State Consumer Disputes Redressal Commission
Dr. Ajit Pal vs M/S. Rnr Enterprise on 29 June, 2010
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. CC/08/73 DATE OF FILING: 24.12.2008 DATE OF FINAL ORDER: 29.06.2010 COMPLAINANT 1) Dr. Ajit Pal S/o Late Joydeb Pal Dept. of CSE, I.I.T. Kharagpur 721 302 WB (Souro Niloy Flat No.A-2/E and A-2/W) 2) Mrs. Alpana Pal W/o Dr. Ajit Pal Qrts, No.A-25, I.I.T Kharagpur 721 302 WB (Souro Niloy Flat No.A-2/W) 3) Dr. Mrinal Mohan Maiti S/o Late K.C. Maiti Dept. of Chemistry, I.I.T Kharagpur -721 302 WB (Souro Niloy Flat No.A-3/N) OPPOSITE PARTIES 1) M/s. R.N.R. Enterprise Represented by its proprietor/chairman Sri Sankar Sarkar and R.N.R. Development & Consultant Pvt. Ltd. Represented by its Managing Director Sri Sankar Sarkar (both Sri Sankar Sarkar are same and identical person) S/o Sri Gopal Chandra Sarkar of 109, Aghar Sarani, P.O. Rajpur Dist. South 24-Parganas, Pin 743 358 Registered Office at 9/3, Ekdalia Road, Kolkata 700 019 and Site office at Soura Niloy Housing Complex 1, Kailash Ghosh Road, Kolkata 700 008 2) Sri Sanjib Sarkar S/o Sri Sankar Sarkar Executive of R.N.R. Development & Consultant Pvt. Ltd. Having its office at Soura Niloy Housing Complex 1, Kailash Ghosh Road (near Sakher Bazar Sitala Temple, Barisha) Kolkata 700 008 3) Sri Biswanath Pal Executive of R.N.R. Development & Consultant Pvt. Ltd. Having its office at Soura Niloy Housing Complex 1, Kailash Ghosh Road (near Sakher Bazar Sitala Temple, Barisha) Kolkata 700 008 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MRS. S. MAJUMDER MEMBER : MR. S. COARI FOR THE COMPLAINANT : Mr. P. Basu, Advocate FOR THE OPPOSITE PARTIES : Mr. S.S. Banerjee, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This complaint was filed by three complainants against OP1/Developer and OPs2 & 3 who are Officers of OP1. On an allegation of deficiency in service by the OPs in respect of purchase of flats the present complaint was filed seeking relief of obtaining completion certificates and for providing amenities and facilities like tank, play ground, community hall-cum-office room, library etc. for completion of development works, for removing labour, construction materials, tools and machineries, scrap materials of the OPs from the premises and for compensation of Rs.5 lacs and cost of Rs.50,000/-.
Contentions made in the complaint, in brief, are that complainants are the owners of a plot in Phase-I of Soura Niloy Housing Complex in Kolkata which the complainants purchased from OP1. Agreement for sale of plot-cum-construction of flat had been executed in January, 2001 with each of the complainants. The OP1 is the developer and OPs 2 & 3 are its officers.
The complainants entrusted the OP1 to construct their flats as per sanctioned plan. The petitioners entered into a subsequent agreement for construction of flats with OP1 in the year 2003. In the agreement the cost of construction of flat along with car parking space and site development have been considered based on the super built up area of the respective flats. According to the agreement the flats were supposed to be completed by April, 2004 and were to be handed over to the complainants after payment of 90% of the integrated cost of construction, car parking area and site development.
Payment was made in instalments.
The remaining 10% of the integrated cost was to be paid after completion of all the site development work some time in July, 2004. OP delayed delivery of possession of the flats. The flats were made habitable some time around July, 2007 and the site development work has still not been completed. The complainants paid 90% of the integrated cost of construction of flat, car parking area and site development. In addition to the above payments complainants made additional payments for extra work, common meter, individual meter, drainage, water connection, completion certificate and registration charge in June, 2006 to the OPs. As the OPs demanded huge extra money for handing over the completed flats with completion certificates and failed to discharge obligations fully the present complaint was ultimately filed.
The OPs filed written objection to the said complaint. The complainant filed evidence on affidavit in respect of which questionnaire and replies were filed. The OPs filed their evidence on affidavit in respect of which also questionnaire and replies were filed. After the brief notes of arguments were submitted the complaint case was taken up for hearing. Heard Mr. P. Basu, the Ld. Advocate for the Complainant and Mr. S.S. Banerjee, the Ld. Advocate for the OPs.
The parties also relied on the report of the Ld. Advocate Commissioner appointed for the purpose of local inspection to find out correctness of factual allegations. Such appointment was made by order dated 11.3.2010.
While considering the merits upon the arguments of the respective parties and the records of the proceeding, I find that though initially there was some dispute as regards measurement, the measurement given in the report submitted by the Ld. Advocate Commissioner is found acceptable.
Therefore, the contentions relating to meaning and impact of the Clause in the agreement defining super built up area does not require any consideration.
As regards the objection of the OP on non-joinder of the owners of the property as OPs particularly when OP1 was described a constituted attorney, does not have any strength as the agreement clearly shows that the flat purchaser as second party entered into agreement with the developer as the first party which was described as represented by the proprietor.
The nature of the reliefs sought for shows that those were only against developers. Therefore, it cannot be held that the complaint suffered from defect of non-joinder of parties.
As regards the question of limitation in filing the complaint reliance has been placed on behalf of OPs on paragraph 23 of the complaint. But while reading the agreement in totality as it appears that the first agreement itself was also for construction of flats and the prayers in the complaint show that the cause of action was continuing one as the OPs failed to comply with the obligations under the agreement, the complaint cannot be treated as barred by limitation.
The next contention of the OPs is want of pecuniary jurisdiction of this Commission as value has been assessed in respect of properties of all the complainants. It is contented that by joining causes of action pecuniary value is not added automatically. The first order dated 12.01.09 passed in this complaint proceeding shows leave was granted to the complainants to file joint complaint. Therefore when a joint complaint is filed by several complainants the total value of the subject matter is to be taken and this can be done by adding the value of the properties of different complainants joined in the proceeding. Therefore, in my opinion there is no strength in the said objection.
The next contention of the OPs is that the agreement dated 08.01.2001 being the first agreement with each of the complainants was agreement for sale and, therefore, they stood satisfied on completion of sale of the land in favour of the complainants. On the basis of this arguments it is further contended that the subsequent agreement dated 06.12.03 is infractuous and absurd as all the facilities mentioned in the agreements including the facilities of tank, play ground, community hall are not possible on the 7 kottahs of land purchased. On perusal of the records I find that the agreement dated 08.1.2001 was not only for agreement for sale of plot but also was for construction of flats. Therefore, the basic contention of the OPs having been found to be non-existent the other contention as regards the absurdity of the second agreement is not found tenable. As regards feasibility of providing the facilities on the land purchased by the complainants, I find the OPs entered into the said agreement knowing fully well the area of the land belonging to the complainants and, therefore, when they agreed to provide several facilities the OPs are to provide for land for such purposes, the contention of the complainant on this issue is to be accepted.
The next contention of the OPs is that they have certain counter claims and, therefore, this proceeding should be dismissed and the parties are to be relegated to Civil Court.
I do not find this contention has any strength as the OPs can, if so advised, initiate any proceeding in respect of their claim against complainants and the same is not a reason on which the present proceeding can be dismissed only because no counter claim can be filed in this proceeding itself.
A further contention of the OPs that by virtue of provisions of Clause 22 of the Agreement dated 06.12.03 the complainants are required to make further payment on account of site development cost. I have perused the provisions contained in various Clauses in the said agreement. Similar provision for payment by the complainant has been made in Clause 15 also mentioning payment for construction cost. But it appears that by the said agreement the property intended to be sold is contained in Schedule-II of the agreement wherein mention has been made to the flat with identification number and of the plot, which is said to be inclusive of common area, covered car parking space together with proportionate share in the common parts and facilities and proportionate right in the common block of roof. In Schedule-VII of the agreement the common facilities of the housing complex have been mentioned in two parts - the first one is the common parts and second one is common facilities. The schedule IX of the first agreement and schedule VII of the second agreement included play ground, children park, community hall, swimming pool, internal concrete roads etc. Therefore, reading the Schedule-II and Schedule-VII together I am of the opinion that consideration for the flat covered not only the flat but also the car parking area and common parts and facilities. Therefore, this objection of the OP also is not acceptable.
The contention as regards completion certificate has been considered and it appears that when the OP/Developer had undertaken to raise the construction he is also to provide the completion certificate from the Municipal Authorities. The OP/Developer is bound to supply a completion certificate to show that construction has been duly made in accordance with the sanctioned plan. The owners of the property are only expected to extend cooperation in the matter of completing formalities, if required.
With regard to objection of the OPs against the Commissioners report, though an objection has been filed by the OPs and complainant also have filed an affidavit supporting the report, I have considered the report in its totality and the objections raised against it. With regard to the community hall the report appears to be correct as Mr. Banerjee, the Ld. Advocate for the OPs argued that the OP/Developer had intended to construct the community hall at a different location than the location shown in the sanctioned plan and this alteration is being proposed to make the residential complex a better one. Even in the written objection no assertion has been made that it was constructed. Therefore, the community hall is not yet constructed as reported by the Commissioner. In view of the agreements between the parties and obligations already undertaken by the OP/Developer, community hall has to be constructed at the location shown in the sanctioned plan.
As regards water tank the report speaks of existence of the water tank between the buildings S and U few ft. away from the entrance gate and inside the premises but surrounded by wall leaving a small passage to the tank. The OPs have not denied access of the complainants to the said water tank.
The report has also stated existence of a children park and there is no dispute relating to the same.
The Advocate Commissioner has reported that there is no play ground within the premises in question and that a play ground was shown to him outside the site in question. On behalf of OP/Developer Mr. Banerjee, the Ld. Advocate contended that the OP has purchased a play ground adjacent to the complex and, therefore, the same satisfies the need of the complex. As even in their objection the OPs have stated on affidavit that the playground shown to the Commissioner has been purchased the OPs are to include the said playground in the complex by removing the intervening wall and by encircling it by constructing wall around the said playground.
The report of the Commissioner has also mentioned internal Catcha pathway which is not only incomplete but is also destroyed at places the OPs have not denied the same even in their objection filed. The requirement of the agreement obliging the OP/Developer to provide 30 ft. wide concrete internal roads, is not satisfied.
Therefore, there is deficiency in this respect on the part of the OP/Developer.
The report of the Commission shows satisfaction as regards motor pump and reservoir.
The next contention of the OP is that price dispute cannot be a basis of a complaint which can be entertained by a Forum there being no deficiency in construction. With regard to this I find that there is no price dispute as the rate is admitted. Area of the flats was being disputed between the parties but now on the basis of the findings of the Commission recorded in his report the price can be calculated and the complainant is required to pay any amount if found due on such calculation.
As regards deficiency in construction, the findings have already been recorded and on some items deficiency has been found.
As regards the car parking space the areas have been mentioned in the agreement in respect of each flat owner and, therefore, there cannot be a dispute as attempted to be raised by the OP/Developer.
Though allegation has been made of claimants not doing their part of the obligations, but no specific item of obligation of claimant has been shown as remaining incomplete.
Therefore, in view of such findings on facts law referred to by the OP as decided in the case of D.S. Kohli-Vs-Baldev Singh Pabla reported in 2001(3) CPJ 274 does not require consideration as is not applicable in present facts..
In view of the aforesaid findings as activities of OPs amounted to deficiency in service in respect of the items mentioned hereinabove the OPs are liable to pay compensation. In the facts of the case I am of the opinion that in view of such deprivation of facilities the claimants are entitled to payment of compensation @ Rs.50,000/- for each complainant from the OP.
Therefore, the complaint is allowed on contest. The OPs are directed to bring the playground within the complex by constructing wall around the playground and removing the wall intervening the playground and the complex within three months from the date of this order. The OPs are also directed to construct the community hall within the complex at the space shown in the sanctioned plan within three months from the date of this order. The OPs are further directed to construct the 30 ft. wide internal concrete roads within the complex within three months from the date of this order. The OPs are also to pay compensation @ Rs.50,000/- to each of the complainants and Rs.30,000/- to the complainants as cost within one month from the date of this order.
(S. Majumder) (S. Coari) (Justice A. Chakrabarti) MEMBER(L) MEMBER PRESIDENT