State Consumer Disputes Redressal Commission
Sri Samir Dutta vs Smt. Mamata Das on 11 April, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/2/2016 (Arisen out of Order Dated 03/12/2015 in Case No. Complaint Case No. CC/127/2015 of District Kolkata-II(Central)) 1. Sri Samir Dutta S/o, Lt. Sisir Ranjan Dutta, Municipal Premises No. - 17/1/H/24, Ultadanga Main Road, P.S - Ultadanga, Kol - 700 067. ...........Appellant(s) Versus 1. Smt. Mamata Das D/o, Jiban Krishna Das, Municipal Premises No. - 16/1/H/48/8, Biplabi Barin Ghosh Sarani, P.S - Maniktala, Kol - 700 067. 2. Smt. Nivedita Das D/o, Jiban Krishna Das, Municipal Premises No. - 16/1/H/48/8, Biplabi Barin Ghosh Sarani, P.S - Maniktala, Kol - 700 067. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Ms. Puja Beriwal, Advocate For the Respondent: Mr. Avijit Bhuina, Advocate Mr. Avijit Bhuina, Advocate Dated : 11 Apr 2017 Final Order / Judgement
ISHAN CHANDRA DAS, HON'BLE PRESIDENT This appeal has been directed against the judgment and order dated 03.12.15 passed by Ld. District Consumer Disputes Redressal Forum, Kolkata Unit -II, in CC/127/2015 wherein the Forum concerned while disposing of the complaint case allowed the same partly on admission and partly on contest with cost of Rs. 10,000/-. The Appellant / OP was directed to hand over the room measuring 63 sft. on the ground floor of the premises to the Complainants / Respondents and to pay the amount of Rs. 1,00,000/- to them within one month from the date of the order, failing which the Appellant/ OP shall have to pay penal damages of Rs. 10,000/- in each month till delivery of possession of the said ground floor room to the Respondents and also to pay penal interest @ 800/- p.m from the date of the order till full satisfaction of Rs. 1,00,000/- with further direction to comply with the order by the Appellant within one month from the date of the order failing which penal action shall be started against the Appellant/OP u/s 25 read with section 27 of the Consumer Protection Act, 1986 coupled with further penalty and fine to be imposed on him.
Questioning the propriety of the said order the present Appeal has been preferred against the Respondents/Complainants who entered into an agreement with the Appellant herein (i.e., a Developer) on 14.08.2009 and the Appellant was entrusted with the development and construction of new residential flat at their premises at 16/1/H/48/8, Biplobi Barin Ghosh Sarani, P.S. Maniktala, Kolkata -700 067 and as per the said agreement the Appellant/Developer would have to allocate a room measuring 63 sft. on the ground floor and the cash consideration to the Complainants which have been clearly mentioned in the 3rd floor schedule of the said agreement, but the Appellant/OP failed and / or neglected to hand over the said room as well as the balance amount of Rs. 1,00,000/- . Despite the fact that the Appellant/OP was verbally requested by the Respondents on several occasions to comply the terms of agreement but their request went in vain. The Respondent / Complainant then served written demand to the Appellant/OP on 18.08.14 by registered posts but inspite of receiving such notice, the Appellant did not take any step to redress the demand of the Respondents. The Respondents / Complainants further stated that the Appellant/OP with a malafide intention neglected to hand over other room in question and to pay the balance amount as per agreement giving no alternative before the Respondents/ Complainants to take recourse of the Consumer Disputes Redressal Forum, concerned .
The Appellant/OP in his written version categorically stated that the Appellant/ OP ( herein after referred to as 'Appellant') admitted that he being a carrier of development business entered into an agreement with the Respondents / Complainants ( herein-after referred to as Respondents) entered into agreement regarding development of the land and structure thereon though in the written version he contended that it was a "business agreement between the parties". Denying the status of the Respondents as Consumer, within the meaning of Section 2(d) of the Consumer Protection Act, 1986, he also urged that in view of the said provision, the Respondents did not come under the purview of the 'Consumer' since the agreement between the parties was a commercial agreement in substance. He also alleged that the property which was the subject matter of the development agreement was a Thika land and the Respondents being Thika tenants did not have any right to transfer the property to any third party in terms of the relevant provisions of the West Bengal Thika Tenancy (Acquisition and Regulation ) Act, 2001 with amended provisions thereof but the Respondents suppressing that fact entered into such development agreement to frustrate the interest of the Appellant herein. Ld.Counsel appearing for the appellant at the very outset of his argument drew our attention to the provision of Section 5 of the W.B. Thika Tenancy ( Acquisition ad Regulation ) Act, 2001 and submitted that the property in question in respect of which the agreement for development between the parties were agreed upon was a thika property. He also pointed out with reference to the provisions of Section 5 (3) of the Act that on the date of commencement of this Act, the person occupying such land under a landlord shall occupy such land directly under the State as if the State had been the landlord in respect of that landlord if any question arises whether a person is a thika tenant or not or whether the land in question is Thiks land or not , the controller either on his own motion or upon serving any information, may, after giving the persons interested an opportunity of being heard and after examining all documents and particulars, enquire upon and decide such question. He further urged that his client entered into the agreement for development and to make transfer subsequently to the intending Purchasers for making profit was frustrated due to the fact that the owners & occupiers of the property in question in respect of which the agreement was made did not have any transferable right in favour of any third party but between the parties inter se. He also submitted that the agreement between the parties was hit by the provisions of Sec 6 of the W.B. Thika Tenancy ( Acquisition & Regulation) Act 2001 and that agreement cannot be enforced, the same being void ab initio. In this context he relied on a decision of the Hon'ble Apex Court in Fatehji and Co. and another vs- LM Nagpal & Others reported in (2015) 8 S.C.C 390 and urged applying the ratio of the principle as laid down in Fatehji and Co. ( Supra ), the complaint case should be rejected summarily, the same being hit by the provisions of the W.B. Thika Tenancy Acquisition and Regulations Act , 2001.
Ld. Forum concerned on careful consideration of the materials on record , the facts of the case, and the provision of law in this matter came to the conclusion that the complaint case was not without merit and accordingly he disposed of the same directing the Appellant to pay and deliver possession of 63 sft. room in favour of the Respondents, as pointed out earlier.
Now the point for consideration is whether Ld. Forum concerned was justified in passing the decre in favour of the Respondents .
The facts of the case is not seriously disputed by either of the parties. It is revealed from the materials on record, the judgment impugned and the Brief Notes of Argument filed on behalf of the Appellant, it appears that there was an agreement for development of plot in question and a registered agreement to that effect was executed between the parties ( Annexure A at Page 23 of the paper book ).
In the impugned judgment Ld. Forum concerned pointed out certain peculiarities in the agreement with regard to allotment of the Respondents' share in the concerned building development as per agreement between the parties and payment of a sum of Rs. 1,00,000/- to the Complainants / Respondents but ultimately came to the conclusion that the agreement between the parties was an agreement for development only in respect of which Thika controller does not have any jurisdiction over such work of development. If the property or the building is constructed in terms of development agreement, the remedy of the Appellant lies elsewhere in a different process to be opted or adopted by the parties, in due course of law but we are concerned here with the development agreement between the parties and not allowing any party to interfere with such agreement in strict sense. and nothing more. Since the Consumer Protection Act a is beneficial legislation, the Consumer under the Act whose interest is going to be frustrated, the Act will come into the aid of such bonafide Consumer and not the unfair trader who in a tricky manner made an attempt to frustrate the interest of a bonafide consumer. Ld. Forum concerned in the impugned judgment categorically discussed all the points and came to the conclusion that the Respondents herein being the Complainants of the complaint case No. 127/15 are entitled to the relief as prayed for and Ld. Forum concerned was correct in approach in deciding the Complaint case.
Ld. Counsel for the Appellant in course of argument drew our attention to the provisions of Section 2 (b) of the interest Act, 1978 and submitted that Rs. 800/- p.m cannot be the penal interest since the provision of the Act is otherwise. Taking into consideration the submissions of the Ld. Advocate for Respondent we reduce rate of such penal interest to the tune @ 8% p.a. instead of Rs. 800/- p.m. Hence, the Appeal is allowed in part and the rate of penal interest is reduced to @ 8% p.a. till entire payment is made in terms of direction given in the judgment of the trial Forum. The other part of the judgment and observations therein remain un interfered . Parties do bear their respective costs of litigation in respect of this Appeal. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER