w w w . L a w y e r S e r v i c e s . i n


Minati Roy Nee Baidya & Another v/s M/s. G.R. Properties, Rep. by its Partners & Others

    Complaint Case No. CC/18/2016
    Decided On, 16 August 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: Keka Chakraborty, Uttiya Saha, Advocates. For the Opp. Party: Alok Mukhopadhyay, Tanusree Dhar, Janapriya Banerjee, Subhransu Bandyopadhyay, Mousumi Roy, Prasanta Kr. Mondal, Advocates.


Judgment Text
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/purchasers against the partnership construction firm (Opposite Party No.1) and its partners (Opposite Party Nos. 2 to 4), the second confirming parties (Opposite Party Nos. 5 & 6) and the land owners (opposite party Nos. 7 to 9) on the allegation of deficiency in services, primarily on the part of Opposite Party Nos.1 to 4/developer in a consumer dispute of housing construction.

Succinctly put, Complainants’ case is that the opposite party Nos. 5&6 being the intending purchasers had entered into an agreement for sale on 14.03.2010 with the opposite parties being the developers and the land owners to purchase of a self-contained flat measuring about 1272 sq. ft. being flat No. D on the second floor along with one car parking space cum garage on the ground floor of premises No. 49A, Dr. Suresh Chandra Banerjee Road, P.S.-Beliaghata, Kolkata-700010, Dist-South 24 Parganas within the local limits of Ward No. 34 of the Kolkata Municipal Corporation (KMC) at a total consideration of Rs.41,66,000/-. However, due to some personal reasons the OP Nos. 5&6 intended to cancel the deal and accordingly the developer agreed to refund the amount from the sale proceeds of the said flat along with car parking space. Thereafter, the complainants entered into an agreement for sale with the developer (OP Nos. 1 to 4) and the second confirming parties (OP Nos. 5 & 6). Ultimately, the complainants purchase the said flat and car parking space by virtue of a registered Deed of Conveyance dated 07.10.2013 at a total consideration of Rs.42,00,000/- in favour of OP Nos. 5&6 and obtained physical possession of the flat from OP No.1/developer and only symbolic possession with respect to the car parking space on the ground floor. Soon thereafter, the complainants noticed and found that the car parking space allotted to them has a very narrow outlet from where it is impossible for any car to move in and out from the said car parking space. The complainants have stated that they could not able to manage to put their car inside on the said garage in the premises in question. The complainants have alleged that the OPs have erected and constructed some illegal construction at the ground floor which creates more trouble in the smooth ingress and egress of the car parking space allotted to them. In this regard, all the requests and persuasions of the complainants to remove the obstacles including the legal notice dated 28.11.2015 went in vain. Hence, the complainants have come up in this Commission with the instant complaint with prayer for the following reliefs, viz.- (a) to direct the OPs jointly and severally to make necessary arrangements by ensuring a free and smooth ingress and egress of car in the car parking space; (b) to direct the OPs to obtain Completion Certificate in respect of the building in question; (c) to direct the OP Nos. 1 to 6 to pay compensation to the tune of Rs.3,00,000/-; (d) to direct the OP Nos. 1 to 6 to pay litigation cost of Rs.50,000/- etc.

The Opposite Party No.2 i.e. one of the partners of the OP No.1 construction firm by filing a written version has stated that as the complainants are already enjoying the ownership of the car parking space, they are not entitled to any relief. The OP No.2 has also stated that the Completion Certificate has not yet been issued by the Kolkata Municipal Corporation.

The OP Nos. 5&6 by filing a joint written version have stated that on 14.03.2010 they entered into an agreement with the OP Nos. 1 to 4 to purchase of the subject flat and the car parking space at a total consideration of Rs.41,66,000/-. Subsequently, the complainants purchased the said flat by way of a Deed of Conveyance dated 07.10.2013 at a consideration of Rs.42,00,000/- and thereafter the OP Nos. 1 to 4 cancelled the Agreement for Sale dated 14.03.2010. The OP Nos. 5&6 have stated that as they have no connection to the work of construction pertaining to the alleged flat and the car parking space, the complaint should be dismissed against them.

The OP Nos. 8 & 9 (landowners) by filing separate written versions have stated that they are not concerned or related of any part or portion of developers allocated portion nor they received a single penny for the transfer of any portion of the premises to any purchaser and as such the complaint should be dismissed against them.

The complainants, OP No.2 and OP Nos. 5 & 6 have filed evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. During hearing of the case, one Mr. K.S. Bhatia, Ld. Engineer Commissioner was appointed for the purpose of proper adjudication of the dispute and the report filed by the Ld. Engineer Commissioner is available with the record. Besides the same, the parties have relied upon several documents. At the time of final hearing on behalf of complainants’, a brief notes of arguments has been filed but though OP No.2 participated in the final hearing through his Advocate but did not file any brief notes of argument.

The pleadings of the parties and evidence on record make it quite clear that the OP Nos. 7 to 9 or their legal heirs are the land owners in respect of a piece of land containing an area of 5 Cottahs 4 Chittaks together with the building standing thereon lying and situated at premises No. 49A, Dr. Suresh Candra Banerjee Road, P.S. - Beliaghata, District- South 24 Parganas, Kolkata- 700010 within the local limits of Ward No. 34 of Kolkata Municipal Corporation. On 22.04.2009 the land owners had entered into development agreement with the developer for raising construction of G+4 storied building over the said premises. Accordingly, the developer has obtained the sanction building plan from the Kolkata Municipal Corporation on 26.02.2010. The fact remains that the flat and car parking in question falls within the developers allocation and the developer was given the right to sell the property from the developers allocation.

It is not in dispute that on 14.03.2010 the OP Nos. 5 & 6 being the intending purchasers had entered into an Agreement for Sale with the developer and the land owners to purchase of a self contained flat measuring about 1272 sq. ft. more or less have flat No. D on the 2nd floor along with one car parking space cum garage at the ground floor of the said premises at a total consideration of Rs.41,66,000/-. It has also come to surface that thereafter due to some reasons, the OP Nos. 5 & 6 intended to cancel the said agreement and developer agreed to the said proposal on condition that the amount paid by OP Nos. 5&6 shall be refunded to them from the sale proceeds of the said flat along with car parking space.

It also remains undisputed that the complainants who were in need of a flat in that locality agreed to purchase the subject flat and car parking space at a total consideration of Rs.42,00,000/-. Accordingly, on payment of entire consideration amount on 07.10.2013 a deed of conveyance was executed in favour of the complainants in which the developers/OP Nos. 1 to 4 as first confirming parties and the intending purchasers i.e. OP Nos. 5 & 6 being second confirming parties put their signatures. On execution of the said Deed of Conveyance, the Agreement for Sale in between the developer and OP Nos. 5 & 6 was stood cancelled.

The whole trouble begun when after taking possession of the flat and car parking space the complainants found it difficult to keep their car inside the car parking space allotted to them. The complainants have categorically mentioned that the car parking space has a very narrow out let from where it is impossible for any car to move in and out from the said car parking space. In order to prove the alleged deficiencies, at the behest of the complainants, one Mr. K.S. Bhatia, Ld. Engineer Commissioner from the panel of the Commission was appointed to examine the situation and to report. The Ld. Engineer Commissioner inspected the locale in presence of both the parties and submitted his report and the extract of the report is recorded below –

“1. There is no passage for entry of seven Nos. of cars for parking on park8ing spaces on ground floor out of which one car parking space is owned by the complainants.

2. As per sanctioned building plan sanctioned by Calcutta Municipal Corporation, “Deviation would mean Demolition”. This shop of size 11 feet x 6 feet constructed on common space and provided for entry of car inside the building plan needs demolition without demolition of this shop of 11 feet x 6 feet in size, no car can enter the building.”

The Ld. Engineer Commissioner has also proceeded to observe:-

“The space for ingress & egress of car in the building has been blocked by unauthorised and illegal construction at the entrance of ten feet wide passage provided in the drawing for entry of cars. Immediate demolition of the shop is required to enable the car owners to take the car inside the building and use the space on ground floor of the building. There is no other passage to take the car inside the building.”

The materials on record speaks that no written objection against the report of Ld. Engineer Commissioner has been filed. The work of commission has been done in presence of both sides and it contains Field Notes and Minutes of Meeting. The report is supported by site plan and other documents. Therefore, there is hardly any reason to disbelieve the report given by the Ld. Engineer Commissioner. Referring to the same, it can be safely said that there is not only shortage of space to move in and out by a car in the ground floor but the situation has more worsened due to construction of one unauthorised shop in violation of sanctioned building plan. In order to give space for ingress and egress of the car, the unauthorised illegal construction of the shop must be demolished. Therefore, the alleged deficiencies on the part of developer in providing proper space for keeping car of the complainants has been proved beyond shadow of any reasonable doubt.

Ms. Tanushree Dhar, Ld. Advocate for OP Nos. 1 & 2 has submitted that the complaint is barred by limitation in view of the provisions of Section 24A of the Act. She has contended that the Deed of Conveyance in favour of the complainants was executed on 07.10.2013 and on that date the delivery of possession was given but the instant complaint was lodged on 18.01.2016 much after two years from the date of delivery of possession. She has also submitted that by exchange of letters or communications, the period of limitation cannot be extended. In support of her contention, she has placed reliance to a decision of Hon’ble National Commission reported in (2015) CJ 187 [Pappu Managaratanam – Vs. – Sai Sha Finance & Chits & Anr.] and also another decision of the Hon’ble National Commission reported in (2015) CJ 498 [Harbhajan Sharma – Vs. – Haryana Urban Development Authority]. It is well settled that after accepting the consideration amount as per agreement, the developer is under obligation to – (a) deliver possession, (b) execute and register the Sale Deed and (c) obtain completion certificate/occupancy certificate from the authority concerned. In the instant case, the OP No.2 in his written version has admitted that Completion Certificate is yet to be obtained from the Kolkata Municipal Corporation. Therefore, when Completion Certificate has not yet been obtained, for non-fulfilment of statutory obligation, the cause of action in the instant case is a continuous one. Therefore, the referred decisions have no application in the facts and circumstances of the case.

On the contrary, Mr. Prabir Basu, Ld. Advocate with Ms. Keka Chakraborty and Mr. Uttiya Saha, Ld. Advocates inviting our attention to a decision of the Hon’ble National Commission reported in 2019 (1) CPR 297 [Vikas Garg – Vs.- EMMAR MGF Land Ltd. & Anr.] has submitted that the complainants having been allotted a residential flat and car parking space to be developed by the OP Nos. 1 to 4, the OP Nos. 1 to 4 cannot shirk off their responsibility in providing the car parking space to the complainants for effective use of the same. In the referred decision, it has been held that mere execution of Conveyance Deed does not come in way of a flat owner seeking compensation for defects or deficiency in services rendered to them by service provider if they otherwise to able to prove such defects or deficiencies.

On evaluation of materials on record, it transpires that the complainants being ‘consumer’ as defined in Section 2(1)(d) of the Act hired the services of OP Nos.1 to 4 and also OP Nos. 5 & 6 (intended purchasers) on consideration and OP Nos.1 to 4 being developers has failed to fulfil their part of obligations in ensuring a free and smooth ingress and egress of the car in the car parking space allotted to them on the ground floor of the Premises No. 49A, Dr. Suresh Chandra Banerjee Road, P.S.-Beliaghata, Kolkata-700010, Dist-South 24 Parganas within the local limits of Ward No. 34 of the Kolkata Municipal Corporation (KMC) and thereby deficient in rendering services towards the complainants within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainants are entitled to some reliefs. In our view, a direction upon the OP Nos.1 to 4 to make necessary arrangements to provide car parking space to the complainants for smooth ingress and egress alternatively to provide a separate car parking space within 90 days will meet the ends of justice. Since it is statutory obligation on the part of OP Nos. 1 & 2 to obtain Completion Certificate, the OP Nos. 1 to 4 must obtain the same and to handover an authenticate copy to the complainants within 90 days. Despite payment of entire consideration amount, when the complainants were deprived from keeping their car in the car parking

Please Login To View The Full Judgment!
space allotted to them for about long six years, we assess the compensation at Rs.3,00,000/- in the facts and circumstances will meet the ends of justice. Under compelling circumstances, the complainants have to knock the door of a Forum constituted under the Act and therefore, complainants are entitled to litigation cost which we quantify at Rs.20,000/-. With the above discussion, we dispose of the complaint with the following directions – i. The Opposite Party Nos.1 to 4 are jointly and severally are directed to make necessary arrangement by ensuring a free and smooth ingress and egress of car in the car parking space allotted to the complainants or alternatively to provide a separate car parking space at the ground floor of the apartment lying and situated at Premises No. 49A, Dr. Suresh Chandra Banerjee Road, P.S.-Beliaghata, Kolkata-700010, Dist-South 24 Parganas within the local limits of Ward No. 34 of the Kolkata Municipal Corporation (KMC) within 90 days from date; ii. The Opposite Party Nos. 1 to 4 are jointly and severally directed to obtain Completion Certificate from the Kolkata Municipal Corporation and to handover an authenticate copy to the complainants within 90 days from date; iii. The opposite party nos.1 to 4 are jointly and severally directed to pay compensation of Rs.3,00,000/- in favour of the complainants within 90 days from date; iv. The Opposite Party Nos. 1 to 4 are jointly and severally directed to pay Rs.20,000/- as cost of litigation to the complainants within 90 days from date;
O R