State Consumer Disputes Redressal Commission
Shri Asish Kr. Neogi vs Shri Shyam Sundar Khandelwal on 4 July, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/318/2016 ( Date of Filing : 19 Jul 2016 ) 1. Shri Asish Kr. Neogi S/o Lt. Sushil Chandra Neogy & Surama Neogy, Kanakshali, Battala, Chinsurah, P.S. Chinsurah, Dist. Hooghly, Pin - 712 105. 2. Smt. Dipika Ghosh W/o Sri Amit Kr. Ghosh, 79/1, Adyanath Saha Road, P.O. Patipukur, P.S. Lake Town, Kolkata - 700 048. 3. Smt. Radha Ghosh W/o Lt. Subrata Ghosh, Flat no.H-1, 2nd Floor, 526, G.T. Road, P.O. & P.S. - Sreerampore, Dist. Hooghly, Pin - 712 201. 4. Sri Sanjoy Ghosh S/o Sri Chandra Sekhar Ghosh & Smt. Nilima Ghosh, 68/1, K.K. Roy Chowdhury Road, P.S. - Thakurpukur, P.O. Barisha, Kolkata -700 008. 5. Sri Subir Samanta S/o Radha Gobinda Samanta & Smt. Protima Samanta, 1, Hara Kumar Tagore Square, P.S. Taltala, Kolkata-700 014. 6. Smt. Soma Paul W/o Sri Dipak Kr. Paul & D/o Smt. Protima Samanta, 38/1B, Gopal Nagar Road, P.O. & P.S. - Alipore, Kolkata-700 027. 7. Smt. Jayati Roy W/o Sri Swapan Roy, Amritalay, 2, Khaluibill, P.S. Bardhaman, Pin -713 101. 8. Smt. Saswati Ghosh W/o Sri Ujjwal Ghosh, 33/2, Saradamoni Sarani, Bose Para, Kolkata -700 003. ...........Complainant(s) Versus 1. Shri Shyam Sundar Khandelwal S/o Lt. Chuni Lal Khandelwal, 40, Dharma Das Kundu Lane, P.S. Shibpur, Dist. Howrah, Pin - 711 102. 2. Sri Saurabh Khandelwal S/o Sri Shyam Sundar Khandelwal, 40, Dharma Das Kundu Lane, P.S. Shibpur, Dist. Howrah, Pin- 711 102. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Dipak Kr. Paul, Advocate For the Opp. Party: Mr. Arun Kr. Chattopadhyay., Advocate Dated : 04 Jul 2018 Final Order / Judgement The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of landowners against the developers on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
Succinctly put, Complainants' case is that on 03.08.2012 the landowners namely - Smt. Surama Neogi, Smt. Nilima Ghosh and Smt. Pratima Samanta being landowners of a piece of land measuring about 3 cottahs 8 chittaks and 1 sq. ft. more or less with an old two-storied building standing thereon lying and situated at Holding No.40/3,Dharmadas Kundu Lane, P.S.- Shibpur, Dist- Howrah within the local limits of Ward No.34 of Howrah Municipal Corporation had entered into a development agreement with the Opposite Parties for raising a construction of a building thereon. The landowners have also executed one registered General Power of Attorney to that effect on 03.08.2012. The complainants have stated that they have handed over possession of the building of the entire 1st floor to the opposite parties and the opposite parties have started running of their office from the 1st floor of their building. It was stipulated that the project will be completed within 18 months from the date of agreement. The complainants have categorically stated that the conduct of the opposite parties indicate that they are no more interested to perform their part of obligations in terms of the agreement for which the then owners cancelled and repudiated the agreement and withdrew the General Power of Attorney and demanded return of possession of premises. On 03.11.2014 the then owners served a legal notice upon the OPs and call upon the developers to forthwith deliver up the possession of the premises together with occupation charges payable at Rs.5,000/- per diem from the date of execution of the said agreement including Rs.50,00,000/- as damages. On 17.02.2015 Surama Neogi, one of the then owners expired which was communicated to OPs by legal notice dated 25.03.2015. The complainants have also stated that the OPs were aware about the registered Deed of Gift executed by Smt. Nilima Ghosh, one of the then owners in favour of her son Sri Sanjoy Ghosh (OP No.4) and also about the Deed of Gift executed by Smt. Pratima Samanta, one of the owners in favour of her only son Sri Subir Samanta and only daughter Smt. Soma Pal (OP Nos. 5 & 6) respectively. The complainants have stated that despite legal notice and request, the opposite parties have not handed over the vacant possession of the premises in question. Hence, the complaint with prayer for following reliefs, viz. (i) a direction upon the OPs to deliver peaceful and vacant possession of Premises No.40/3, Dharmadas Kundu Lane, P.S.- Shibpur, Dist- Howrah; (ii) compensation of Rs.20,00,000/- for harassment and wilful negligence; (iii) Rs.70,00,000/- for damages of house property; (iv) Rs.1,00,000/- as litigation cost.
The Opposite Party Nos. 1 & 2 i.e. father and son/developer by filing a joint written version have stated that inspite of demand on several occasions, the complainants did not handover the relevant original Deed, papers and documents to them. However, in the month of October, 2012 they have made soil testing and paying corporation tax and going on paying electricity bill from their own purse. The opposite parties have stated that they are still ready and willing to do the work within the stipulated period from the date of receiving original papers.
In support of their respective cases, 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 of the case, both the parties have tendered brief notes of argument.
Undisputedly, Smt. Surama Neogi, Smt. Nilima Ghosh and Smt. Pratima Samanta were the owners of a piece of land measuring about 3 cottahs 8 chittaks and 1 sq. ft. with an old two-storied pucca building standing thereon at Holding No.40/3,Dharmadas Kundu Lane, P.S.- Shibpur, Dist- Howrah within the local limits of Ward No.34 of Howrah Municipal Corporation. On 03.08.2012 the landowners had entered into an agreement with the opposite parties for raising construction of a multi-storied building thereon after demolishing the existing construction. As per terms of the Agreement, the developer agreed to give owners 50% of G+3 or more proposed new building. As per recital of Deed of Partition, Surama Neogi, Nilima Ghosh and Pratima Samanta were entitled to 25%, 25% and 50% respectively from the owners' allocation and the remaining 50% shall be the developer's allocation.
The Clause-3 of Development Agreement provides -
"3) That the owners here to shall handover all the original title Deed and all the relevant papers and the documents to the developer above named at the time of execution of this Agreement. The said documents and papers in respect of the said property should be cleared from all encumbrances, charges, dues, Court cases, liens, litigation whatsoever. After completion of the building, the developer shall return those original papers to the owners above named".
In Clause-5 of the Agreement, it was stipulated that the developers shall complete the proposed multi-storied building at their own costs within 18 months from the date of sanction of building plan/as well as the day of delivery of vacant possession. However, in Clause-30 of the Agreement, it was agreed that if the developer want further time over 18 months that depend upon mutual discussion with the owners.
Needless to say, the parties are bound by the terms of the agreement. Both the parties have signed the agreement with open eyes evaluating its pros and cons and therefore, nothing can be added or detracted from the terms and conditions of the contract. Therefore, the agreement between the parties towers above the rest. In AIR 1996 SC 2508 (Bharti Knitting Co. - Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.) the Hon'ble Supreme Court has observed thus -
"In an appropriate case where there is acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court establish 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".
The parties ate at variance with regard to handing over all the papers and documents relating to the property. It is articulated on behalf of landowners that all original title Deed, papers and documents were received by OP No.1by putting his signature as token of acknowledgement of original documents. The fact remains that after entering into the Development Agreement, the developers have only done soil test of the land in October, 2012 and did nothing excepting payment of taxes to Howrah Municipal Corporation and paying electricity bills to CESC Ltd. Only on 11.01.2017 on the date of filing written version, the opposite parties for the first time disclosed that the original title deeds, papers and documents were not handed over to the by the landowners. In this regard, it would be pertinent to record that an application being MA/414/2014 was filed by the complainants in order to produce document regarding receiving the documents by OP No.1 on 14.08.2012. After comparing the same, it was returned to the Ld. Advocate for the complainants. As per terms of the Agreement, the developers were under obligation to complete the construction of building within 18 months but there is not a single scrap of paper to establish that the developers had ever made any communications to the owners that due to non-delivery of original documents and papers, it is impossible for them to proceed with the construction. Therefore, an adverse inference should be drawn against the OPs.
At the time of hearing, Ld. Advocate for the developer has drawn my attention to Clause-14 of registered General Power of Attorney dated 03.08.2012 which reproduces below -
"14) Be it noted that this Power-of-Attorney is being granted in favour of the said Attorney without any consideration and no interest of right of the Attorney is created on the property which is subject matter of this Power of Attorney and that further the said Attorney shall not hereby obtained or have power to make construction or development work of the said property and this power is always revocable in nature".
Referring to the above, Ld. Advocate for the OPs has submitted that the developer could not proceed to follow up the terms and conditions as per Development Agreement dated 03.08.2012.
The OP Nos. 1 & 2 have accepted the Power of Attorney after putting their signatures knowing the precisely legal effect of it and as such there is hardly any scope to raise hue and cry at this belated stage. The OP Nos. 1 & 2 had never raised any quarrel as to terms and conditions of the Agreement and therefore, the contents of the Agreement or the Power of Attorney must have binding effect upon them. In a decision reported in (2008) 10 SCC 345 [Faqir Chand Gulati - Vs. - Uppal Agencies Pvt. Ltd. & Anr.] the Hon'ble Supreme Court in Paragrah-23 has observed thus -
" We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a Civil Court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the Civil Court or he can approach the Forum under Consumer Protection Act, for relief as consumer against the builder and as a service provider".
Ld. Advocate for OP Nos. 1 & 2 has submitted that the landowners have not come with clean hands and due to non-delivery of title Deed and another documents, the developers could not make mutation of name in respect of the suit holding and until the mutation of names done the building plan cannot be sanctioned from the appropriate authority meaning thereby as per terms of the agreement, no progress in the construction has been made at all. On query, Ld. Advocate for OP Nos. 1 & 2 has candidly admitted that for redressal of their grievances, the OPs have not approached in any competent Civil Court in accordance with the dictum of Hon'ble Supreme Court in the case of Faqir Chand Gulati (supra).
Admittedly, the OPs are in possession of at least in a portion of 1st floor where they are running their office for long six years without any purpose. Certainly, when the OPs are holding the possession of the subject property without obtaining the necessary sanctioned plan and did not make any effort to make break through and even they did not communicate any letter to the landowners claiming the documents required by them for the purpose of mutating the names of actual owners of the holding for the purpose of obtaining of building sanctioned plan, there cannot be any doubt that the developers were deficient in rendering services to the landowners. What the OP Nos. 1 & 2 will do after remaining there for a prolonged period without having any purpose and the same indicates that the developers with some malafide intention have been in possession of 1st floor of the old structure standing over the property.
I am not unmindful to the decision reported in AIR 1994 SC 853 [S.P. Chengalvaraya Naidu (dead) by LRs - Vs. - Jagannath (dead) by LRs & Ors.] where it has been held by the Hon'ble Apex Court that a litigant, who approaches the Court is bound to produce all the documents executed by him which are relevant to the litigation and if he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party and may be thrown out at any stage of litigation. The said decision has no manner of application in our case rather in view of decision of Hon'ble Apex Court in the case of Bharati Knitting Mills (supra) the OPs were under obligation to fulfil their part of obligations in a written agreement. However, the OPs have miserably failed to keep their promise as per agreement and unnecessarily is holding possession of others property for long six years without any effort to make break through as per terms of agreement.
Considering the materials on record and having heard the Ld. Advocates appearing for the respective parties, I have no hesitation to hold that the landowners of a property being 'consumer' hired the services of opposite parties as per Agreement for Development of land and/or construction of building with a ratio of 50:50 share within a specific time but the developer has totally failed to fulfil their promise within long six years which should have been done within 18 months and thereby deficient in rendering services towards the landowners within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Accordingly, the complainants are entitled to some reliefs. Taking into consideration the facts and circumstances of the case, in my view, an order directing the Opposite Parties to deliver peaceful and vacant possession to the landowners within 30 days from date will meet the ends of justice. The acts and conducts of the OPs deprived the landowners to enjoy their property for a long six years and therefore, the complainants are entitled to compensation which I assess at Rs.1,00,000/-. As the situation compelled the landowners to lodge complaint, they are entitled to litigation cost which I quantify at Rs.10,000/-.
With the above discussion, the complaint is disposed of with the following directions -
The Opposite Party Nos. 1 & 2 are directed to deliver peaceful and vacant possession of Holding No.40/3, Dharmadas Kundu Lane, P.S.- Shibpur, Dist- Howrah in favour of the complainants within 30 days from date;
The Opposite Party Nos. 1 & 2 are directed to pay compensation of Rs.1,00,000/- for harassment and mental agony of the complainants;
The Opposite Party Nos. 1 & 2 are directed to pay Rs.10,000/- to the complainants as costs of litigation.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER