State Consumer Disputes Redressal Commission
Ganguly Home Search Pvt. Ltd. & Another vs Sri Ashim Dey & Others on 12 April, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Interlocutory Application No. IA/124/2019 ( Date of Filing : 06 Feb 2019 ) In Complaint Case No. CC/605/2018 1. Ganguly Home Search Pvt. Ltd. & Another 167, Garia Station Road, P.S. Sonarpur, Kolkata - 700 084. ...........Appellant(s) Versus 1. Sri Ashim Dey & Others S/o Lt. Sachin Dey, 3E/35, Keyatala Road, P.S. - Lake, Kolkata - 700 029. 2. Rinki Das W/o Sri Subhrajyoti Das, Garia Gardens, P.O.- Garia, P.S. Sonarpur, Kolkata - 700 084. 3. Amit Ganguly, Director, Ganguly Home Search Pvt. Ltd. S/o Ranjit Ganguly, P.S. Sonarpur, Kolkata - 700 084. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER For the Appellant: Mr. Indrajit Biswas, Advocate For the Respondent: Mr. Avijit Chatterjee, Advocate Mr. Indrajit Biswas, Advocate Dated : 12 Apr 2019 Final Order / Judgement
HON'BLE MR. JUSTICE ISHAN CHANDRA DAS,PRESIDENT This Interlocutory Application has been filed by the Opposite Parties No. 3 and 4 of C.C.605 of 2018 which is pending before this Commission where the Complainant of that Complaint Case prayed for certain reliefs including physical possession of the flat mentioned in the Schedule of the Petition of Complaint , for a direction upon the Opposite party to execute and register the Deed of conveyance in favour of the complainant , to direct the Opposite Parties No. 1,2 and 4 to pay compensation of a sum of Rs.1 lakh (Rupees one lakh) towards arrear Municipal Taxes payable to KMC, to direct the Opposite parties No. 3 and 4 to hand over Completion certificate of the building, to direct the OPs to pay compensation of Rs.2 lakh (Rupees two lakh) for mental agony, harassment and to pay interest @ 9% per annum on the sum of Rs.12,20,000/- (Rupees twelve lakh twenty thousand) from the date of last payment till the date of registration of the Deed of conveyance and a sum of Rs.50,000/- (Rupees fifty thousand) towards litigation cost, coupled with other consequential reliefs.
The applicants i.e. O.P.NO. 3 and 4 in their application under disposal claimed that the Complaint case was not maintainable against them as there was no Jural relationship between the Complainant and the Opposite parties No.3 and 4, as they never entered into any agreement for sale of the property nor they agreed to provide any service in terms of Section 2(1)(O) of the C.P.Act, 1986. Ld. Counsel appearing for the applicants of I.A. 124 of 2019 in course of hearing pointed out that the parties to the Agreement i.e. Land Owners (OPs No. 1 and 2) and the Developers ( OPs No. 3 and 4) entered into a Joint Venture Agreement where the parties to the agreement got equal status in dealing with the property according to their respective shares in the building, admitted the Applicants/OPs no.3 and 4, not being the proposed vendor of the Complainant , did not have any liability as service provider since there was no contract in between the Complainant and the Opposite Parties Nof. 3 and 4/applicants herein. In support of his contention ld. Counsel for the applicants relied on a decision of the Hon'ble Supreme court in Faqir Chand Gulati Vs. Uppal Agencies Private Ltd. and Another, reported in (2009) 1 WBLR (SC) 958 and pointed that as per the Joint Venture Agreement in between the Opposite Parties No. 1 and 2 (Land owners) and 3 and 4 (Developers) , parties to the agreement acquired equal status and the Developers were under no obligation to provide service since it was a Joint Venture of sharing profit and loss for constructing a building and the complainant who proposed to purchase the portion of the Land Owners' allocation shall not be termed as 'Consumer' against the Opposite Parties No.3 and 4 and accordingly he opined that the Complainant is not a 'consumer' within the meaning of Section 2(1)(d) of the C.P.Act, 1986. In this context he also pointed out that there is a litigation in between the Developers (OPs No. 3 and 4) and the Land Owners ( OPs No. 1 and 2) before the Civil court for resolution of the disputes and the Complainant who is intending to purchase the owners allocated share shall have to take recourse of the Civil Court and not the Consumer Court, he added.
Ld. Counsel for the Complainants as well as the OPs No.1 and 2 expressed a contrary view over the issue. It is submitted that the Complainant proposed to purchase the allocated share of the land owners but the Developers cannot be absolved from their liability to provide certain services including supply of completion certificate as well as registration of the Deed of conveyance and other consequential reliefs.
The complaint Case i.e. C.C. 605 of 2018 has been filed by one Asim Dey claiming certain reliefs in terms of the prayer as per his application in respect of the flat referred to in the Schedule B of the Petition of complaint . The Opposite parties No. 1 and 2 being the land owners entered into the agreement for development of the property referred to in Schedule A and they entered into the agreement for development captioned as 'Joint Venture Agreement'. On perusal of the said Agreement it appears to us that the terms of agreement between the Opposite parties were against each other i.e. ( Land owner and the Developer) but the terms of agreement clearly mandate that the terms were for development of the plot at the instance of the Developer who will perform the role of constructor of the building on behalf of the land owner as well as the Developer having land owner's allocations to the extent of 40% of the total sanctioned area whereas the Developers allocation remained 60%. The terms of agreement clearly provided that the Developers shall construct, erect and complete the entire building or buildings in all respect at the said premises in accordance with the Building Plan with good and standard quality materials as may be satisfied by the Architects from time to time .... (9.1). It was also provided that the Developers shall at his own costs and expenses and without creating any financial or other liabilities of the Land owners construct and complete the said new building or buildings .... (9.5). These terms and conditions clearly mandate that the agreement between the Opposite parties i.e. land owners and the developers was simply a 'Joint Development Agreement' and not a 'Joint Venture Agreement' though it is captioned a Joint Venture Agreement perhaps to frustrate the claim of the subsequent purchasers. The complainant herein prayed for certain reliefs like supply of Completion certificate, registration of the Deed of conveyance which can only be materialized by the Developers and not the land owners alone.
The law is settled on the point that the title or caption or nomenclature of the instrument/document is not determinative of the nature and character of the instrument of the document though the name may usually give some indication of the nature of the document as held by the Hon'ble Apex Court in Faqir Chand Gulati (supra). Since this is not a Joint Venture Agreement as per essential features of the document the complainant who is going to purchase the flat cannot be termed other than a consumer and the OPs NO.3 and 4 the applicants herein shall be held responsible for providing service to him in respect of the raised construction and other related benefits.
Accordingly, we firmly hold that the I.A. application No. being 124 of 2019 under disposal deserves rejection as the same being devoid of merit.
With the above observations the I.A. being 124 of 2019 is disposed of.
Fix 18.6.2019 for filing affidavit of service in respect of OP 12. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER