Brief notes of Argument in consumer case - N.K. Constructions

 

Before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at premises being no. 11A, Mirza Ghalib Street, Kolkata – 700 087.

 

                             Complaint Case no. CC/554/2017.

 

In the matter of :-

                                                          Manoj Dutta,

                                                                   …… Petitioner

-          Versus –

N. K. Constructions and others,

………Opposite Parties

 

BRIEF NOTES OF ARGUMENT

ON BEHALF OF THE PETITIONER

MANOJ DUTTA

 

Facts :

 

1. The Complainant being in dire need of a residential accommodation, had entered into an agreement dated 16.10.2015, with the developer for a self contained flat being no. MMD-15D, Block –C, with a super built up area of 744 sq. ft. East side of the building named Manisha Apartment along with a car parking space against a total consideration of Rs. 19,71,600/- and Rs. 55,000/- for electric and maintenance charges.

 

2. The Complainant had paid such consideration for the subjected flat and charges towards electric and maintenance. The schedule flat was promised to be handed over, by the developer, in habitable condition within 15 months from the date of the agreement i.e. 16/10/2015, within 16/03/2017.

 

3. The Complainant duly acted in terms of the agreement and made payment strictly as per the schedule. Thus it is evident on the face of record that the complainant had performed on his part, therefore the developer is legally bound to render appropriate services, interalia, strictly as per the agreement dated 16/10/2015, by constructing and delivering possession of the residential flat to the complainant upon completion of the same by 16/03/2017.

 

4. The Developer failed and neglected to perform in terms of the agreement and complete the construction of the flat and handover the possession of the same to the complainant being consumer as meant for the Consumer Protection Act 2019, within schedule period on 16.03.2017.

 

5. Since October 2015, the Complainant time and again requested the Developer to hand over the Possession of the said subjected flat within the stipulated period. However, after receipt of the entire consideration amount, the Developer showed no improvement in construction and development of the said subjected flat and did not hand over the same within the stipulated period, within 16.03.2017.

 

6. The Developer has taken a dilatory tactics to harass a bonafide consumer by way of severe deficiency in service and unfair trade practice. The developer is also enjoying the interest accrued on such consideration money paid by the complainant in terms of the said agreement for sale.

 

7. The developer has received the entire consideration money as well as the charges towards electricity and maintenance. The residential flat was to constructed and possession delivered by 16.03.2017, however even after lapse of almost one and half year the residential flat was not ready for possession. The construction of the flat yet to be completed. The developer has stated no reason for such inordinate delay and has further failed and neglected to act in terms of the agreement to compensate the complainant for such delay in possession. That apart the developer has maintained a stoic silence against the eager query of the complainant, while the cause of action runs from day to day.

 

8. In the given facts and circumstances, there is a deficiency in service on the part of the developer and the complainant has suffered loss and damages and as such he is entitled to appropriate relief as per provisions of the Consumer Protection Act’ 2019.

 

During the proceeding ;

 

9.    On receipt of notice, the Opposite Party no. 1, 2, 3 & 4, has appeared in the present consumer proceeding. The opposite parties has submitted their written version, cited as written version by the Opposite Party no. 1, 2, 3, & 4, though there is no such averment has been given by the Opposite Party no.1, that the Opposite Party no. 2,3, & 4, has ever been authorized him to give such written version on their behalf also.

 

10. The said written version of the opposite party no.1, is in very formal in nature based on denial only. However the opposite party contended that the complainant what he has stated in paragraph number 2, 3, 4, 5, 6, & 7, of the complaint case that is correct. The opposite party no.1, even after admitting the facts and contents and purports of the consumer complaint, failed to answer on allegations raised by the petitioner, which are well founded and established.

11. The opposite party no.1, did not produce any document, to show that the subjected flat at the premises has ever delivered to the complainant by producing completion certificate of the premises from concerned Civic Body, as well as the Letter of Possession, So far.

 

12. The opposite party no.1, obliged to state some additional facts to cover-up his deficiency in services to the complainant, which are as follows;

 

Paragraph number 8 – That this opposite parties humble stated that they had applied to West Bengal State Electricity Distribution Company Limited (WBSEDCL) for sketching a new line for service connection showing the premises from existing LV & MV line. The said department had issued the notice to the Opposite Parties dated 26/10/2016 memo No. 1003519779/ APP RECT/01, and deposited @ Rs. 9,10,196/- only dated 13/3/18 to WBSEDCL.

 

Paragraph number 9 – That this Opposite Parties further stated herein that they did not give any electric connection to their lot of flats because delay to connection with the electric transformer after that the opposite parties have been going several times but the WBSEDCL department did not give the said electric transformer of the premises of the building for which the opposite parties could not give connection to the flat holders of the building.

 

Paragraph number 10 – That the Opposite Parties further stated herein that a lot of flat holders could not complaint of the same because they knew the electric connection will be delayed after long time for which they purchased a lot of flats of the building. The petitioner in this case wrongly complained before the Learned Court that’s why who wanted to know about this problem as such he purchased the flat with consent of the opposite parties.

 

13. The Opposite Party no.1, categorically stated in the Written Version in paragraph number 11, as follows;

 

“That the Complainant what he has stated in paragraph 2,3,4,5,6, &7 of complaint case that is correct”.

 

14. The Opposite Parties consequentially submitted their Evidence on affidavit wherein the Opposite Parties stated as follows;

 

Paragraph number 9 – That all the flat owners of the building i.e. Manisha Apartment are consuming the electricity from that transformer as well as the lift is under construction for the delay of delivering of the transformer from the concerned office of the WBSEDCL. This is in the knowledge of all the flat holders including the Petitioner.

 

Paragraph number 11 – That the allegations of the petitioner are baseless as it is not our fault to deliver him the facilities but due to the several times refusal and delay of the concerned office of the WBSEDCL we could not provide them the facilities but we have arranged a substitute procedure for consuming the electricity from our other building and this secondary connection of electricity has been provided to all the 34 flats including the petitioner’s flat of the said building.

 

15. That it is pertinent to mention that the opposite parties contentions as stated in their written version, changed with further additional facts in respect to the lift and concern to the Electricity connection, so, far. The facts apart from the pleading of the opposite parties should not take on record, while weighing the evidence placed by the Opposite Parties.

 

16. That while the Complainant put forward the questionnaire on submissions of the Evidence on Affidavit of the Opposite Parties. The Opposite Parties did not reply to the specified questions given by the Complainant, and again submitted their written contentions insist of reply to the questions of the complainant.

 

17. The Opposite Parties are not even due diligent to contest the Consumer proceeding, which apparently shows cause of their deficiency in services and unfair trade practices as meant for in the Consumer Protection Act’ 2019.

 

Submissions :

 

18.  The material facts placed by the Petitioner is unchallenged.

 

19.  The Documents relied on by the Petitioner, as (a) List of Document submitted to Bank, (2) Receipt of Electric Transformer and maintenance, (3) Sanctioned Letter received from Bank, (4) Copy of Letter forwarded to NK Construction for handing over the Flat, (5) another copy of letter forwarded to NK Construction for handing over of the flat, (6) Copy of Deed of Sale, are sufficient to established the contents & purports of the petitioner as stated in his petition of consumer complaint and his Evidence on Affidavit.

 

20. In the given facts that the subjected flat is still not completed. The agreed terms for completion of the flat, has been violated by the opposite parties.

 

21. The facts and the Documents placed by the Petitioner has not been rebutted by the Opposite Parties.

 

22. In the given facts, your petitioner is entitled well to get relief in terms of his prayer, placed before the Hon’ble Commission.

 

Judicial references :

 

23. In the case of Saradamani Kandappan Vs. S. Rajalakshmi & Ors., [ (2011) 12 SCC 18], the Honble Supreme Court has observed that as a general preposition of law time is not essence of contract unless the parties to the contract intend to make time an essential condition for performance of contract, by expressly providing so or it can be inferred by necessary implication from conduct of the parties. The Apex Court has appears to have said that the said general presumption of law that time is not the essence of a contract that is for sale of immovable properties needs to be revisited as time forms an essential condition for the performance of contract in circumstances of ever-increasing prices of real-estate property which are bound to affect transactions of sale of immovable property. In our considered view, the condition that time shall be the essence of this contract is an essential condition applying to any clause in the Agreement where time is fixed.

 

24.  The Judgment dated 31/07/2017 of the Honble National Commission in Consumer Complaints No. 1131 to 1140 of 2016 ( C.C. No. 1130/2016. Niru Kaushal & Anr. Vs. Unitech Ltd.) and Judgment dated 06/05/2019 in Consumer case No. 1702/2016, [Shalab Nigam Vs. Orris Infrastructure and 3C Company (NCDRC)]. In the cases supra and in many other cases like Complaint No. 347 of 2014, Swarn Talwar and 2 Ors Vs. Unitech Ltd. and other connected consumer complaints. (Judgment dated 14/08/2015), Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matters. (Judgment dated 08/06/2015), similar view has been taken. it is observed as under:- It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms. However, a term of a contract, in my view will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice.

 

25. In the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra [Civil Appeal No. 3182 of 2019 @ SLP (C) No(S). 1795 of 2017], the respondent had paid an amount of Rs. 39,29,280/- in 2006 in terms of letter of allotment dated 20/09/2006. The agreement between the parties envisaged that the appellant would hand over possession of a Row House to the respondent by 31/12/2008 with a grace period of a further six months ending on 30/06/2009. The respondent filed a consumer complaint praying for possession of the Row House and in the alternative for the refund of the amount paid to the developer together with interest at 12% per annum. Compensation of Rs. 20 lakhs was also claimed. The State Commission allowed the complaint by directing the appellant to refund the moneys paid by the respondent together with interest at 12% per annum and compensation of Rs. 5 lakhs. The National Commission, by Judgment dated 21/11/2016, modified the order by reducing the compensation from Rs. 5 lakhs to Rs. 2 lakhs. It was contended before the Honble Supreme Court that the primary relief which was sought in the consumer complaint was for delivery of possession and the completion certificate was received on 29/03/2016, which was intimated to the respondent on 11/04/12016. Before the State Commission, in its written submissions, the appellant had offered possession of the Row House to the respondent. Nearly seven years had elapsed after extended date for the delivery of possession which expired on 30/06/2009. When the buyer was in default, the agreement stipulated that interest at the rate of 18% per annum from the date of default untill the date of payment would be charged for a period of two months, failing which the allotment would be cancelled by deducting 5% of the entire value of the property. The Honble Apex Court held that the agreement was evidently one sided since for a default on the part of the buyer, interest at the rate of 18% was liable to be charged but a default on the part of the developer in handing over possession would make him liable to pay interest only at the savings bank rate prescribed by the SBI. The Honble Supreme Court held that a period of seven years is beyond what is reasonable. The orders passed by the State Commission and the National Commission for refund of moneys were held to be justified. Only the interest of 12% per annum as granted by the National Commission was reduced to 9% per annum. It was contended by the Ld. Counsel for the said OPs that the case supra is distinguished since the period of delay was seven years. In the present case, the delay is more than 3 years and this delay also cannot be considered as negligible. In our considered view, this delayis also not reasonable. In the present case, though the Complainant has prayed for compensation (rent assistance) amount on account of delay in handing over possession, however, the principle prayer is for refund of the amount paid to the said OPs. In the Consumer Case No. 2524 of 2017 (Amit Soni & Anr. Vs. M/s. Umang Realtech Pvt. Ltd. & Anr.), in similar circumstances, the Honble National Commission, by relying upon the Judgment of the Apex Court in the case of Kolkata West International City Pvt. (supra), has allowed the complaint in part directing both the opposite parties jointly and severally to refund the principle amount with interest @ 12% per annum from the respective dates of deposit till the date of realisation together with compensation of Rs. 1,00,000/- and costs of Rs. 25,000/-.