State Consumer Disputes Redressal Commission
Sri Pranabesh Basu Roy vs M/S. Unneta on 14 August, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/233/2015 ( Date of Filing : 26 Jun 2015 ) 1. Sri Pranabesh Basu Roy S/o Late Paresh Chandra Basu Roy, 8/28, Sahid Nagar, P.O. - Haltu, P.S. - Kasba, Kolkata -700 078. ...........Complainant(s) Versus 1. M/s. Unneta A/82, Rabindra Pally, P.O. - Baghajatin, P.S. Jadavpur, Kolkata - 700 086, represented by its Prop., Sri Tapas Howlader. 2. Smt. Namita Basu Roy W/o Lt. Paresh Chandra Basu Roy, 14C, Eastern Park,3rd Road (Near Kalikapur Hospital Road) P.S. Kasba, Kolkata - 700 099. 3. Smt. Sumita Chakraborty W/o Sri Malay Chakraborty & D/o Lt. Paresh Chandra Basu Roy, 14C,Eastern Park,3rd Road (Near Kalikapur Hospital Road) P.S. Kasba, Kolkata - 700 099. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Barun Prasad Mr. Subrata Mondal Mr. Sovanlal Bera , Advocate For the Opp. Party: Ms. Tanusree Dhar, Mr. Udayan Roy, Advocate Dated : 14 Aug 2018 Final Order / Judgement The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of one of the co-owners against the developer (Opposite Party No.1) impleading the other two co-owners (Opposite Party Nos. 2 & 3) on the allegation of deficiency in services on the part of developer in a consumer dispute of housing construction.
Succinctly put, complainant's case is that he along with pro-OP Nos. 2 & 3 being owners by inheritance of a piece of land measuring about 1 cottah 13 chittaks and 35 sq. ft. more or less together with standing structure lying and situated at Premises No.8/28, Sahid Nagar, P.S.- Kasba, Kolkata - 700078, Dist- South 24 Parganas within the local limits of Ward No.105 of Kolkata Municipal Corporation (KMC) had entered into a Development Agreement with the OP No.1/developer on 25.06.2010 for construction of a multi-storied building. As per Agreement, the owner's allocation has been described and according to the said agreement, the complainant will get 50% sanctioned commercial area of the ground floor and the 1st floor flat with shifting charges of Rs.2,500/- per month until completion of commercial area of ground floor and 1st floor and Rs.2,00,000/- by cheque/cash. As per terms of the agreement, the OP No.1 was under obligation to complete the building within 24 months from the date of sanction of building plan. Subsequently, one agreement has been executed between the complainant and OP No.1 on 15.06.2012 whereby the necessary changes regarding allocation has been made to the effect that the complainant has agreed to hand over 50% on the 1st floor or area about 350 sq. ft. which will be hired and 50% of sanctioned commercial area on the ground floor out of which 50 sq. ft. will be adjustable with the refundable amount from the OP No.1. Subsequently, another supplementary agreement has been executed between the complainant and OP No.1 on 20.05.2014 whereby changes of allocation of complainant has been described as hereunder - the First party agreed to handover 50% on the 1st floor or area about 420 sq. ft. super built up area with commercial sanction to the second party the complainant herein and it is stated that the first party is bound to complete the additional sanction in respect of the commercial portion from the KMC authority and the cost will be borne by the first party. The first party agreed to hand over entire 3rd floor containing two flats measuring more or less 715 sq. ft. and 420 sq. ft. respectively to the second party in lieu of ground floor portion in the name of complainant as per agreement dated 25.01.2010 and it is amicably settled between the parties the second party will pay a sum of Rs.3,00,000/- to the first party for the purpose of adjustable of the above portion. Since the OP did not adhere to the terms and conditions to deliver the possession as per Agreement dated 20.05.2014, the complainant has come up in this Commission with prayer for following reliefs, viz. - (a) to direct OP No.1 to deliver possession to the complainant as per supplementary agreement dated 20.05.2014; (b) to award compensation of Rs.10,00,000/- for harassment and mental agony and (c) to award litigation cost of rs.50,000/-
The OP No.1/developer by filing a written version has stated that in the original agreement dated 25.06.2010 there was no agreement between the complainant and his co-sharers and the developer regarding allotment of 3rd floor of the proposed building as there was a sanctioned plan of G+2 storied building. The OP No.1 has stated that in good faith he applied for retention/regularisation of unauthorised construction and the competent authority allowed him to retain the same on payment of retention charge of Rs.6,39,103/-. The OP No,.1 has alleged that complainant was duty bound to pay retention charges. Moreover, the said supplementary agreement dated 20.05.2014 being performing of an illegal construction work by violating the KMC Act and the Building Rules, the agreement is a void agreement and as such the complaint should be dismissed.
The Opposite Party Nos. 2 & 3 i.e. the other two owners neither have appeared nor filed written version. Therefore, the complaint was heard ex-parte against them.
Both the contesting parties have tendered evidence through affidavit. They have also given reply against the questionnaire set for the by their adversaries. At the time of final hearing on behalf of OP No.1, a brief note of argument has been filed.
Undisputedly, the complainant and Pro-OP Nos. 2 & 3 were the joint owners of a piece of land measuring about 1 cottah 13 chittaks and 35 sq. ft. more or less together with standing structure thereon lying and situated at Premises No.8/28, Sahid Nagar, P.S.- Kasba, Kolkata - 700078, Dist- South 24 Parganas within the local limits of Ward No.105 of Kolkata Municipal Corporation (KMC). On 25.06.2010 they entered into an agreement for development with OP No.1/developer for construction of a multi-storied building. As per Agreement, the owner's allocation has been described and according to the said agreement, the complainant will get 50% sanctioned commercial area of the ground floor and the 1st floor flat with shifting charges of Rs.2,500/- per month until completion of commercial area of ground floor and 1st floor and Rs.2,00,000/- by cheque/cash. In accordance with the said agreement, Pro OP No.2 was entitled to a self-contained flat measuring an area about 600 sq. ft. with shifting charges of Rs.1,500/- per month until completion of owner's allocation and Rs.3,00,000/- by cheque/cash and Pro-OP No.3 is entitled to a garage space measuring about 80 sq. ft. on the ground floor of newly constructed building and Rs.1,00,000/- by cheque/cash and the remaining sanctioned portion of the total flats are equally distributed between the complainant and OP No.1.
As per Development Agreement, the OP No.1 shall complete the construction of the building within 24 months from the date of sanctioned of the building plan. The evidence on record suggests that the developer has obtained sanctioned building plan to construct a three storied building (G+2) by the competent authority on 31.08.2012. When despite receipt of summons/notice, Pro OP Nos.2 & 3 have not appeared to controvert the statement of complainant and independently did not file any complaint against the developer, it must be presumed that Pro OP Nos. 2 & 3 are satisfied with the allotment handed over to them in terms of the agreement dated 25.06.2010.
It also appears that one agreement has been executed between the complainant and OP No.1 on 15.06.2012 whereby the necessary changes regarding allocation has been made to the effect that the complainant has agreed to hand over 50% on the 1st floor or area about 350 sq. ft. which will be hired and 50% of sanctioned commercial area on the ground floor out of which 50 sq. ft. will be adjustable with the refundable amount from the OP No.1. Subsequently, another supplementary agreement has been executed between the complainant and OP No.1 on 20.05.2014 whereby changes of allocation of complainant has been made to the extent that the developer agreed to handover 50% on the 1st floor or area about 420 sq. ft. super built up area with commercial sanction to the complainant and it is stated that the developer will complete the additional sanction in respect of the commercial portion from the KMC authority and the cost will be borne by the developer. The said agreement also indicates that the developer agreed to hand over the entire 3rd floor containing two flats measuring more or less 715 sq. ft. and 420 sq. ft. respectively to the complainant in lieu of ground floor portion in the name of complainant as per agreement dated 25.01.2010 and it is amicably settled between the parties the complainant will pay a sum of Rs.3,00,000/- to the developer for the purpose of adjustable of the above portion.
Mr Barun Prasad, Ld Advocate for the complainant has submitted that when in terms of the supplementary agreement dated 20.05.2014 the construction of 3rd floor (top floor) has been constructed and completion certificate has been obtained from the KMC on payment of retention charges of Rs.6,39,103/-, by virtue of supplementary agreement the o.p.no.1 is duty bound to provide complainant's allocation as per supplementary agreement dated 20.05.2014.
Mr Srijan Nayak, Ld. Advocate with Miss Tanusree Dhar, Ld. Advocate has contended that the construction of 3rd floor was per se is illegal because the O.P.no.1 obtained permission from the Corporation to construct a three-storied building(G+2) on the plot of land and building permit was sanctioned by KMC on 31.08.2012. Therefore , when the construction of an additional storey over and above three storied level was not permissible and a demolition proceeding u/s 400(1) of the KMC Act, 1980 was initiated, the Complainant requested the developer to regularise the same and as such when the agreement for performing an illegal construction work beyond the sanctioned limit, the terms and conditions cannot be enforced as the said agreement is a void agreement.
I have given due consideration to the submission made by the Ld. Advocates appearing for the parties. It is trite law that the parties are bound by the terms of agreement. A person who signs a document contains certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect. 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 needs to be established. In a case reported in AIR 1996 SC 2508 (Bharti Knitting Co. - vs. - DHL World Wide 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"
The materials on record indicates that the complainant and Pro O.P. Nos. 2 and 3 were the joint owners who had entered into development agreement with O.P.no.1. O.P. Nos. 2 and 3 have not come up to raise any objection as to the construction of an additional floor i.e. 3rd floor in the building in question. Therefore, when the co-owners have no objection against the allocation of Complainant on the 3rd floor of the building, the developer/O.P.1 being a party to the supplementary agreement dated 20.05.2014 has no locus standi to raise the question as to legality or validity of the agreement.
Evidently, after payment of retention charges of Rs. 6,39,103/-, the construction of the building on the 3rd floor was regularised. In a question - "whether you have obtained Completion Certificate from the appropriate authority? If yes, when you have applied for and when you got CC?" To which it was replied-"I have already obtained the Completion Certificate (C.C) from the authority concerned". Therefore, when the construction of 3rd floor has been regularised and Completion Certificate has already been obtained, it cannot be said that the terms and conditions are illegal and void. Therefore, the submission made by Ld. Advocate for O.P.No.1 does not appear to have any force.
On evaluation of materials on record, I find that the Complainant being one of the Co-owners (Consumer) hired the services of O.P.No.1/Developer on consideration and O.P.No.1 was found deficient in rendering services to the Complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the Complainant is entitled to some reliefs. Considering the facts and circumstances, in my view, a direction upon O.P.No.1 to deliver possession of the property as per supplementary agreement dated 20.05.2014 will meet the object of filing of the complaint. Besides the same, as a natural corollary, the Complainant is entitled to compensation and considering the loss suffered by the Complainant , he is entitled to compensation which I assessed at Rs.50,000/-. As the situation created by O.P.No.1 compelled the Complainant to lodge the complaint, Complainant is entitled to litigation cost which I quantify at Rs.10,000/-.
With the above discussions, the complaint is allowed on contest against Opposite Party No.1 and dismissed against Opposite Party No.2 and 3 with the following directions -
The Opposite Party No.1 is directed to deliver possession to the Complainant as per supplementary agreement dated 20,05,2014 subject to fulfilment of terms and conditions by the parties to the agreement;
Opposite Party No.1 is directed to award compensation of Rs.50,000/- in favour of the Complainant;
Opposite Party No.1 is directed to make payment of Rs.10,000/- as litigation cost in favour of Complainant;
The above payments must be made within 60 days from date in default the amount shall carry interest at the rate of 9% p.a. from date till its realisation.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER