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Debashis Nath & Others v/s G M N Construction & Others


Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- V NATH & CO (CONSTRUCTION) PVT LTD [Active] CIN = U45201WB1981PTC033865

Company & Directors' Information:- NATH CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U45200BR1986PTC002487

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

    Complaint Case No. CC/105/2016

    Decided On, 14 February 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER

    For the Complainant: Siddhartha Sarkar, Advocate. For the Opp. Party: S. Ghosh Dastider, Esrar Ahmed, Advocates.



Judgment Text

The instant complaint under Section 17 (inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of intending purchasers against a Partnership Construction Firm (Opposite Party No.1), its Partners (Opposite Party Nos. 2 to 4) and the landowners (Opposite Party No.5) 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 OP No.5 is the owner of a piece of land measuring about 3 cottahs 6 chittaks lying and situated at Holding No.24, Milan Pally, P.S.- Dum Dum, Kolkata – 700079, Dist- North 24 Parganas within the local limits of Ward No.5 of Dum Dum Municipality. On 21.09.2012 OP No.5 entered into a Development Agreement with OP Nos. 1 to 4 and also a supplementary Development Agreement on 22.11.2013 under certain terms and conditions. The landowner also executed a registered Power of Attorney in favour of the developer on 24.10.2011. During the construction work, OP No.1 had entered into an agreement with complainant no.1 to sell one flat measuring about 1180 sq. ft. super built up area being Flat No.2A on the 2nd floor at a total consideration of Rs.27,25,800/-. The OP No.1 Construction Firm also entered into an agreement with complainant No.2 to sell one flat measuring about 770 sq. ft. super built up area on 2nd floor at a total consideration of Rs.17,78,700/-. The developer had also entered into an agreement with complainant nos. 3 & 4 to sell one flat measuring about 770 sq. ft. super built up area on the 3rd floor at a consideration of Rs.15,93,515/-. The complainants have alleged that they had to take possession of schedule mentioned flat in incomplete and inhabitable condition. Time and again they requested the OPs/developer to complete the incomplete works of the building and the flat but the developer avoided the same on different pretexts. The complainants have specifically stated that due to non-installation of lift, the complainants and their family members have been suffering as the old aged family members are facing day to day difficulties in ascending or descending the stairs. Hence, the complaint with prayer for following reliefs, viz. – (a) a direction upon the OPs to provide Completion Certificate, lift installation certificate relating to schedule mentioned flat and the building; (b) to pay compensation of Rs.20,00,000/- for harassment and mental agony and (c) Rs.1,00,000/- as litigation cost.

The Opposite Party Nos. 1 to 4 by filing a written version have stated that the construction and completion of building work is under first progress and will be completed very soon. The OP Nos. 1 to 4 have also stated that the procedure for installation of lift is also under progress and as there is no deficiency in services on the part of them, the complaint should be dismissed.

The OP No.5 (landowner) did not appear to contest.

In support of their case, Sri Abir Dutta, Complainant No.3 has tendered evidence on affidavit. He has also given reply against the questionnaire set forth by OP Nos. 1 to 4.

On behalf of OP Nos. 1 to 4, Sri Avijit Ghosh (OP No.2) has filed evidence on affidavit. As the complainants did not file questionnaire, question of giving reply by OP Nos. 1 to 4 did not arise.

On perusal of pleadings, evidence and the documents available with the record, it emerges that OP No.5 is the owner of a piece of land measuring about 3 cottahs 6 chittaks lying and situated at Holding No.24, Milan Pally, P.S.- Dum Dum, Kolkata – 700079, Dist- North 24 Parganas within the local limits of Ward No.5 of Dum Dum Municipality. On 21.09.2012 OP No.5 entered into a Development Agreement with OP Nos. 1 to 4 and also a supplementary Development Agreement on 22.11.2013 under certain terms and conditions. On 24.10.2011 the landowner has also executed a registered Power of Attorney in favour of the developer.

By dint of the Development Agreement through which the developer was empowered to construct a G+4 storied building over the said land had entered into three Agreements for Sale with the complainants on different dates to sell three flats – (1) in favour of complainant no.1 in respect of a flat measuring about 1180 sq. ft. super built up area being Flat No.2A on the 2nd floor of the said building at a consideration of Rs.27,25,800/-, (2) in favour of complainant no.2 in respect of a flat measuring about 770 sq. ft. super built up area being Flat No.2B on the 2nd floor of the said building at a consideration of Rs.17,78,700/- and (3) in favour of complainant nos.3 & 4 in respect of a flat measuring about 770 sq. ft. super built up area being Flat No.3B on the 3rd floor of the said building at a consideration of Rs.15,93,515/-.

Evidently, the Agreements for Sales were executed on different dates. Similarly, Deed of Conveyances has also been registered by the developer on different dates. In the petition of complaint, the complainants have mentioned that the date of cause of action on and from 10.01.2016 when the OPs/developer have flatly denied to complete the unfinished works.

The factual matrix of the case makes it quite clear that the complainants, who are four in numbers have lodged the complaint against the developer and the landowners alleging deficiency in services in respect of three Agreements for Sale/three Deed of Conveyances. In other words, the complainants have filed the complaint jointly clubbing up the united causes of action.

For appreciation of the situation, it would be worthwhile to reproduce the provisions of Section 12(1)(c) which provides -:-

“Manner in which complaint shall be made.

1. A complaint in relation any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by –

a........

b. ........

c. One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of or for the benefit of, all consumers so interested”.

Admittedly, several persons intended to purchase the flats from the opposite parties and four of them have filed this complaint. This indicates that other flat owners are either satisfied with the construction made by the developer or not interested to lodge complaint. In any case, perusal of prayer clause would show that the relief has not been claimed for other similarly placed persons. The interpretation and scope of Section 12(1)(c) of the Act was the subject matter of adjudication before Three-Member Bench of the Hon’ble National Consumer Commission reported in I (2017) CPJ 1 (Ambrish Kumar Shukla & 21 Ors. – vs. – Ferrous Infrastructure Pvt. Ltd.). While dealing with the scope of Section 12(1)(c) of the Act, the Hon’ble Commission has observed thus –

“The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them, therefore, will not be maintainable. If for instance, 100 flat buyers/plot buyers in a project have a common grievance against the Builder/Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 agreed persons will be compelled either to file individual complaint or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have the legislative intent. The term ‘persons interested’ and ‘persons having the same interest’ used in Section 12(1)(c) means the persons having a common grievance against the same service provider. The use of the words ‘all consumers so interested’ and ‘on behalf of or for the benefit of all consumers so interested’, in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking common relief and consequently having community of interest against the said service provider”.

The materials on record indicate that the complainants have not filed any application for permission of the Commission to file the complaint in a representative capacity in accordance with the provisions of 13(6) of the Act. It should be noted here that the complainants have not mentioned how many flats are there in the build

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ing and how many of them have lodged the complaint and how many of them are still left out. Under the garb of Section 12(1)(c) or Section 13(c) of the Act which are primarily meant for common services, e.g. deficiency in maintaining common areas or common facilities, complaint regarding goods are not maintainable before this Commission particularly, when the flats were booked for different amount on different dates under different terms and conditions. If complaint pertaining to deficiency in goods pertaining to many complaints is allowed in one complaint, it will create serious problem as observed by the Larger Bench of Hon’ble National Consumer Commission in the case of Ambrish Kumar Shukla & 21 Ors. (supra). Considering the above, the complaint being not maintainable is rejected. However, this order will not prevent the complainants to lodge a complaint afresh in respect of same cause of action after removal of defects as indicated above, in accordance with law.
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