State Consumer Disputes Redressal Commission
Smt. Devismita Roy & Anr. vs M/S. Eon Construction on 6 December, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/517/2018 ( Date of Filing : 13 Jul 2018 ) 1. Smt. Devismita Roy & Anr. D/o Lt. Tarun Kanti Das, G.D.- 366/6, Sector -III, Salt Lake City, P.S. - Bidhannagar, Kolkata 700 106. 2. Sri Debdatta Ray S/o Lt. Tarun Kanti Ray, G.D.- 366/6, Sector -III, Salt Lake City, P.S. - Bidhannagar, Kolkata 700 106. ...........Complainant(s) Versus 1. M/s. Eon Construction Rep. by its prop., Sri Amlan Kusum Das, S/o Sri Aloke Kr. Das, S.D. Chatterjee Road, P.S. - Baruipur, Kolkata - 700 144, Dist. South 24 Pgs. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER For the Complainant: Mr. Sibaji Sankar Dhar, Advocate For the Opp. Party: None appears Dated : 06 Dec 2019 Final Order / Judgement HON'BLE MR. SHYAMAL KUMAR GHOSH, MEMBER
The complainants have filed the instant case against the opposite party before the Commission and prayed for direction upon the op to hand over the owner's allocation in complete condition along with payment of Rs 11,74,000/- plus interest, to provide completion certificate, to pay Rs 1,00,000/- towards compensation, to pay Rs 50,000/- towards litigation cost etc. The brief fact of the case is that the complainant's father namely Sri Tarun Kanti Ray being the absolute owner of the bastu land along with pucca structure situated at Mouza Subuddhirpur, entered into a development agreement on 24/09/2004 and also entered into another subsequent agreement on 25/09/2004 with the op/developer wherein the developer has agreed to construct a multi storied building thereon. As per agreement between the parties, the construction work would be completed within 36 months from the date of sanction. As per assurance made by the opposite party, Tarun Kanti Ray vacated the said premises and handed over the same to the op. As per agreement, it has been settled that the op developer shall have to pay a sum of Rs 15,00,000/- and also to deliver the entire second floor of the buiLd.ing along with two shop rooms on the ground floor measuring 240 sft. to Mr Ray. It is also fact that the landlord viz Sri Tarun Kanti Ray executed and registered a Power of Attorney in favour of the opposite party and as such the op collected huge money from the intending purchasers. The op already paid (Rs. 1,16,000 + 2,10,000) - 3,26,000/- to the complainant. Till date Rs 11,74,000/- is due. During the course of whole process, Sri Tarun Kanti Ray and his wife died and as such the present complainants (son and daughter) in the above referred consumer case requested the op to pay the agreed amount as well as to deliver the possession of entire second floor as per agreement but the op did not pay any heed. Having no other alternatives, the complainants rushed to the Commission for getting proper relief as prayed for.
None appeared on behalf of Opposite Party. No written version was filed by the Op and as such the case was heard ex parte.
We have heard the Ld. Advocate for the complainants. Considered his submission and perused the materials on records.
Before explaining the other issues involved in the complaint case, we try to decide whether the instant complaint case falls within the purview of Consumer Protection Act, 1986 or not as well as whether there is any gross negligence or deficiency in service on the part of op or not in the instant case.
At first we have carefully perused the Agreement dated 24/09/2004. Sri Tarun Kanti Ray, first party being an owner of the piece and parcel of land measuring 9 ½ decimals together with structures, entered into an agreement with the op developer/Second Party. As per terms and conditions between the parties, the first party ie land owner has agreed to vacate the property mentioned earlier and the second party ie the op developer has also agreed to construct a multi storied buiLd.ing thereon. Moreover the op developer has promised to pay Rs 15,00,000/- and also to deliver the entire second floor of the newly constructed buiLd.ing along with two shop rooms on the ground floor to the landowner. The owner already received Rs 1,16,000/- from the second party op/developer. The whole facts are clearly reflected in the agreement dated 24/09/2004. As per averment advanced by the Ld. counsel for the complainants, it is fact that Sri Ray and his wife both died and as such their son and daughter being the legal heirs/complainants have filed the instant consumer case against the op developer. So as per principles laid down in Faqir Chand Gulati vs Uppal Agencies Pvt Ltd. reported in lll(2008) CPJ 48 SC and (2008) 10 SCC 345 the complainants come within the purview of the definition of the Consumer and the op developer is to be treated as Service Provider as per Consumer Protection Act, 1986.
It is the actual proposition of law that after death of Mr. Ray and his wife, all responsibilities and obligations of deceased have already been shifted upon their son and daughter (complainants in the consumer case) as their legal heirs. So the agreements dated 24/09/2004 and 25/09/2004 have a legal binding effect upon the present complainants. It is admitted that the complainants already received (Rs 1,16,000 + Rs 2,10,000) - Rs 3,26,000/- out of Rs 15,00,000/-. So it is true that Rs 11,74,000/- was still due. As per agreement, the complainants are entitled to get balance amount of Rs 11,74,000/- from the op developer (clause 4 of the agreement dated 24/09/2004) as well as the op developer is bound to deliver the entire second floor of the newly constructed buiLd.ing along with two shop rooms on the ground floor(clause 5 of the said agreement). We have also perused the letter dated 14/05/2018, wherein the complainants requested the op developer to perform his duties as per agreement. But ultimately no fruitful response came out from the end of op developer causing gross negligence and deficiency in service on the part of op developer.
Be it mentioned here that getting enough opportunities for filing written version, the op developer was negligent to file the same and for that reasons the case was heard ex-parte. So in view of above, there is no hesitation to hold that even after getting sufficient opportunities to file written version, the op/developer kept mum which goes against the op. Moreover, the petition of complaint filed by the complainants remains unchallenged due to non filing of said written version.
In Sanjoy Kr Gupta vs Kebal Kisahan Baran and others reported in 2014(3)CPR236(NC), Hon'ble National Commission held that Consumer Forum is primarily meant to provide protection to consumers and their claims cannot be defeated on technical grounds. Moreover the preamble of Consumer Protection Act, 1986 clearly speaks for providing better protection of the interest of the consumers. In fact the Consumer Protection Act 1986 is a benevolent social legislation to provide quick relief to the consumers.
In view of the decision of the Hon'ble National Commission mentioned earlier as well as on the basis of actual object of the preamble of C. P. Act, 1986, we hold that the petition of complaint has enough strong leg to stand upon due to non- compliance of the agreement dated 24/09/2004 executed between the parties from the end of op developer and therefore, we allow the petition of complaint ex parte against the op developer, direct the opposite party to deliver the owner's allocation as per agreement dated 24/09/2004 to the complainants and to pay balance amount of Rs 11,74,000/- (eleven lakh seventy four thousand only) to the complainants, to pay compensation of Rs 30,000/-(thirty thousand only), to pay litigation cost of Rs 10000/- (ten thousand only) within 90 days from the date of this order in default the awarded amount shall carry interest @ 10% pa till full realization. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER