National Consumer Disputes Redressal
Mr. Swapan Bera vs Mr. Shyamal Sengupta & Anr. on 20 February, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4114 OF 2013 (From the order dated 30.04.2008 in S.C. Case No. 165/A/2007 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata) Mr. Swapan Bera S/o Late Amulya Charan Bera 61/1A, Jubilee Park, P.S. Jadavpur, Kolkata 700 033 Dist. 24 Parganas (South) Petitioner/Complainant Versus 1. Mr. Shyamal Sengupta S/o Sri Debabrata Sengupta Partner of M/s. S.B. Enterprises 150A, Regent Colony, P.S. Jadavpur, Kolkata 700 040. Dist. 24 Parganas (South) 2. Mr. Shib Shankar Brahma S/o Mr. Santi Ranjan Brahma Partner of M/s. S.B. Enterprises 98/2, Regent Colony, P.S. Jadavpur, Kolkata 700 040 Dist. 24 Parganas (South) Respondents/ Opp. Parties (OP) BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. Prabir Basu, Advocate Mr. Sanjoy Kumar Ghosh, Advocate For the Respondents : Ex-parte PRONOUNCED ON 20th February, 2014 O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated 30.4.2008 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata 700 027 (in short, the State Commission) in S.C. Case No. 165/A/2007 Swapan Bera Vs. Shyamal Sengupta & Anr. by which, while dismissing appeal, order of District Forum dismissing complaint was upheld.
2. Brief facts of the case are that complainant/petitioners father entered into a joint-venture agreement dated 22.7.2002 with OP/respondents for construction of a multi-storeyed building on the said piece of land purchased by complainants father. OP agreed to handover 5 flats in the new building to be constructed by OP on complainants fathers land. Father of the complainant before his death gifted two flats out of the said five flats to the complainant. Complainants father died on 25.2.2006. Complainant alleged in the complaint that floor of the two flats became discoloured and due to leakage of pipeline and fittings of bath-room walls were damaged. Cracks developed in the ceilings. It was further alleged that certain works were also unfinished as per details given in the complaint. Alleging deficiency on the part of OP, complainant filed complaint and claimed Rs.3,00,000/- for repairs of two flats. OP contested complaint and submitted that father of the complainant was fully satisfied with the standard of construction and material used for construction and objections have been raised after 1 years from the delivery of possession only for harassing and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint. Appeal filed by the complainant was also dismissed on the ground that complainant does not fall within the purview of consumer under the C.P. Act.
3. None appeared for the respondents even after service and they were proceeded ex-parte.
4. Learned Counsel for the petitioner submitted that complainant falls within the purview of consumer as held by Apex Court, but learned State Commission has committed error in dismissing appeal on this ground; hence, revision petition be allowed and matter may be remanded back.
5. Learned State Commission while dismissing appeal observed as under in paragraph 6:
6. xxx It is henceforth evident that the project of construction of building was undertaken for commercial purpose. The present complaint and for that matter the Appeal is not a consumer dispute. In this context we are inclined to refer to the decision in 2006 CTJ 42 (CP) (NCDRC) wherein the Honble National Commission had clearly decided that a transaction relating to the property by the owner of a land with another person for the purpose of commercial exploit shall not be the subject matter of dispute before the Consumer Forum. The said decision was again followed in 2008 CTJ 264 (CP) (NCDRC).
The Honble National Commission observed here that .before getting into the purview of Section 3 of the Consumer Protection Act, 1986 one has to qualify himself to fall within the definition of the Consumer as defined in the Consumer Protection Act, 1986. When we go through the agreement, it is clearly stated in para 1 of the Agreement that it was the respondent who was to build four floors on the stilt at his own cost. In view of this, we are of the view that in no way, the Appellant/Complainant could be said to have hired the services of the respondent developer/builder, as per definition of Consumer laid down under Section 2(1)(d) of the CPA. The Appellant had not hired the services of the Respondent for construction of a building in the ordinary sense. In fact the arrangement was sharing the number of flats constructed on the said land.
whereas Honble Apex Court in 2008 (3) CPR 76 (SC) Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. & Anr. held in paragraph 19 as under:
19. What then is the nature of the agreement between the appellant and the first respondent?
Appellant is the owner of the land. He wants a new house, but is not able to construct a new house for himself either on account of paucity of funds or lack of expertise or resources. He, therefore, enters into an agreement with the builder. He asks the builder to construct a house and give it to him. He says that as he does not have the money to pay for the construction and will therefore permit the builder to construct and own additional floor/s as consideration. He also agrees to transfer an undivided share in the land corresponding to the additional floor/s which falls to the share of the builder. As a result, instead of being the full owner of the land with an old building, he becomes a co-owner of the land with a one-third share in the land and absolute owner of the ground floor of the newly constructed building and agrees that the builder will become the owner of the upper floors with corresponding two-third share in the land. As the cost of the undivided two-third share in the land which the land owner agrees to transfer to the builder, is more than the cost of construction of the ground floor by the builder for the landowner, it is also mutually agreed that the builder will pay the landowner an additional cash consideration of Rs.8 lakhs. The basic underlying purpose of the agreement is the construction of a house or an apartment (ground floor) in accordance with the specifications, by the builder for the owner, the consideration for such construction being the transfer of undivided share in land to the builder and grant of permission to the builder to construct two floors. Such agreement whether called as a `collaboration agreement' or a `joint-venture agreement', is not however a `joint-venture'. There is a contract for construction of an apartment or house for the appellant, in accordance with the specifications and in terms of the contract. There is a consideration for such construction, flowing from the landowner to the builder (in the form of sale of an undivided share in the land and permission to construct and own the upper floors). To adjust the value of the extent of land to be transferred, there is also payment of cash consideration by the builder. But the important aspect is the availment of services of the builder by the land-owner for a house construction (construction of owner's share of the building) for a consideration. To that extent, the land-owner is a consumer, the builder is a service-provider and if there is deficiency in service in regard to construction, the dispute raised by the land owner will be a consumer dispute. We may mention that it makes no difference for this purpose whether the collaboration agreement is for construction and delivery of one apartment or one floor to the owner or whether it is for construction and delivery of multiple apartments or more than one floor to the owner. The principle would be the same and the contract will be considered as one for house construction for consideration. The deciding factor is not the number of apartments deliverable to the land owner, but whether the agreement is in the nature of a joint-venture or whether the agreement is basically for construction of certain area for the land-owner.
Thus, it becomes clear that Honble Apex Court has held that availment of the services of the builder for a house construction falls within the purview of C.P. Act and learned State Commission has committed error in dismissing appeal on this ground. In such circumstances, impugned judgment is liable to be set aside and matter is to be remanded back to learned State Commission to decide it afresh on merits.
6. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 30.4.2008 passed by learned State Commission in S.C. Case No. 165/A/2007 Swapan Bera Vs. Shyamal Sengupta & Anr. is set aside and matter is remanded back to learned State Commission to decide it afresh on merits after giving an opportunity of being heard to the parties.
7. Parties are directed to appear before the State Commission on 2.4.2014 Sd/-
( K.S. CHAUDHARI, J) PRESIDING MEMBER ..Sd/-
( DR. B.C. GUPTA ) MEMBER k