State Consumer Disputes Redressal Commission
Sri Arun Ray & Anr. vs M/S. Millennium India Construction & ... on 15 November, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/744/2018 ( Date of Filing : 04 Oct 2018 ) 1. Dr. Ananda Dulal Maity S/o Sri Abinash Bhusan Maity, Vill. - Jalalkhanbarh, P.O. & P.S. Contai, Dist. Purba Medinipur - 721 401. ...........Complainant(s) Versus 1. M/s. Millennium India Construction & Ors. Regd. office at 23/15, Naktala Road, P.O. - Naktala, P.S. - Netaji Nagar, Kolkata - 700 047. 2. Sri Debasish Sarkar, partner, M/s. Millenium India Construction S/o Sri Kamal Sarkar, 287, Ganguly Bagan, P.O. - Jadavpur, P.S. - Netaji Nagar, Kolkata - 700 047. 3. Sri Samir Kr. Halder S/o Lt. Sudhir Kr. Halder, 4/45, Vidyasagar, P.O. Naktala, P.S. - Netaji Nagar, Kolkata - 700 047. 4. Syndicate Bank Dharmatola Br., Kolkata. ............Opp.Party(s) Complaint Case No. CC/745/2018 ( Date of Filing : 04 Oct 2018 ) 1. Sri Apollo Ali & Anr. P.O. - Darua, P.S. - Contai, Dist. Purba Medinipur - 721 401. 2. Mrs. Layla Sultana W/o Apollo Ali, P.O. - Darua, P.S. - Contai, Dist. Purba Medinipur - 721 401. ...........Complainant(s) Versus 1. M/s. Millennium India Construction & Ors. 23/15, Naktala Road, P.O. - Naktala, P.S. - Netaji Nagar, Kolkata - 700 047. 2. Sri Debasish Sarkar S/o Sri Kamal Sarkar, 287, Ganguly Bagan, P.O. Naktala, P.S. Jadavpur, Kolkata - 700 047. 3. Sri Samir Kr. Halder S/o Lt. Sudhir Kr. Halder, 4/45, Vidyasagar, P.O. Naktala, P.S. Netaji Nagar, Kolkata - 700 047. 4. Union Bank of India Regional office, Alpe Court, 225C, A.J.C. Bose Road, Kolkata - 700 020. 5. Contai Co-operative Bank Ltd. An Urban Co-op Bank, Head office at Contai, P.O. & P.S. - Contai, Dist. Purba Medinipur. ............Opp.Party(s) Complaint Case No. CC/746/2018 ( Date of Filing : 04 Oct 2018 ) 1. Sri Arun Ray & Anr. S/o Lt. Atal Behari Ray, Kishore Nagar, P.O. & P.S. - Contai, Dist. Purba Medinipur - 721 401. 2. Riddhi Ray S/o Lt. Arun Ray, Kishore Nagar, P.O. & P.S. - Contai, Dist. Purba Medinipur - 721 401. ...........Complainant(s) Versus 1. M/s. Millennium India Construction & Ors. 23/15, Naktala Road, P.O. - Naktala, P.S. - Netaji Nagar, Kolkata - 700 047. 2. Sri Debasish Sarkar S/o Sri Kamal Sarkar, 287, Ganguly Bagan, P.O. Naktala, P.S. Jadavpur, Kolkata - 700 047. 3. Sri Samir Kr. Halder S/o Lt. Sudhir Kr. Halder, 4/45, Vidyasagar, P.O. Naktala, P.S. Netaji Nagar, Kolkata - 700 047. 4. Union Bank of India Regional office, Alpe Court, 225C, A.J.C. Bose Road, Kolkata - 700 020. 5. Contai Co-operative Bank Ltd. Head office at Contai, Dist. Purba Medinipur. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Mr. Samrat Mukherjee, Advocate For the Opp. Party: None Dated : 15 Nov 2019 Final Order / Judgement PER: HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint under Section 17 (of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of a purchaser against a partnership Construction Firm and its partners on the allegation of deficiency of services in a dispute of housing construction.
Succinctly put, complainants case is that on 26.08.2012 he entered into an agreement with the Opposite Party No. 1 being represented by OP Nos. 2 and 3 to purchase of a self-contained residential flat measuring about 940 sq. ft. more or less super built up area on the second floor and one open car parking space measuring about 100 sq. ft. more or less on the ground floor in a G+4 storied building together with undivided proportionate share or interest lying and situated at premises No. 653, Rabindra pally, Brahmapur, P.S.- Regent Park, Kolkata- 700096, Dist- South 24 Parganas within the local limits of Ward No. 111 of Kolkata Municipal Corporation at a total consideration of Rs. 27,17,500/-. The complainant has stated that on payment of entire consideration amount, the Opposite Parties executed the deed of conveyance on 12.07.2017 and handed over the possession of the flat in question. The complainant has alleged that one day when he visited the flat he found one person of a Bank claiming himself to be the Recovery Officer of the said Bank. On enquiry the said person told that the said flat was mortgaged to the Union Bank of India. Subsequently, Union Bank of India published a notice regarding sale of the property of the entire second floor of the building in a leading Bengali Newspaper. The complainant has alleged that the Opposite Parties by adopting unfair means collected the money from him. Hence, the complainant has lodged the complaint with prayer for an award of compensation to the tune of Rs. 39,55,814/- along with interest thereon @ 7.11% p.a. and Rs. 50,000/- towards litigation costs.
The notice upon the Opposite Parties has been duly served on 06.02.2019 but despite of service of notice the Opposite Party 1 to 3 have neither appeared nor filed written version. Ultimately, the complaint was heard ex parte.
In support of his case, complainant has tendered evidence through affidavit. Besides the same, the complainant has relied upon several documents including the copy of agreement for sale, the copy of deed of conveyance etc. The overwhelming evidence on record makes it quite clear that the Opposite Party No. 1 is a partnership construction firm represented by OP Nos. 2 and 3. Evidently, on 26.08.2012 the OP No. 1 being represented by OP Nos. 2 and 3 had entered into an agreement for sale with the complainant to sell one self-contained residential flat measuring about 940 sq. ft. more or less on the second floor and one open car parking space measuring about 100 sq. ft. more or less on the ground floor in a G+4 storied building together with undivided proportionate share or interest lying and situated at premises No. 653, Rabindra pally, Brahmapur, P.S.- Regent Park, Kolkata- 700096, Dist- South 24 Parganas within the local limits of Ward No. 111 of Kolkata Municipal Corporation at a total consideration of Rs. 27,17,500/-.
As per 3rd Schedule to the agreement for sale the complainant was under obligation to pay the consideration amount in the following manner:
1. At the time of Signing this Agreement Rs. 6,00,000.00/-
Or Booking/Earnest money.
2. At the time of structural /brick work Rs. 18,00,000.00/-
3. At the time of finishing work of flat Rs. 2,00,000.00/-
(i.e. Marble/floor Tiles, Paris work etc.)
4.At the time of possession of Flat or Rs. 1,75,500.00/-
Registration, whichever earlier.
TOTAL PRICE: RS: 27,17,500.00 (Rupees Twenty Seven Lacs Seventeen Thousand Five Hundred Only) The fact remains that on payment of entire consideration amount the Opposite Parties executed the deed of conveyance in respect of flat and car parking space on 12.07.2017 which was duly registered on 13.07.2017 and also delivered possession of the same.
However, the whole trouble begun when the complainant visited his flat after obtaining possession. The complainant has purchased the flat lying on the second floor. However, it has come to surface that the developer by adopting unfair means sold out the entire second floor to one Sri Rajkumar Roy. The said entire second floor was mortgaged to Union Bank of India against a loan availed by said Sri Rajkumar Roy. Ultimately, the Union Bank of India had taken possession of the flat in question.
The complainant in his evidence on affidavit has categorically stated that he came to know that the Opposite Parties had executed 11 Nos. of deeds of the same property. The Union Bank of India has already published a notice on 05.09.2018 in the 'Ananda Bazar Patrika' for issuance of sale notice to sold out the flat in question.
The evidence of the complainant remains un-challenged. In other words, the evidence filed by the complainant through affidavit has neither been cross-examined nor impeached. Moreover, the evidence laid by the complainant appears to be trustworthy, more particularly, when the same is supported by several documents.
The facts and circumstances of the case make it quite clear that the Opposite Parties have adopted unfair means which comes under 'unfair trade practice' as defined under Section 2 (1)(d) of the Act. The basic ingredients of unfair trade practice are :
(i) it must be a trade practice;
(ii) the trade practice must be employed for the purpose of promoting the sale, use or supply of any goods or for the provision of any service; and
(iii) the trade practice adopts any unfair method or unfair or deceptive practice including any of the practices enumerated in clauses (1) to (6) of Section 2 (1)(r) of the Act.
Therefore, any trade practice which is adopted for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, by adopting any unfair method or "unfair or trade practice" for which an action under the provisions of the Act would lie, provided, the complainant is able to establish that he is a consumer within the meaning of Section 2(1)(d) of the Act.
However, neither there is any averment in the petition of complaint nor any relief has been sought for under the head 'unfair trade practice'. In a decision reported in 2015 (1) SCC 429 [General Motors (India) Private Limited -vs- Ashok Ramnik Lal Tolat and Anr.] the Hon'ble Supreme Court has observed :
"We are conscious that having regard to the laudable object of the social legislation to protect the interest of consumers, liberal and purposive interpretation has to be placed on the scheme of the Act avoiding hyper technical approach. At the same time, fair procedure is hall mark of every legal proceeding and an affected party is entitled to be put to notice of the claim with such affected party has to meet."
However, as there was no claim on the ground of 'unfair trade practice' and the Opposite Parties having no notice of such a claim, if any, relief is granted under head, 'unfair trade practice' the said order would be contrary to principles of fair procedure and natural justice.
Nevertheless, the materials on record make it quite clear that the complainant in order to purchase the flat and car parking space in question obtained loan form Bank and on payment of hard earn money of Rs. 27,17,500/-, the Opposite Parties executed the deed of conveyance but the said deed of conveyance has been executed by them by practicing fraud upon the complainant as the property in question has already been sold out to other person earlier.
In view of the above, the complainant is entitled to refund of the entire amount to Rs. 27,17,500/-. Needless to say, the complainant has suffered tremendous mental agony and harassment and on being cheated he lodged one FIR to the Officer-in- Charge, Bansdroni P.S. for which one case being Bansdroni P.S. case no. 166 dated 01.10.2018 under Section 420/120B of Indian Penal Code has been registered against the Opposite Party Nos. 2 and 3.
The Hon'ble Supreme Court in a decision reported in (2004) 5 SCC 65 (Ghaziabad Development Authority -vs- Balbir Singh) and also in a recent decision reported in II (2018) CPJ 1 (M/s. Fortune Infrastructure -vs- Trevor D'lema and others) has dealt with the question in detail and held that compensation cannot be uniform and has to be taken on the facts of each case. Dealing with the case of delay in handing over possession of the plots/houses to the consumers, the Supreme Court observed that in cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because the party is being compensated by increase in the value of the property his is getting as compared to the cases where only money is directed to be returned. But in cases where money is being simply returned, then the party is suffering a greater loss, inasmuch as, he had deposited the money in the hope of getting a flat or plot and he is being deprived of that flat or plot as well as the benefit of escalation of price of that flat or plot and, therefore, the compensation in such cases would necessarily have to be higher.
Considering the facts and circumstances of the case and keeping in view the authority referred above, we think an order directing the Opposite Parties to refund of Rs. 27,17,500/- along with compensation in the form of simple interest @12% p.a. from the date of execution of sale deed, i.e. from 12.07.2017 till the date of realisation of the entire amount will meet the ends of justice. As the situation compelled the complainant to lodge complaint, he is also entitled to litigation costs which we quantify at Rs. 20,000/-.
With the above discussion, the complaint is allowed ex parte with the following directions:
(i) The Opposite Party Nos. 1 to 3 are jointly and severally directed to refund Rs. 27,17,500/- along with compensation in the form of simple interest @ 12% p.a. from 12.07.2017 till its full realisation;
(ii) The Opposite Party are jointly and severally directed to pay Rs. 20,000/- as costs of litigation in favour of the complainant;
(iii) The above payments must be paid within 60 days from the date of communication of the order.i [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER