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STATE
CONSUMER DISPUTES REDRESSAL COMMISSION |
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WEST
BENGAL |
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11A,
Mirza Ghalib Street, Kolkata - 700087 |
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BEFORE: |
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HON'BLE MR. SAMARESH PRASAD
CHOWDHURY PRESIDING MEMBER |
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HON'BLE MRS. Dipa Sen ( Maity )
MEMBER |
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For the Complainant: |
Mr. Anindya Chakraborty, Advocate |
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For the Opp. Party: |
Mr. Avijit Chatterjee, Ms. Asha
ghosh, Ms. Sanhita Shaoo., Advocate |
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Inperson/, Advocate |
Dated : 19 Dec 2019
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Final
Order / Judgement |
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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 couple/ intending purchaser
against a partnership construction firm and its partners (Opposite Party Nos.
1 to 3) and the landowners (Opposite Party Nos. 4 and 5) on the allegation of
deficiency of services, primarily on the part of developer in a dispute of
housing construction.
Succinctly put, complainants’ case is that on 09.01.2015 they entered into an
agreement with the Opposite Parties to purchase of a flat measuring about 900
sq. ft. super built up area being flat No. 2A on the second floor in a
building christened ‘Paroma Palace’ lying and situated in R.S. plot No. 1314
corresponding to R.S. Khatian No. 91 within Mouza- Haridevpur, P.S.-
Thakurpukur, Kolkata- 700104, Dist- South 24 Parganas at a total
consideration of Rs. 22,05,000/-. On the date of execution of agreement for
sale, complainants have paid Rs. 4,14,000/- as earnest money/part
consideration amount towards the said total consideration amount by way of
three cheques. The complainants have stated that as per terms of the
agreement the developer was under obligation to complete the construction
within 24 months from the date of execution of agreement for sale. The
complainants have alleged that the developer has no intention to get sanction
of the building plan from the Kolkata Municipal Corporation and did not take
any measure for raising construction of the building. The complainants have
also stated that in this regard all their requests and persuasions went in
vain. Finding no other alternative, on 28.01.2016 the complainants requested
the Opposite Parties to refund the amount but it also remains unheeded.
Hence, the complainants have come up in this commission with the present
complaint with prayer for following reliefs, viz.- (a) to direct the Opposite
Parties to refund the consideration amount of Rs. 4,14,000/- with the
prevalent rate of interest from the date of execution of the agreement for
sale; (b) to pay compensation of Rs. 2,00,000/- for harassment and mental
agony; (c) to grant costs of the proceeding etc.
The Opposite Party Nos. 1 to 3/ developer did not file written version.
However, applying the principles of law laid down by the Hon’ble Supreme
Court reported in (1988) 4 SCC 613 (Modula India –vs- Kamakshya Singh Deo)
the Opposite Party Nos. 1 to 3 were given opportunity to file questionnaire
to test the veracity of statements of complainant and to address argument in
respect of complainants case.
The OP No. 4 i.e. one of the landowners by filing a written version has
stated that due to negligence on the part of developer the venture has not
only shattered completely but also created legal encumbrances upon
their landed property. The OP No. 4 has stated that he is in no way
responsible for the inconveniences of the complainants.
In support of their case, Smt. Sreyoshi Bandopadhayay, complainant No. 1 has
tendered evidence through affidavit on behalf of herself and also on behalf
of her husband i.e. complainant No. 2. The complainants have given reply
against the questionnaire set forth by OP Nos. 1 to 3 and OP No. 4.
Sri Dipankar Biswas (OP No. 4), one of the landlords has also tendered
evidence through affidavit. He has also given reply against the questionnaire
set forth by the adversaries.
At the time of final hearing on behalf of complainants and Opposite Party
Nos. 1 to 3, brief notes of argument have been filed.
The overwhelming evidence on record make it abundantly clear that the
Opposite Party No. 1 is a partnership construction firm to which Opposite
Party Nos. 2 and 3 are the partners. Opposite Party Nos. 4 and 5 are the
joint owners in respect of a piece of land measuring about 4 cottahs 15
chittaks 20 sq. ft. more or less lying and situated at R.S. Plot No. 1314,
R.S. Khatian No. 41, Mouza-Haridevpur, P.S.- Thakurpukur, Kolkata- 700104,
Dist- South 24 Parganas within the local limits of Kolkata Municipal
Corporation. Evidently, on 29.08.2014 the landowner had entered into a
development agreement with OP No. 1 construction firm for raising
construction of a multi-storied building over the said property. On the
self-same date, the Opposite Party No. 4 also executed and registered a
General Power of Attorney in favour of Opposite Party No. 1, a partnership
firm represented by Opposite Party Nos. 2 and 3 authorising them to enter
into an agreement for sale with the intending purchasers and to receive the
consideration money in respect of developers allocation.
Being emboldened with the power conferred upon them, the Opposite Party Nos.
1 to 3 had entered into an agreement for sale with the complainants on
09.01.2015 to sell one self-contained flat measuring about 900 sq. ft. which
includes 25% super built up area being flat No. 2A on the second floor in a
building christened ‘Paroma Palace’ lying and situated over the property as
mentioned above on a total consideration of Rs. 22,05,000/-. Admittedly, on
the date of execution of agreement for sale i.e. on 09.01.2015 the
complainants have paid Rs. 4,14,000/- as earnest money/part consideration
amount by way of three cheques amounting to Rs. 52,000/-, Rs. 1,00,000/-, Rs.
2,62,000/- respectively totalling to Rs. 4,14,000/-.
Needless to say, the parties are bound by the terms of the agreement. Clause
(vi) (inner page 12) of the Agreement for Sale specifically provides: “(vi) THAT the construction of the
building will complete within 24 months of the date of execution of this
agreement until and unless it is being affected from any natural calamities
and wear and tear or for any other reasons which may be beyond the control of
the owners and vendors.” Therefore,
as par terms of the agreement, the developer was under obligation to complete
the construction within 24 months from the date of agreement for sale i.e.
within 08.01.2017. However, the Opposite Parties No. 1 to 3 have failed to
keep their promise. In other words, the OP Nos. 1 to 3 even could not obtain
sanctioned building plan from the Kolkata Municipal Corporation to start
construction. In this regard, all the requests and persuasions of the
complainants to start construction and to deliver possession within time
frame turned a deaf ear. The evidence on record also speaks that under
compelling circumstances the complainants by a letter dated 28.01.2016
requested the developer to refund the amount paid by them. The evidence on
record speaks that OP No. 2 on behalf of OP No. 1 construction firm issued
two A/c payee cheques amounting to Rs. 50,000/- each being cheque Nos. 017920
and 017921 drawn on Central Bank of India, Barasat Branch dated 23.07.2016
and 20.08.2016 respectively, but both the cheques were dishonoured. Mr.
Abhijit Chatterjee, Ld. Advocate for the OP Nos. 1 to 3 has submitted that in
obtaining sanctioned building plan the developer has faced several
difficulties and in such a situation the developer had expressed their
intention to move out of the project. However, the OP No. 4 has assured that
it will be his responsibility to obtain the sanction plan. It has been
submitted on behalf of the developer that due to negligent act on the part of
OP No. 4 they could not be able to complete the project. It
is well settled that an inter-se dispute between the landowner and the
developer cannot be used as a ploy to wriggle out the obligations of the
developer under the agreement and to put the buyer in lurch. In a land mark
decision reported in (2008) 10 SCC 345 (Faqir Chand Gulati –vs- Uppal
Agencies Private Limited) the Hon’ble Supreme Court has observed that in case
of any grievances of the developer against the landowner, he may approach a
competent civil court for redressal of his grievances. Equally if the
landowner has any claim against the developer, he may either seek relief from
a Forum constituted under the Act or may approach a competent Civil Court. In
any case, the dispute between the landowner and the developer cannot take
away the right of a ‘Consumer’. In
view of the above, the complainants are entitled to some reliefs. Considering
the nature of the case, we think, an order directing the Opposite Party Nos.
1 to 3 to refund Rs. 4,14,000/- along with compensation in the form of simple
interest @ 9% p.a. from the date of each payment till its realisation will
meet the ends of justice. Under compelling circumstances, the complainants
have approached this commission and as such they are entitled to litigation
costs which we quantify Rs. 20,000/-. In view of the above discussion, the complaint is disposed
of with following directions: (i) The Opposite Party Nos. 1 to 3 are jointly and
severally directed to refund Rs. 4,14,000/- to the complainants along with
compensation in the form of simple interest @ 9% p.a. from the date of each
payment till its realisation; (ii) The Opposite Party Nos. 1 to 3 are jointly and
severally directed to pay Rs. 20,000/- to the complainants as costs of
litigation; (iii) The above payments should be made within 90 days
from date in terms of the above order. |
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[HON'BLE
MR. SAMARESH PRASAD CHOWDHURY] |
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PRESIDING
MEMBER |
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[HON'BLE
MRS. Dipa Sen ( Maity )] |
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MEMBER |
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