State Consumer Disputes Redressal Commission
Arijit Bhattacharyya vs Shreyans Jain. on 31 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/14/2012 1. Arijit Bhattacharyya S/o Ajoy Kumar Bhattacharyya, 8A, Mohanlal Street, P.S. Ultadanga, Kolkata - 700 004. 2. Smt. Mita Bhattacharyya W/o Sri Arijit Bhattacharyya, 8A, Mohanlal Street, P.S. Ultadanga, Kolkata - 700 004. ...........Complainant(s) Versus 1. Shreyans Jain. Shreyans Jain, S/o Premlal Jain,"Dream Apartment", 4th Floor,1, Ganesh Chandra Avenue, P.S. Bowbazar, Kolkata-700 013. 2. Shri Suman Chatterjee, Chief Marketing Officer (CMO) "Dream Apartment", 4th Floor,1, Ganesh Chandra Avenue, P.S. Bowbazar, Kolkata-700 013. 3. Biswapita Properties Pvt. Ltd. 4th Floor,1, Ganesh Chandra Avenue, P.S. Bowbazar, Kolkata-700 013. 4. Jaimata Creations Pvt. Ltd. 4th Floor,1, Ganesh Chandra Avenue, P.S. Bowbazar, Kolkata-700 013. 5. U.S. Creation Pvt. Ltd. 4th Floor,1, Ganesh Chandra Avenue, P.S. Bowbazar, Kolkata-700 013. 6. Bajrang Creation Pvt. Ltd. 4th Floor,1, Ganesh Chandra Avenue, P.S. Bowbazar, Kolkata-700 013. 7. Risu Impex Pvt. Ltd. 4th Floor,1, Ganesh Chandra Avenue, P.S. Bowbazar, Kolkata-700 013. 8. Mr. Utpal Das S/o. Late Nirmal Chandra Das of Aster Greens Complex, Rajarhat Main Road (Atghara), P.O. Rajarhat, Dist. 24 Paragonas (North), Kolkata-700136. also availabe at "DREAM APARTMENTS', FLAT NO. B, 2nd Floor,salua, Rajarhat, Kolkata-700136 ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Rajarshi Datta., Advocate For the Opp. Party: Mr. Aloke Mukhopadhyay., Advocate Dated : 31 Mar 2017 Final Order / Judgement Date of filing: 24.01.2012 Date of final hearing: 20.03.2017 The instant complainant under Section 17 of the Consumer Protection Act, 1986 ( for brevity, "the Act" ) is at the instance of intending purchasers against the developer and land owners on the allegation of deficiency of service on the part of them in a consumer dispute of housing construction.
Cut short of details, complainants case is that on 18.08.2011 they entered into an agreement with the Opposite Parties to purchase of a self-contained flat measuring about 1010 sq. ft. super built up area being No.2B, on the second floor along with one open car parking space on the ground floor at holding no. RGM /M/60/05, Salua, P. S. -
Airport, Kolkata - 700 136,District North 24 Parganas within the local limits of Rajarhat - Gopalpur Municipality ( Now Bidhannagar Municipal Corporation ) at a consideration of Rs.25,88,180/- @ 2315 per sq.ft. and Rs.2,50,000/- towards the price of open car parking space. The complainants booked the said property on payment of Rs. 51,000/- by cheque at the time of booking and also paid Rs. 600/- for handing over Photostat copies of papers and plan to them. The complainants have stated that on the basis the said agreement for sale they have availed home loan from GIC Housing Finance Ltd.and the said Institution had sanctioned an amount of Rs.19,97,863/- towards the home loan for purchase of the said flat. Subsequently, on 01.10.2011 and 28.11.2011 the complainants paid an amount of Rs.4,37,150/- and Rs.1,03,000/- respectively to the developer and thereby totally paid Rs. 5,91,150/- as part consideration amount leaving the balance amount of Rs.19,97,000/-. The complainants have alleged that they were always ready and willing to make payment of balance consideration amount subject to completion of flat in habitable condition and in this regard all their correspondences and requests including legal notice dated 12.01.2012 went in vain. Hence, the complainants have come up in this Commission with the instant complaint with prayer for certain reliefs, viz -(a) to direct the OP Nos. 1 and 2 to execute and register the sale deed ;(b) to direct the OP Nos. 1 and 2 to complete the unfinished work and also earmark the open car parking space ; (c) compensation of Rs. 1,00,000/- for harassment and mental agony ; (d) penal damages to the tune of Rs. 50,000/- etc. The OP Nos. 1 and 2 by filing a joint written version have admitted the existence of the agreement for sale and also payment of Rs.5,91,150/- out of total consideration amount of Rs. 25,88,180/- but it is alleged that the complainants failed to make payment of balance consideration amount within due date even after repeated reminders and as such there is no deficiency in service on the part of them. Therefore, the complaint should be dismissed with cost.
The OP No.8 by filing a separate written version has stated that on 23.08.2012 he has purchased the subject flat at a total consideration of Rs. 29,70,950/- by a registered deed of conveyance and mutated his name in the register of Rajarhat-Gopalpur Municipality and further spent a sum of Rs. 1,05,000/- on account of repairing, paints, replacement, grills and collapsible gate etc. On the basis of the pleadings aforesaid, the following points are framed for adjudication:-
(1) Are the complainants 'consumer' as defined in Section 2(1)(d)(ii) of the Act ?
(2) Are the OPs deficient in rendering services to the complainants? and (3) Are the complainants entitled to the relief or reliefs, as prayed for ?
In order to substantiate their case, the contesting parties have filed evidence on affidavit and the veracity of such statements were tested in reply on the basis of questionnaires set forth by the adversaries. Besides ocular evidence, the parties have relied upon some documentary evidence.
On the basis of materials on record, we shall proceed to discuss how far the complainants have been able to prove their case.
DECISION Point No. 1 :
Admittedly, the complainants in order to purchase the flat and the open car parking space as mentioned in schedule - B to the petition of complaint, entered into an agreement with the OPs on 18.08.201. On the date of execution of agreement for sale, the complainants have paid an amount of Rs.51,000/- by way of cheque. It is not in dispute that the complainants have further paid a sum of Rs.4,37,150/- and Rs.1,03,000/- on 01.10.2011 and 28.11.2011 respectively aggregating a total sum of Rs. 5,91,150/- out of total consideration ofRs. 25,88,150/-. The facts and circumstances indicate that the complainants being 'Consumer' as defined in Section 2(1)(d) of the Act hired the services of the OPs in a consumer dispute of housing construction.
Therefore, this point is decided in the affirmative and in favour of the complainants.
Point No.2 :
This point being vital and decisive one, both the parties have argued strenuously over this point.
The materials on record goes to show that the OP Nos.3 to 7 being owners of a piece of land measuring about 32 cottahs, 13 chitaks and 15 sq. ft. lying and situated at Municipal Holding No. RGM /M/60/2005, Mouza - Salua, under P. S. - Airport, Kolkata - 700 136, District North 24 Parganas obtained sanctioned building plan from the Rajarhat-Gopalpur Municipality for construction of a housing complex and appointed OP No.1 being the sole proprietor of 'Dream Apartment' of which OP No.2 is the Chief Marketing Officer. Being empowered, OP Nos. 1 and 2 started the construction work and at this the complainants came into contact with the developer through the marketing agency. Thereafter, an agreement for sale was entered into by OP No.1 and the complainants on 18.08.2011. It has come to surface that out of total consideration amount of Rs. 25,88,150/- for the subject flat complainants have already paid part consideration amount of Rs. 5,91,150/-. It may be pertinent to record that the complainants lastly paid an amount of Rs. 1,03,000/- to the developer on 28.11.2011. It is also evident that thereafter several correspondences were made by the complainants to ascertain the progress of construction a building and in this regard the legal notice was made on 12.01.2012. It is also evident from the record that an amount of Rs. 19.97,863/- was sanctioned by a Financial Institution in the credit of 'Dream Apartment' on 29.11.2011. However, the dispute cropped up between the intending purchaser and the developer was not settled amicably and in order to redressal of grievances, the complainants have lodged the complaint on 24.01.2012.
After lodging complaint, the complainants have prayed for an interim order U/s. 13(3B ) of the Act and by order no.2 dated 10.02.2012 an order was passed directing the parties to maintain status quo in respect of the properties in dispute and the said order continued from time to time and was in force. The startling fact is that despite of such interim order, the developer sold away the subject flat to OP No.8 (a third party) on 23.08.2012 at a consideration of Rs. 29,70,950/- and in doing so the developer did not take care to obtain permission of this Commission.
Mr. Sanjay Mukherjee, Counsel for the complainants with the able assistance of Mr. Rajarshi Datta, recorded Advocate has contended that as per 5th schedule there was no scheme of break up payment of consideration amount. He has submitted that the complainants were always ready to conclude the contract but as the construction was in incomplete condition the complainants have made several correspondences to know the progress the construction. The developer in a most shameless manner, defying the order of the Hon'ble State Commission executed deed of conveyance in favour a stranger purchaser ( OP No.8) on 23.08.2012 on a valuable consideration of Rs. 29,70,950/-. Ld. Counsel for the complainants has given emphasis on some clauses of the terms of the agreement for sale like Clause Nos. 9.1, 9.2,9.3,10.5.1, 10.5.2 and 10.5.3 and also the 5th schedule of the agreement in question. He has further submitted that during pendency of an interim order of status quo, selling out the subject flat indicates arrogance and high-handedness of the developer which requires to be dealt with heavy hands. To fortify his submissions, Ld. Counsel for the complainants has placed reliance to a recent decision of the Hon'ble Supreme Court reported in (2017) 2 SCC 301( Chief Administrator, H.U.D.A. and Ors. -vs. - Shakuntia Devi ) and a decision reported in AIR 2010 BOM 139( R.B. Upadhyay -vs.- State Commission for consumer dispute ) and submitted that though the complainant has prayed for compensation of Rs. 1,00,000/- only but under special circumstances when the order of the Commission has been intentionally flouted, the Commission may impose a huge compensation to be paid by the developer /builder in the State Consumer Welfare Fund to do justice.
Mr. Alok Mukhopadhyay, Ld. Advocate for OP Nos. 1 and 2/developer has submitted that the complainants defaulted in payment consideration amount as per terms of the agreement. He has contended that according to the terms and conditions of the agreement dated 18.08.2011 the complainants were under obligation to make payment the entire consideration amount as per 5th schedule ( Payment of total consideration ) of the agreement and in this regard as per Clause - 9.3 of the agreement the developer had no obligation to issue notice for payment. He has further submitted that a defaulter cannot maintain a consumer complaint and in this regard relying upon the decisions of Hon'ble National Consumer Commission reported in (1) 2016 (3) CPR 442 (Fatah Chand -vs. - Mohima Real Estate Pvt. Ltd. ) and (2) 2013 (4) CPR 842 ( Magan -vs. - M/s. Tapadiya Constructions Ltd. ) has submitted that the developer has every right to cancel allotment for violation of terms and conditions of agreement. Ld. Advocate for the developer has also submitted that for violation of interim order, the complainants could have initiate execution proceedings in accordance with Sections 25/27 of the Act but when the complainants did not avail such opportunity, they cannot take advantage of their own mistake at the time of final hearing of the original complaint case.
Ld. Advocate for OP no.8 has submitted that OP no.8 is a bonafide purchaser of value without notice about the Agreement for Sale between the complainants and the OP nos. 1 to 7 and as such the complaint should be dismissed against the OP no.8.
It is trite law that the parties are bound by the agreement. The evidence on record goes to show that on 18.08.2011 the parties have put their signatures in the agreement after knowing all its contents. Either of the parties never picked up any dispute as to any terms of the agreement. Therefore, the agreement between the complainants and OP nos. 1 to 7 towers above the rest. The Ld. Advocate for the respondent nos. 1 to 7 has pointed out a decision of Hon'ble Supreme Court reported in II (1996) CPJ 25 (Bharti Knitting Co. - vs. - DHL World Wide Express Courier Division of Airfreight Ltd.). In Paragraph-5 of the said decision, the Hon'ble Apex Court observed - "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".
In this backdrop, let me consider the relevant terms of the agreement. Clause-9 to the Agreement relates to total consideration, payment etc. which is reproduces below -
"9.1. Total consideration: The total consideration is Rs.25,88,150/- (Rupees twenty-five lakh eighty-eight thousand one hundred fifty only) calculated @ Rs.2315/- (Rupees two thousand three hundred fifteen) per sq. ft. super built up area of the said flat and Rs.2,50,000/- (Rupees two lakh fifty thousand) only towards price of one open car parking space which the parties confirmed and accepted. The total consideration has been fixed by mutual consent and hence, it shall not be opened to question, by either party provided however, the total consideration shall vary in the manner mentioned in clause 7.3 above and does not include the extras mentioned in clause 9.4 below.
9.2 Payment of total consideration: The total consideration shall be paid in the manner mentioned in 5th schedule below, time being the essence of contract. The buyer agrees and the covenants not to claim any right or possession over and in respect of said flat and appurtenances till such time the buyer has paid the entirety of total consideration and paid or deposited all other amounts agreed to be paid or deposited under the agreement.
9.3 No Notice for payment: The buyer shall regularly and punctually make payment of the total consideration in the manner mentioned in the 5th schedule below and it will not be obligatory on the part of the developer to serve any notice demanding payment. This agreement is and shall be deemed to be sufficient notice to the buyer".
Now, clause 10.5.1 and of the agreement provide that before the delivery of possession, the buyer shall pay to the developer all amount due and payable towards total consideration and any sum payable in terms of clause 9.4 relating to extra charges. Clause 10.5.2 relates to notice for possession which indicates that immediately after entering into this agreement, the developer shall serve a notice on the buyer (possession notice) and within 15 days from the date of possession notice, the buyer shall take over possession of the said flat after fulfilling all obligations under the agreement including payment of all amounts due to developer under the agreement. Clause 10.5.3 relates to deemed possession which provides that the buyer shall, unless the buyer takes physical possession earlier, be deemed to have taken possession of the said flat and appurtenances on the date of possession, irrespective of when the buyer take actual physical possession. Date of possession shall thus mean the date on which the buyer takes physical possession of the said flat and appurtenances on the 15th day of the date of the possession notice, whichever is earlier.
Having a look to the 5th schedule (payment of total consideration) I find that simply it has been mentioned - "the total consideration under this agreement is Rs.25,88,150/- (rupees twenty-five lakh eighty-eight thousand one hundred fifty only)" and nothing else. The 5th schedule does not show any brake-up or instalment as to payment of total consideration amount in respect of the subject flat. The contention of the Ld. Advocate for the OP nos. 1 to 7 has contended that no notice for payment was required and as such the OP no.1 had no reason to issue notice upon the complainants could not inspire me. According to clause 10.5.2, the developer was under obligation to issue possession notice asking the Complainants to take possession on payment of entire consideration amount. The developer did not take any pain to issue any such notice upon the complainants. This is a glaring example of deficiency on the part of the developer, more particularly when 5th schedule does not indicate any phase wise instalments or break up payment of total consideration amount.
In order to ascertain the veracity of statements of Developer questionnaires were put from the complainants in this regard. In answering to question nos.11 and 12 regarding payment of part consideration amount of Rs.5,91,150/-, the OP no.1 has made an evasive reply that these are matter of record. it indicates that OP no.1 had no courage to tell a truth before a Court of law. In question nos.13 & 14 it was put to the developer - 'Is it correct that complainants have sent an email requesting to send a draft copy of deed of conveyance in respect of the flat prior to going for registration' and ' Is it correct that complainants requested to OP nos.1 & 2 to allow to visit and inspect the booked flat along with car parking location and condition of the booked flat on Saturday or Sunday' to which OP no.1 replied - 'matter of record'. In another question being question no.20 it was asked to the developer - 'did the opposite parties send any letter as to when they will deliver booked flat inhabitable condition after completing all unfinished jobs' to which it was replied - 'the question cannot arise as the buyers did not perform their contractual obligations by making payment to us the balance consideration amount as per the said Agreement for Sale'.
The reply given by OP no.1/developer against the questionnaires set forth by the complainants clearly indicate that the subject flat was not in habitable condition and as such the developer evaded to give the correct reply. In any case, from the statement of OP no.8 it becomes quite apparent that at the time of purchase by him on 23.08.2012 it was not ready because in Paragraph-7 of the written version of OP no.8 reveals that he had to spent a sum of Rs.1,05,000/- on account of repairing, painting etc. which means that the developer had no moral courage to issue any possession notice to the intending purchasers as the flat in question was not inhabitable condition.
It has already been noticed that during the interim order, the developer has transferred the flat in question to OP no.8 on 23.08.2012 at a total consideration of Rs.29,70,950/-. A Consumer Forum is meant for disposal of a dispute in a summary way for a limited purpose and as such, there is no scope to cancel the said Sale Deed. But at the same time it is expected that a person must keep confidence to a Court of law in which he comes to seek justice. The developer, in all fairness had the opportunity to seek permission of the Commission prior to such sale but the manner in which the developer sold away the property to the OP no.8 indicates his highhandedness, arrogance and don't care attitude. This conduct of the developer is not only exhibits the deficiency in services but also amounts to unfair trade practice on the part of him.
The decisions referred by the Ld. Advocate for the developer in the case of Fatah Chand (supra) and in the case of Magan (supra) will have no manner of application in our case because in the 5th schedule of the agreement, there was no break up as to payment of total consideration amount and it is evident that the complainants have paid a part consideration amount of Rs.5,91,150/- out of total consideration amount of Rs.25,88,150/- and further the complainants were ready to pay the balance amount but they did not do so rightly due to non-completion of construction of the subject flat and no possession notice was given to them as per terms of the agreement.
Considering all the above, the Point no.2 is also decided in the affirmative and in favour of the complainants.
Point No.3:-
In view of the foregoing discussions in respect of Point Nos. 1 & 2, it is quite clear that the complainants are entitled to relief to the extent that they would get refund of the amount of Rs.5,91,150/- paid by them to the OP no.1 and also interest against the said amount. The developer did not take any measure to return the said part consideration amount to the complainants and invested the same to earn profit. Therefore, the amount of Rs.5,91,150/- shall carry interest @ 18% p.a. from the date of payments till its full realisation.
The complainants have claimed compensation of Rs.1,00,000/-. The factual matrix of the case indicates the sufferance of the complainants and they have been deprived from having a roof on their head due to unethical approach of the developer and for such harassment and mental agony, the complainants should get Rs.1,00,000/- as compensation. The compelling circumstances led the complainants to lodge this complaint and as such the complaint should be allowed with cost which I quantify at Rs.10,000/-.
The complainants have also prayed for penal damages of Rs.50,000/-. A penal damages or punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. In the instant case, the developer has adopted an unfair trade practice and further violated the order of a court of law but as there is no prayer clause for unfair trade practice, this Commission restrains itself in passing an award on that count. However, considering the facts and circumstances, I think the claim of the complainants of Rs.50,000/- as penal damages is quite justified and as such they are entitled to the same.
The approach of the developer goes to show that he has no respect in legal procedure and thereby took the law on his own hand and in the process he did not bother to violate the solemn order of this Commission passed in accordance with Section 13(3B) of the Act. The avowed object behind the enactment of the Act is to give better protection to the consumers. The statement of the objects and reasons inter alia provides for a speedy and simple redressal to consumer dispute and Consumer Fora have been empowered to give relief to the consumers and award wherever appropriate, compensation to consumers. The decision in the case of Chief Administrator, H.U.D.A & Ors. (supra) as referred by the Ld. Counsel for the complainants cannot be applied with all its rigour because a compensation cannot be awarded beyond the prayer clause of the petition of complaint. The fact remains that by selling the flat to a third party, the developer has gained about Rs.5,00,000/- and if this trend amongst the developers percolated, certainly, the object behind the legislation to protect the consumer will totally be frustrated. Considering the above, it appears to me that an imposition of penalty of Rs.10,00,000/- to be paid in the account of State Consumer Welfare Fund will sub serve the object of justice.
This point is also disposed of accordingly.
In the result, complaint succeeds in part. It is, accordingly, ORDERED that the complaint is allowed on contest against OP nos. 1 to 7 with cost of Rs.10,000/- to be paid by OP no.1/developer in favour of the complainants and dismissed against OP no.8 without any order as to costs.
The OP nos. 1 & 2 are jointly and severally directed to refund Rs.5,91,150/- along with interest thereon @ 18% p.a. in favour of the Complainants from the date of receipt of the same till its full realisation. The OP nos. 1 & 2 are also directed to make payment of Rs.1,00,000/- as compensation and Rs.50,000/- as penal damages to the Complainants. All the payments must be made within 30 days from date, otherwise the amount of compensation and litigation cost shall carry interest @ 9% p.a. from this date till its realisation.
The OP nos. 1 & 2 are also directed to deposit a sum of Rs.10,00,000/- Bank draft as penalty in the State Consumer Welfare Fund of this Commission with sixty (60) days positively in default the amount shall carry an interest @ 9% p.a. In the event of non-compliance within the stipulated period, complainants shall have liberty to get the order executed by invoking the provisions of Sections 25/27 of the Act.
The Registrar of the Commission is directed to send a copy of this order to the parties to this case at once free of cost for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER