed over to him and out of non-refundable amount of Rs. 20,00,000/-, the OP has paid only Rs. 10,00,000/- and an amount of Rs. 10,00,000/- is still due and payable by the OP. In this regard, all the requests and persuasions including correspondences went in vain. Hence, the complainant approached this commission with prayer for following reliefs, viz.- (a) to direct the OP to pay a sum of Rs. 10,00,000/- together with interest accrued with thereon; (b) to direct the OP to handover the possession of car parking space on the ground floor as per terms of the agreement; (c) to direct the OP to install the lift of the building within specified period; (d) to direct the OP to handover and/or deliver the Completion Certificate and possession letter to the complainant in respect of building; (e) to direct the OP to complete the unfinished work of the building within stipulated period failing which complainant be given liberty to complete the unfinished and/or damaged work of the owner's allocation at the costs of OP with direction to OP to pay the sum of Rs. 2,00,000/-; (f) to direct the OP to pay Rs. 10,00,000/- as compensation for harassment and mental agony; (g) costs of the proceeding etc. The Opposite Party by filing a written version has stated that in terms of the development agreement dated 04.08.2014 and in compliance with the sanctioned plan obtained from the Kolkata Municipal Corporation, he completed the construction and handed over the owners allocation in respect of entire second floor consisting of two flats along with one car parking space in the month of September, 2016 and since then the complainant with his family members have been in possession of the said two flats and car parking space. The OP has also stated that he offered the balance amount of Rs. 10,00,000/- by a cheque dated 28.04.2017 but the complainant refused to accept the same. The OP has further stated that he is ready to pay the balance amount and as there is no deficiency in services on the part of him, the complaint should be dismissed.
Both the parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. At the time of final hearing the complainant has filed a brief notes of argument. Though OP was also represented through the Ld. Advocate, yet in accordance with Rule 13 (2) of the Consumer Protection Regulations, 2005 no BNA has been filed.
The pleadings on the parties and the evidence on record make it quite clear that the complainant is the absolute owner of a piece and parcel of land measuring about 4 cottahs 9 chittaks together with structure standing thereon lying and situated at premises No. 266, Nabalia Para Road, P.S.- Haridevpur, Kolkata- 700008, Dist- South 24 Parganas within the local limits of Ward No. 123 of Kolkata Municipal Corporation(KMC). In order to develop the said property, complainant had entered into a registered development agreement with the OP on 04.08.2014 incorporating certain terms and conditions stipulated therein. The evidence on record also speaks that on 04.08.2014 the complainant had also executed a registered Power of Attorney in favour of the OP authorising him to do such acts, deeds and things which are necessary for such development work in the said premises. The evidence on record further goes to show that on the basis of agreement for development and Power of Attorney dated 04.08.2014, OP obtained a sanctioned building plan from the KMC for raising construction of a G+4 storied building over the said premises.
Admittedly, after completion of construction of the building, OP has handed over the entire second floor of owners allocation to the complainant i.e. landowner. However, the dispute cropped up relating to delivery of possession of car parking space to the complainant. At the time of final hearing, Ld. Advocate for the OP has contended that the OP has already handed over the car parking space and the relative of the complainant is enjoying the same. However, there is no document whatsoever to show that OP has handed over in possession letter relating to the car parking space. On behalf of OP, a photograph showing keeping a vehicle bearing registration No. WB-02AF/8178 in the ground floor does not necessarily mean that the said car is permanently staying there. In all fairness, the developer/owner should have given a letter of possession with regard to the said car parking space to mitigate the dispute.
The complainant has alleged that lift has not yet been installed to which the OP denied. However, the OP has not produce any document to show that they have already installed the lift in the building and obtained license from the competent authority for running and maintenance of the lift. Therefore, when best evidence has been withdrawn, on the basis of mere assertion, it would be quite difficult to hold that the lift has been installed in the building in question.
We must not be obsessed with the fact that the parties are joint by the terms of the agreement. A person who signs a document contain certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect. 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 :
"It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F.Nariman, Ld. Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M.N.Krishanmani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon it own facts. 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 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"
As per development agreement dated 04.08.2014, the OP/developer was under obligation to complete the construction of the building positively within 24 months from the date of execution of the agreement and shall handover the owners allocation. Evidently, the OP/developer could not keep their promise in delivering possession within August, 2016. Moreover, the OP/developer could not satisfy by adducing evidence that he has already installed the lift and provided car parking space in the ground floor to the complainant/landowner.
The OP, however, has agreed to make payment of balance amount of Rs.10,00,000/- to the complainant. In this regard, the OP has stated that he offered the balance amount of Rs. 10,00,000/- to the complainant by way of a cheque dated 28.04.2017 but the said cheque was refused by the complainant. The OP/developer, in all fairness, should have paid the amount within committed date of delivery of possession i.e. within August, 2016 and when the amount of Rs. 10,00,000/- was offered in the month of April, 2017, certainly a person may refuse to accept the same because his claim of interest/compensation would be defeated in case of acceptance of such cheque. In any case, the complainant is entitled to Rs. 10,00,000/- along with interest over the said amount from the committed date of possession i.e. from 01.09.2016.
So far as the allegation of the complainant with regard to the defect in construction as spell out in paragraph 8 to the petition of complaint is concerned, it would appear that the complainant has made the allegation that the floor marble of the flat allocated to him are lower quality and the walls of the rooms of the flat allocated to the complainant have damaged but in order to prove the same the complainant did not file any application for appointment of an Engineer Commissioner to ascertain the same. In all fairness, the complainant should have appointed an Engineer Commissioner to prove the allegations levelled by him. Therefore, when best evidence has been withheld, this commission has hardly any scope to come to a conclusion to that there was deficiency of services with regard to construction of the building.
Needless to say, it is bounden duty on the part of the developer to obtain completion certificate from the competent authority and unless and until the completion certificate is obtained, the liability of the developer will not be withered away.
On evaluation of materials on record and having heard the Ld. Advocate for the respective parties, we find that the complainant claiming himself a landowner in accordance with the observations of the Hon'ble Supreme Court reported in (2008) 10 SCC 345 (Faqir Chand Gulati -vs- Uppal Agencies Pvt. Ltd. and Anr) hired the services of OP for construction of a G+4 storied building over the land belonged to him in exchange of the costs to be incurred by the developer but the OP/developer was found deficient in rendering services in providing the owners allocation within the stipulated period and to make payments of Rs. 10,00,000/- as per terms of the agreement, in providing the possession of the car parking space and installation of lift and further obtaining Completion Certificate from the competent authority and thereby the OP is found deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
In that perspective, the complainant being landowner is entitled to some reliefs. In our view, a direction upon the Opposite Party to handover the possession letter of demarcated portion of the car parking space to the complainant within 60 days from the date of order, to install lift after obtaining licence, to obtain Completion Certificate from the KMC and to handover an authenticate copy of the complainant, to pay a sum of Rs. 10,00,000/- together with simple interest thereon @ 8% p.a. from the committed date i.e. from 01.09.2016 till the date of payment will meet the ends of justice. So far as quantum of compensation is concerned, we think, considering the loss suffered by the complainant, a compensation of Rs. 50,000/- in the facts and circumstances will sub-serve the object of justice. Under compelling circumstances the complainant has to approach this commission for which he is entitled to litigation costs which we quantify at Rs. 20,000/-.
In view of the above discussions, we disposed of the complaint on contest with the following directions:
(i) The Opposite Party is directed to handover the possession of demarcated car parking space to the complainant with a letter of possession to that effect within 60 days from the date as per terms of the agreement;
(ii) The Opposite Party is directed to install a lift as per terms of the agreement within 60 days from date and to handover the an authenticate copy of licence of lift to the complainant within 60 days from date;
(iii) The Opposite Party is directed to obtain Completion Certificate from the Kolkata Municipal Corporation and to handover an authenticate copy of the same to the complainant within 90 days from date.
(iv) The Opposite Party is directed to pay Rs. 10,00,000/- to the complainant (as per agreement) together with prevalent Bank interest @ 8% p.a. from committed date i.e. 01.09.2016 till its payment;
(v) The Opposite Party is directed to pay compensation of Rs. 50,000/- in favour of the complainant within 60 days from date;
(vi)The Opposite Party is directed to pay Rs. 20,000/- to the complainant as costs of litigation;
(vii) The above payments should be paid within 60 days in terms of the above order.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER