State Consumer Disputes Redressal Commission
Mrs. Anjana Dey vs Sri Priya Nath Saha on 5 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/165/2015 1. Mrs. Anjana Dey W/o Late Dr. Dipak Kumar Dey, N.N. Dutta Road, Silchar, Pin - 788 001, Assam. 2. Dr. Deepanjan Dey S/o Lt. Dr. Dipak Kumar Dey, C/o Mr. Sujit Patra, Flat-3A, Janani Apartment, 79E, Maharani Indira Devi Road, P.O. & P.S. - Parnarsree, Kolkata - 700 060. ...........Complainant(s) Versus 1. Sri Priya Nath Saha S/o Late Chunilal Saha, 54, Ekdalia Road, P.S. - Gariahat, Kolkata - 700 019. 2. Sri Prasanta Saha S/o Sri Priya Nath Saha, 54, Ekdalia Road, P.S. - Gariahat, Kolkata - 700 019. 3. Sri Susanta Saha S/o Sri Priya Nath Saha, 54, Ekdalia Road, P.S. - Gariahat, Kolkata - 700 019. 4. M/s. A2 Services Pearl Elegance, Gr. Floor, 1554, Madurdaha, P.O. - EKT, P.S. - Anandapur, Kolkata - 700 107. 5. Sri Aniruddha Mukherjee, partner of M/s. A2 Services S/o Sri Nikhil Mukherjee, 64, Radha Krishna More, Nikuthi Danga, S.C. Sen Road, Purulia 723 101. 6. Sri Arnab Dasgupta, partner of M/s. A2 Services S/o Sri Goutam Dasgupta, Pearl Elegance, Flat no.-1, 1554, Madurdaha, P.O.- EKT, P.S. Anandapur, Kolkata - 700 107. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Partha Sarothi Kashyapi , Advocate For the Opp. Party: Mr. N. R. Mukherjee, Mr. Sourya Mukherjee, Advocate Mr. N. R. Mukherjee, Mr. Sourya Mukherjee., Advocate Mr. N. R. Mukherjee, Mr. Sourya Mukherjee., Advocate Mr. Ved Sharma, Advocate Mr. Ved Sharma, Advocate Mr. Ved Sharma, Advocate Dated : 05 Jan 2018 Final Order / Judgement Date of filing - 12.05.2015 Date of final hearing - 18.12.2017 The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of intending purchasers against the Landowners (Opposite Party Nos. 1 to 3) and the Developer and its partners (Opposite Party Nos. 4 to 6) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
Succinctly put, Complainants' case is that on 11.03.2011 they had entered into an Agreement for Sale with the Opposite Parties to purchase of a self-contained flat measuring about 1050 sq. ft. being Flat No.06 on the 4th floor along with one covered car parking space measuring about 135 sq. ft. on the ground floor in a G+4 storied building lying and situated at Premises No.387, Madurdaha, P.S.- Tiljala (at present - Anandapur), Kolkata - 700107, Dist - South 24 Parganas within the local limits of Ward No.108 of Kolkata Municipal Corporation at a total consideration of Rs.31,50,000/-. The complainants have stated that they have already made a total payment of Rs.25,20,000/- on diverse dates out of the said total consideration and ready and willing to pay the balance amount of Rs.6,30,000/-. It was stipulated that the developer will deliver the possession on or before July, 2011. The Complainants have also stated that as per Agreement, in the event of failure on the part of the developer to deliver possession within the stipulated period, the developer shall be liable to pay damages @ Rs.4,000/- per month to the purchasers till delivery of the flat in the building. The complainants have stated that their requests and persuasions including notice turned a deaf ear. Hence, the complainants have filed this complaint against the opposite parties with prayer for certain reliefs, viz.- (a) to handover the scheduled mentioned flat and open car parking space; (b) to complete the registration process; (c) for payment of Rs.4,000/- per month only till handing over possession; (d) Rs.5,00,000/- for increased amount of stamp duty and registration fees due to delay in completion of registration; (e) Rs.3,00,000/- as compensation for harassment and mental agony; (f) litigation cost of Rs.1,00,000/- etc. The Opposite Party Nos. 1 to 3/Landowners by filing a written version have stated that they never promised anything to the complainants and did not receive any consideration from the complainants and as such the complaint should be dismissed against them.
The Opposite Party Nos. 4 to 6/Developer and its partners by filing a separate written version have stated that in view of the provisions of Section 12A of the West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (in short, 'the Promoters Act') this Commission has no jurisdiction to entertain the complaint. The OP Nos. 4 to 6 have categorically stated that the complainants were supposed to pay off about 90% of the consideration money i.e. Rs.28,35,000/- to them prior to execution and registration of Deed of Conveyance but the complainants paid a sum of Rs.25,20,000/- and till date an amount of Rs.6,30,000/- is due and payable and as such question of deficiency on the part of them does no arise.
During hearing of the case the parties have tendered evidence on affidavits. The contesting parties have also given reply against the questionnaire set forth by their adversaries. However, the OP Nos. 4 to 6 did not file any reply against the questionnaire put forward by the complainants. Besides the same, the parties have also filed some documents in support of their respective cases.
On perusal of pleadings, evidence led by the parties and having heard the Ld. Advocates appearing for the respective parties, it emerges that the OP Nos. 1 to 3 are the joint owners of a piece of land measuring about 4 cottahs 13 chittaks and 15 sq. ft. of land lying and situated at Premises No.387, Madurdaha, Dist- South 24 Parganas, Kolkata - 700107 within the local limits of Ward No.108 of KMC. On 26.05.2009 the OP Nos. 1 to 3 in order to construct a G+4 storied building over the said land, entered into an agreement with OP No.4 for the purpose of raising construction. On that date, the OP Nos. 1 to 3 appointed the developer as their constituted Attorney by the strength of a Registered General Power of Attorney to negotiate terms for and to enter and conclude any Agreement for Sale in respect of developer's allocation. Being emboldened with the authority entrusted upon them, the OP Nos. 4 to 6 had entered into an agreement for sale with the complainants to sell of a self-contained flat measuring about 1050 sq. ft. being Flat No.06 on the 4th floor along with one covered car parking space measuring about 135 sq. ft. on the ground floor in a G+4 storied building lying and situated at Premises No.387, Madurdaha, P.S.- Tiljala (at present - Anandapur), Kolkata - 700107, Dist - South 24 Parganas within the local limits of Ward No.108 of Kolkata Municipal Corporation at a total consideration of Rs.31,50,000/-. The complainants have already paid Rs.25,20,000/- as part consideration amount towards the total consideration amount and an amount of Rs.6,30,000/- is still due and payable by the complainants in favour of the developer.
In Clause-9 of the Agreement for Sale dated 10.06.2010 it was agreed that the developer shall complete the construction of the building in all respects and make ready for possession of the said apartment to the purchasers on or before July, 2011 subject to the compliance of terms and conditions mentioned in the agreement. In Clause-14 of the said Agreement, it was also stipulated that the developer shall be liable to deliver possession of the said flat in the said building to the purchasers on or before the said stipulated date otherwise the developer shall be liable to pay damage @ Rs.4,000/- per month to the purchasers till the delivery of the flat in the building. All these are admitted facts and in Paragraph-7 of written version, the OP Nos. 4 to 6 have stated that the contains of Paragraph Nos. 1 to 8 in the petition of complaint are matters of record and what is stated above are all contained in Paragraph Nos. 1 to 8 of the petition of complaint.
It is not in dispute that the developer has failed to fulfil his obligations to handover the flat in favour of the complainants within the time frame i.e. within July, 2011. The developer has failed to bring out any case of Force Maejure circumstances and there is no evidence whatsoever that the developer has ever wrote any letter to the complainants to take possession of the subject flat by paying the balance consideration amount. Therefore, the developer was deficient in rendering services as a service provider as per terms of the agreement as defined in Section 2(1)(g) read with Section 2(1)(o) of the Act.
Mr. Ved Sharma, Ld. Advocate for OP Nos. 4 to 6 has submitted that the complainants are not entitled to any amount of compensation when there was a stipulation in the Agreement that for the delay in delivery of possession, the developer shall pay Rs.4,000/- per month to the complainants till delivery of the flat in question. In support of his contention, he has placed a decision of Hon'ble Supreme Court reported in Appeal (Civil) 7975 of 2001 [Dr. J.J. Merchant & Ors. - Vs. - Shrinath Chaturvedi], a decision of Hon'ble National Consumer Commission dated 15.12.2015 in the case of Padmini Malhotra - Vs. - M/s. Era Land Marks (India) Ltd. and also a decision of this Commission dated 31.10.2017 in CC/200/2016 [Shabanam Parveen - Vs. - Sri Sunit Das & 4 Ors.].
Per contra, Ld. Advocate for the complainants has contended that due to delay in registration of the flat, the value of the flat has been increased for which the complainants have to bear the enhanced stamp duty and registration cost and therefore, the prayer for Rs.5,00,000/- for increased amount of stamp duty and registration appears to be reasonable.
Ld. Advocate for OP Nos. 1 to 3/Landowners submits that it is a matter between the developer and the intending purchasers and they have nothing to do with it.
Needless to say, the parties are bound by the agreement. The parties have signed the Agreement for Sale after knowing its pros and cons without picking up any dispute as to the terms and conditions of it and as such the contents in the Agreement must be followed by the parties. Therefore, when as per Clause-14 of the Agreement, the developer has failed to hand over the subject flat to the complainants within the time frame, they must pay damages @ Rs.4,000/- per month to the complainants till the delivery of the flat.
The developer has already received more than 80% of the total consideration amount and the complainants are ready to pay the balance amount but due to negligence or failure on the part of the developer, the construction could not be completed. Meanwhile, the value of the flat has been increased. The developer was under obligation to hand over the flat in question by July, 2011 but even after long six years, the developer could not deliver the possession to the complainants and due to lapse on the part of developer, the value of the flat and registration cost has been increased to a great extent after six years from the stipulated time. Therefore, unless the complainants are given the balance amount for the purpose of stamp duty and registration cost, certainly the complainants will be prejudiced. The complainants have suffered much due to conduct and attitude of the developer and as such the complainants are entitled to compensation and considering the loss suffered by the complainants in the case, it appears to me that a compensation of Rs.3,00,000/- in the facts and circumstances of the case will meet the ends of justice. The unethical approach of the developer led the complainants to lodge the complaint and as such the complainants are entitled to litigation cost which I quantify at Rs.10,000/-
Last but not the least, the OP Nos. 4 to 6 in their written version have mentioned that in view of Section 12A of Promoters Act, this Commission has no jurisdiction to entertain the complaint. In the written version, the OP Nos. 4 to 6 have mentioned the decisions in the case of - (1) Narayan Chandra Ghosh & Anr. reported in 2006 (1) CHN 40, (2) the case of Bithi Das - Vs. - Debabrata Majumdar reported in 2014 (2) ICC 853. In a of late decision reported in 2016 (3) CHN (Cal) 464 [Md. Akbar Kamal - Vs. - Tabraiz Alam Siddiqui] the Hon'ble High Court after discussing so many decisions including the decision in the case of Bithi Das (supra) and Rita Das - Vs. - Jayashri Ghosh reported in 2012 (3) CLJ 291 has observed that despite the provision of Section 12A, a Consumer Forum has the jurisdiction to entertain a complaint against the developer/promoter.
Considering all the above, the petition of complaint is allowed on contest with cost. The opposite parties are jointly and severally directed to execute the Sale Deed in favour of the complainants within one month from date. The OP Nos. 4 to 6 are also directed to handover the possession of the property mentioned in Schedule 'B' of the petition of complaint to the complainants within 30 days from the date of receipt of balance consideration amount of Rs.6,30,000/-. The OP Nos. 4 to 6 are further directed to pay Rs.4,000/- per month as damages to the complainants as per Clause-14 of the Agreement for Sale dated 10.06.2010. The OP Nos. 4 to 6 are also directed to pay Rs.3,00,000/- to the complainants as increased amount of stamp duty and registration fees and also litigation cost of Rs.10,000/- aggregating Rs.3,10,000/- which must be paid within 30 days from date otherwise the amount shall carry interest @ 8% p.a. from date till its realisation.
The Registrar of the Commission is directed to send a copy of this order to the parties to the case at once free of cost for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER