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Lakhi Debi Jaiswal v/s Sunil Kumar Shaw


Company & Directors' Information:- D. E. SHAW INDIA PRIVATE LIMITED [Active] CIN = U72200TG1996PTC025388

Company & Directors' Information:- M C SHAW PVT LTD. [Active] CIN = U51228WB1989PTC046980

Company & Directors' Information:- SUNIL & CO PVT LTD [Active] CIN = U32109WB1984PTC037810

Company & Directors' Information:- SUNIL KUMAR PVT LTD [Strike Off] CIN = U17111RJ1985PTC003429

Company & Directors' Information:- W C SHAW PVT LTD [Active] CIN = U51909WB1942PTC010901

Company & Directors' Information:- M L SHAW PVT LTD [Active] CIN = U51909WB1934PTC008071

Company & Directors' Information:- G & H SHAW PVT LTD [Strike Off] CIN = U27310WB1962PTC025389

Company & Directors' Information:- SHAW & CO. PVT LTD. [Strike Off] CIN = U51909WB1953PTC021086

Company & Directors' Information:- R SHAW AND CO. LTD. [Dissolved] CIN = U99999MH1922PTC001006

    Complaint Case No. CC/567/2016

    Decided On, 16 July 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. DIPA SEN (MAITY)
    By, MEMBER

    For the Complainant: Indrani Nandi, Advocate. For the Opp. Party: Anirban Adhikary, Advocate.



Judgment Text

Samaresh Prasad Chowdhury, Presiding Member

The instant complainant under Section 17 (inadvertently mentioned under Section) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of land owner against the developer/builder on the allegation of deficiency in services on the part of him in a dispute of housing construction.

Succinctly put, complainant’s case is that being owner of a piece and parcel of land measuring about 7 Cottahs 6 Chittaks and 36 sq. ft. more or less together with G+2 storied building thereon lying and situated at holding Nos.367 & 369, Belilious Road, P.S & District-Howrah within the local limits of Ward No.17 of Howrah Municipal Corporation, she entered into a development agreement with OP on 20.08.2013 for raising construction over the same. As per agreement, the complainant being owner is entitled to 30% of constructed area proportionally with super built up area on the 3rd floor of the building and Rs.5,00,000/- as security deposit. The complainant has stated that the OP has paid Rs.3,00,000/- only as security deposit at the time of execution of development agreement but did not make the payment of balance amount of Rs.2,00,000/-. The complainant has also executed the registered power of Attorney in favour of the OP on 18.08.2013. It was agreed that the developer shall complete the construction of building within one year from the date of execution of the agreement. The complainant has stated that the OP has constructed six number of flats in the two storied building and handedover one flat on the 3rd floor measuring about 702 sq. ft. though she is entitled to a flat measuring about 1022 sq. ft. Subsequently, the complainant issued a legal notice through her Advocate on 18.05.2016 and revoked the general power of Attorney executed earlier in favour of the OP lodged the complaint with prayer for following reliefs, viz.- (a) a direction upon the opposite party to hand over habitable, peaceful, vacant complete and Khas possession of the flat constructed in G+2 Building measuring about 1200 sq. ft. more or less with super built up area and proportionate share of stair and other facilities; (b) to direct to pay Rs.6,000/- per month to the complainant till the date of handing over possession of the flat; (c) to complete the unfinished works as stated in the petition of complaint; (d) to pass an order directing to pay the complainant a reasonable compensation of Rs.10,00,000/- only for mental agony and physical harassment caused by the opposite party for not constructing the flat within the time stipulated in the Development Agreement for not handing over Khas possession for about last three years and for not handing over the building Completion Certificate of the said building from the Howrah Municipal Corporation; (e) cost of Rs.40,000/-; and (f) any other relief or reliefs to which the complainant is entitled in law and equity.

The Opposite Party did not file written version within the stipulated period prescribed under law. Therefore, in view of decision of Hon’ble Supreme Court reported in 2016(1) Supreme 319 (New India Assurance Company Ltd. Vs.- Hilli Multi Purpose Cold Storage Pvt. Ltd.) the opposite party has been prevented from filing 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 has been given opportunity to file questionnaire to test the veracity of statement of complainant and to address argument in respect of the complainant’s case.

During hearing of the case, complainant has tendered evidence on affidavit. She has also given reply against the questionnaire set forth by OP.

As noted earlier, OP could not file the written version and as such question of leading evidence on the part of him does not arise.

Undisputedly, the complainant is the owner of a piece and parcel of land measuring about 7 Cottahs 6 Chittaks and 36 sq. ft. more or less together with G+2 storied building thereon lying and situated at holding Nos.367 & 369, Belilious Road, Howrah – 711101, P.S & District-Howrah within the local limits of Ward No.17 of Howrah Municipal Corporation. On 20.08.2013, the complainant being owner had entered into an agreement with the OP to construct the floors upon the said G+2 building.

As per terms or the agreement, the owners allocation shall mean the owner will get 30% constructed area proportionally with super built up area on the 3rd floor of the building and Rs.5,00,000/- as security deposit out of which Rs.3,00,000/- has been paid at the time of execution of agreement and it was stipulated that the balance amount of Rs.2,00,000/- only shall pay after completion of 3rd floor RCC work and the security amount will be adjusted from the owners allocation @ Rs.3,000/- per sq. ft. and the balance 70% of constructed area will be allocated to the developer. Clause 4.6 of the development agreement provides that the total construction will be completed within one year from the date of execution of the development agreement.

It is not in dispute that the OP has completed the construction of the building. The unchallenged testimony of complainant also speaks that the OP constructed six numbers of flat above the said building but only one flat has been provided to the complainant measuring about 702 sq. ft.

Needless to say, the parties are bound by the agreement. A person who signs a document contain certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect. In a decision reported in AIR 1996 SC 2508 (Bharati Knitting Company –vs. – DHL Worldwide Express Courier Division of Airfreight Ltd. ) the Hon’ble Supreme Court has observed thus :

"It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F.Nariman, Ld. Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M.N.Krishanmani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon it own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract”.

Therefore, in accordance with the terms of the development agreement the complainant is entitled to 30% of the total constructed area and as such it is incumbent upon the OP to measure the building and to handover 30% of the owner’s allocation of total constructed area as per terms of the agreement in favour of the complainant.

The complainant in his evidence on affidavit has stated that the OP paid Rs.3,00,000/- and Rs.2,00,000/- for construction of G+2 building with ratio of 30 and 70. In a question put on behalf of OP whether the complainant paid any amount in consideration to purchase anything or obtain service from the OP to which the complainant has replied that the OP paid Rs.3,00,000/- to her as security deposit out of the amount of Rs.5,00,000/- as agreed upon. Therefore, when in a specific question the complainant has categorically stated that the OP has paid her Rs.3,00,000/- out of Rs.5,00,000/- and OP did not file any affidavit or document to controvert the same, it shall be presumed that the OP has paid Rs.3,00,000/-only as security deposit out of agreed amount of Rs.5,00,000/-.

The complainant has levelled the allegation against OP for not making outside plaster and incomplete fitting fixtures but did not make any application for appointment of an Engineer Commissioner to substantiate the same in accordance with Section 13(4) of the Act. In other words, when best evidence has been withdrawn by the complainant/land owner to that effect, no adverse presumption should be drawn against OP regarding the same.

In any case, the claim of the complainant about a flat of 1200 Sq. Ft. in the 3rd floor cannot be accepted but at the same time she is entitled to 30% of the total constructed super built up area of the building and as such if it is found that after measurement the flat provided to the complainant is less than that area, certainly the complainant is entitled to the same.

Ld. Advocate for OP /developer submits that the land owner has revoked the power of Attorney on 10.05.2016 and as such it would not be possible for OP to do anything further. The submission made by the Ld. Advocate for OP does not appear to be acceptable. It may be difficult on the part of OP to obtain Completion Certificate from the Howrah Municipal Corporation but there is no hurdle on the part of OP to provide land owners allocation as per terms of agreement dated 20.08.2013.

On evaluation of materials on record and having heard the Ld. Advocate appearing for the parties, it appears that the complainant being consumer as defined in Section 2(1)(d) of the Act hired the services of OP/ developer on consideration and OP has failed to fulfil his part of obligations as per development agreement dated 20.08.2013 and thereby deficient in rendering services towards the complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainant is entitled to some reliefs. In my view, a direction upon the OP to handover owners allocation in accordance with the agreement and to pay Rs.2,00,000/- as balance amount of security deposit will meet the ends of justice. The complainant has suffered much due to failure on the part of the OP to fulfil his part of obligations and as such the complainant is entitled to compensation for the harassment and mental agony suffered by her. In our view, considering the loss suffered by the complai

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nant, a compensation of Rs.50.000/- in the facts and circumstances of the case will meet the ends of justice. As the situation compelled the complainant to lodge the complaint, he is entitled to litigation cost which I quantify at Rs. 10,000/-. In view of above discussion, the complainant is allowed on contest with the following directions – i. The Opposite Party is directed to provide 30% of the total constructed area in favour of the complainant as per development agreement dated 20.08.2013 by appointing an Engineer Commissioner within 90 days from date; ii. The Opposite Party is directed to make payment of Rs.2,00,000/- in favour of complainant as balance security deposit within 60 days from date; iii. The Opposite Party is directed to pay compensation of Rs.50,000/- in favour of the complainant within 60 days from date; iv. The Opposite Party is directed to pay Rs.10,000/- as cost of litigation to the complainant; v. The above amount as mentioned in (ii), (iii) and (iv) must be paid within 60 days from the date, in default, the amount shall carry interest @ 9% p.a. from date till its realisation.
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